Two men jailed for the manslaughter of Det Garda Jerry McCabe have secured leave to take a High Court challenge to the Government's continuing refusal to treat them as prisoners qualifying for release under the Belfast Agreement.
Mr Patrick Gageby SC, for Pearse McAuley and Jeremiah Sheehy, said an "illegal, unwarranted, biased and prejudiced" legal decision by the Government and the Minister for Justice, Equality and Law Reform, was at the heart of the men's claim
Mr Justice Ó Caoimh gave the men leave to seek, in judicial review proceedings, a declaration that they were qualifying prisoners and a declaration that the Government, by its stance, was breaching the agreement.
On February 9th, 1999, McCauley (37) from Strabane, Co Tyrone, and Jeremiah Sheehy, from Limerick, were jailed for 14 years and 12 years respectively after pleading guilty at the Special Criminal Court to the manslaughter of Det Garda McCabe outside Adare post office, Co Limerick, in 1996.
Kevin Walsh (45) Patrickswell, Co Limerick, got a 14-year jail term and Michael O'Neill got 11 years for the same offence.
Yesterday, Mr Gageby said his clients were seeking a review of a Government decision that they were not entitled to be considered as qualifying prisoners under the terms of the Belfast Agreement and the Criminal Justice (Release of Prisoners) Act 1998.
In an affidavit, Mr Garrett Sheehan, their solicitor, said the agreement clearly stated that the "intention would be that should the circumstances allow it, any qualifying prisoner who remained in custody two years after the commencement of the scheme would be released at that point".
The men were taken into custody in Portlaoise prison in November 1999. They were transferred to Castlerea prison, Co Roscommon, and from time to time were on temporary release.
Mr Sheehan said he believed the British authorities were no longer proceeding with their application to extradite McAuley on offences of conspiracy to murder and escape from Brixton prison. He believed they now conceded that McAuley would be a qualifying prisoner in Britain. All other persons convicted of offences before the Special Criminal Court committed by or on behalf of the IRA, or in connection with its activities, had been released from custody under the agreement.
Mr Sheehan said the Minister for Justice had consistently made statements which illustrated he had predetermined the issue of the men's release. He had taken into account the following irrelevant factors: representations from families of deceased members of the Garda; representations from the Garda Representative Association and constituency concerns. In the context of the agreement, the Government's attitude effectively meant there were no circumstances which would permit the release of the two men, he said.