The Supreme Court yesterday rejected a fresh attempt to free two men convicted of involvement in the killing of Det Garda Jerry McCabe.
The Chief Justice, Mr Justice Ronan Keane, said the application brought on behalf of Michael O'Neill and John Quinn "is not even remotely within the category of exceptional circumstances as where a great breach of natural justice has unwittingly occurred and where an applicant would be entitled to invoke this exceptional jurisdiction to reopen his case."
The late Garda McCabe was killed and a colleague, Det Garda Ben O'Sullivan, was injured during an attempted armed robbery in the village of Adare, Co Limerick, on June 7th, 1996.
O'Neill and Quinn were subsequently arrested, together with others. The trial of the two had been at hearing for some days in the Special Criminal Court when they were rearraigned on new charges on January 11th, 1999.
O'Neill pleaded guilty to the manslaughter of Garda McCabe, to unlawfully and maliciously wounding Garda O'Sullivan and having firearms. He was given an 11-year prison sentence. Quinn pleaded guilty to conspiring with other persons to commit robbery and got a six-year prison sentence.
In 2002 O'Neill and Quinn applied unsuccessfully to the High Court for declarations that they should be released under the terms of the Belfast Agreement. (Some 57 prisoners in the Republic and 444 in Northern Ireland have been released under the agreement).
Both men appealed the High Court decision to the Supreme Court, which last January upheld the High Court finding. In the unanimous judgment of the Supreme Court, Mr Justice Keane said the Government had decided as a matter of policy that the release-of-prisoners provision in the Good Friday agreement would not be operated in the case of persons convicted in connection with Det Garda McCabe's killing.
The judgment also stated that O'Neill's and Quinn's cases differed from others in that the convictions came after the conclusion of the Belfast Agreement.
Yesterday Dr Michael Forde SC, for the two prisoners, argued that the court should set aside its January decision and rehear the appeals because, he claimed, the judgment was based on an error of fact.
He said that, contrary to the Supreme Court judgment, other prisoners who were convicted following the signing of the Belfast Agreement in April 1998 had been released.
Counsel claimed there were exceptional circumstances for the reopening of the case because O'Neill and Quinn maintained that they had been discriminated against contrary to Article 40 of the Constitution.
He submitted that the Supreme Court gave its decision based on an argument (that the men's convictions came after the signing of the agreement) that he never had an opportunity to deal with.
Mr Justice Keane rejected Dr Forde's argument and said the onus had been on counsel to satisfy the court that there had been unconstitutional discrimination against his clients and not on the State.
Mr Donal O'Donnell SC for the State, said that, as the Supreme Court was an appeal court, then facts - which were a matter for the High Court - and factual errors formed no part of the appeals court's considerations. The Constitution explicitly stated that the decision of the Supreme Court was final and conclusive.