"THE problem" concerning the 16 high security prisoners in unlawful custody first surfaced in the Chief State Solicitor's office (CSSO) on November 5th last year. That was three weeks after the improperly constituted Special Criminal Court had sat.
The divisional court of the High Court yesterday set out the sequence of events which ended in the re arrest of Michael Hegarty and his being re charged before a new Special Criminal Court.
Mr Brendan Counihan, a solicitor in the CSSO in charge of Special Criminal Court prosecutions, began as a result of conversations in the office to have some concern about the status of Judge Dominic Lynch.
He telephoned the registrar of the Special Criminal Court, who returned the call at 4.20 p.m. on November 6th, informing Mr Counihan that he (the court registrar) had an extract from An Iris Oifigiuil (the official Government notice paper). It confirmed the removal of Judge Lynch.
Ten minutes later he telephoned Mr Barry Donoghue in the DPP's office and told him of the problem.
Mr Donoghue passed the information directly to the DPP. He also telephoned Mr Noel Synott, principal officer in charge of the Courts Division, who confirmed that Judge Kevin Haugh had been appointed to the Special Criminal Court in substitution for Judge Lynch.
The DPP contacted the Attorney General's office and spoke to Mr Jim Hamilton, the senior legal assistant. The DPP made it clear that the continuing custody of the prisoners was a matter for the Minister and prison governor.
From the moment he realised there might be a release, the DPP applied his mind to the problem of how he could effectively prosecute the released prisoners for the offences for which they had already been charged. The necessary instructions were given to the Garda between 6.30 p.m. and 7 p.m.
The Secretary of the Department of Justice, Mr Jim Dalton, first learned of the problem when travelling that evening in a car from Baldonnel Airport, to which he had flown following all day talks in Belfast in the company of the Minister. Mr Dalton telephoned the DPP at about 7.20 p.m. to get information.
The court found the "root cause of the problem was the failure of the Department of Justice to notify Judge Lynch or the registrar of the Special Criminal Court or any other relevant person of the removal of Judge Lynch as a member of the Special Criminal Court".
The "lamentable catalogue of errors" which led to this state of affairs, Mr Justice Geoghegan observed, were contained in the Cromien report.
The result was that, until Mr Synott received the telephone call from Mr Donoghue on the afternoon of November 6th, "the relevant officers of the Department were blissfully unaware of any problems relating to the validity of Special Criminal Court orders".
Mr Synott had discussions with other Department officials. It was decided to get advice from the Attorney General's office and get precise details of cases heard by Judge Lynch.
While this information was being awaited, the scene changed to the car in which Mr Dalton and the Minister's private secretary were returning from Baldonnel.
Mr Dalton received a call on his mobile telephone from Deputy Garda Commissioner Conroy, who told him of the DPP's instructions as to the rearrest of the prisoners in the event of their being released. He also outlined to Mr Dalton the problem resulting from the removal of Judge Lynch.
The Minister's private secretary, who had partly overheard the telephone conversation, told Mr Dalton that correspondence had been received from the Attorney General regarding Judge Lynch's position. The court accepted Mr Dalton's evidence that that was the first time he had heard of any such correspondence.
Mr Dalton immediately telephoned Mr Synott, who explained the nature of the problem. After speaking to the DPP, Mr Dalton spoke to Mr Hamilton of the Attorney General's office. At 9.44 p.m. Mr Hamilton telephoned Mr Dalton and informed him the Attorney General advised that the men should be released.
Mr Dalton consulted Department officials concerned with the prisons division, as there were obviously staff and other problems involved in the release of prisoners at night, particularly in Portlaoise Prison.
Mr Dalton succeeded in contacting the Minister at about 10.30 p.m. and she made a decision for release. Mr Dalton then requested Deputy Commissioner Conroy to inform him when prisoners had been released and as to whether they had been re arrested or not.
At about 11.40 p.m. the Limerick prison governor was told by Garda Supt Kennelly that he had instructions that Hegarty was to be re arrested on release. The governor contacted Mr Aylward, principal officer of the prisons division, who instructed him to release Hegarty.
Assistant Chief Prison Officer Clifford was instructed to escort Hegarty and remove handcuffs at the property perimeter. Mr Clifford reported to the governor at 12.15 am. that Hegarty had been released but that when the handcuffs were taken off, he tried to push his way back into prison and staff had ushered him on to the footpath, where he was arrested.
Hegarty refused to leave the prison until he received his money, and force was used by staff to eject him. In the court's view Hegarty's release occurred when the handcuffs were removed at some stage before reaching the outer gate.
The gardai went to Limerick prison at 11.35 p.m. and waited until Hegarty was released. Det Insp Kerin had described how at 12.11 a.m. Hegarty came out of the prison and the inspector put his right hand on Hegarty's shoulder and arrested him.
Hegarty was brought to the Bridewell in Dublin and from there to the Special Criminal Court.