The Minister for Justice has specified Dessie O'Hare is a "qualifying prisoner" for early release under the terms of the Belfast Agreement, it emerged at the High Court yesterday. Lawyers for O'Hare argued this meant he should have been released last July.
Mr O'Donoghue has said O'Hare's case was referred to the Release of Prisoners Commission on November 17th, 2000, seven months after he applied to be considered a qualifying prisoner. He said yesterday that as O'Hare's application was being processed by the commission, his legal proceedings aimed at securing his release were moot (unnecessary).
The hearing of O'Hare's judicial review application for a number of orders and declarations, including a declaration that he is in unlawful custody, concluded yesterday and judgment was reserved.
Mr Justice O Caoimh said he would give the Minister an opportunity to come into court on April 26th and explain what was the present "state of play" within the Department regarding O'Hare's application.
Mr Patrick Gageby SC, for O'Hare, argued the Minister was seeking to hide behind the commission. He said the Belfast Agreement provided for the release of all qualifying prisoners by July 28th, 2000. All qualifying prisoners in Britain and Northern Ireland had been released but this was not the situation in this State. The release of his client was not a "gift" of the Minister but was required under the terms of the Belfast Agreement and the Criminal Justice (Release of Prisoners) Act 1998, Mr Gage by argued. The 1998 Act was enacted to enable the accelerated release of prisoners under the terms of the agreement.
O'Hare, who described himself in an affidavit as a member of the Irish National Liberation Army and officer commanding the INLA group in Portlaoise Prison, has served 14 years of a 40-year sentence imposed by the Special Criminal Court in 1987 in relation to the kidnap and assault of Mr John O'Grady.
His three co-convicts - Mr Edward Hogan, Mr Fergal Toal and Mr Anthony McNeill - have been released. With Mr Hogan and Mr Sean Hughes he applied for early release under the terms of the Belfast Agreement in May 2000. Mr Hogan and Mr Hughes were freed 18 days later.
Mr Gageby said his client received a holding response from the Minister for Justice until legal proceedings were taken in September 2000. In a let ter dated December 7th, 2000, the Minister informed O'Hare he had, under section 3 of the 1998 Act, specified on November 17th, 2000, that he was a qualifying prisoner. Nothing had happened since.
O'Hare was a qualifying prisoner, supported the peace process and Belfast Agreement and was a member of an organisation maintaining a ceasefire. There were no circumstances, personal, general or political, which warranted his being treated differently from other qualifying prisoners.
Mr Sean Ryan SC, for the State, said if the 1998 Act intended all qualifying prisoners to be released by July 28th, 2000, the Act would state that. That was not the case. A statement by the Taoiseach, Mr Ahern, and the British Prime Minister, Mr Blair, that all prisoners would be freed by that date should not be taken into account.
He said the High Court had held in another case that even where one was a qualifying prisoner for release, one might still not be released on foot of considerations of the seriousness of the offence involved and the need to protect the community. He said the 1998 Act provided for the establishment of the Release of Prisoners Commission to advise the Minister. He was bound to have regard to that advice and the commission was also entitled to seek further information from the Minister.
The Minister had specified O'Hare as a qualifying prisoner last November 17th. The case was referred the same day to the commission. On November 29th, it sought reports from a psychologist, a psychiatrist and security from the Minister. The psychologist's report was provided on February 5th and the other two reports were expected "within weeks", Mr Ryan said.
These would allow the commission formulate its advice and the Minister was bound to have regard to that but not bound to accept it.
Mr Justice O Caoimh said the commission had received the same response to its request for information as O'Hare's solicitor had the previous September. He was mystified by the delays in producing the reports.
The duty was on the Minister to provide the information. Mr Ryan said he was slow to accept the delay was the fault of the Minister, who was not entitled to say there had been too much delay and that he would make his decision without considering the commission's advice.
