THREE top-security prisoners in Portlaoise Prison who had been freed and rearrested applied to the High Court yesterday to be released, claiming they were illegally detained.
The three Mr Gabriel Cleary (52), Friarstown, Tallaght, Co Dublin; Mr Jeremiah Sheehy (36), Abbey Park, Rathkeale, Co Limerick; and Mr Brian McNally (54), with an address at Knocksinna Park, Foxrock, Dublin - were freed on the orders of the Minister for Justice, Mrs Owen, last November but subsequently rearrested.
They were among 16 prisoners in three prisons who became involved in the crisis over the composition of the Special Criminal Court. The court was told yesterday that five of the 16 prisoners did not wish to pursue their claims of being unlawfully detained.
The prisoners were freed when it was discovered they had appeared before a Special Criminal Court sitting on October 15th last which included a judge who was not then a member of that court.
Circuit Court Judge Dominic Lynch had asked to be replaced and was removed in August 1996 but was not informed of the decision.
The 16 prisoners were arrested on the same night as the Minister ordered their release. They appeared at a subsequent Special Criminal Court sitting and were charged with the original offences.
Mr Cleary and Mr McNally were charged with having possession of 16 improvised mortar bombs containing Semtex at Barryfarrell, Clonaslee, Co Laois, on June 20th last with intent to endanger life and with unlawful possession of the mortar bombs.
Mr Sheehy and another man faced charges resulting from the investigation into the murder of Det Garda Jerry McCabe in Adare, Co Limerick. Mr Sheehy was charged with IRA membership on June 8th and possession of a firearm with intent to endanger life on June 7th, when Det Garda McCabe was shot.
Mr Patrick Gageby SC, for the three men, told Mr Justice Kelly that Mr McNally was unable to travel to court because of an injury and that five Derry men did not wish to proceed with their applications under Article 40 of the Constitution.
The five men are: Mr Patrick Kavanagh (33), Chamberlain Street; Mr Hugh Wilkinson (44), Dunmore Gardens; Mr Paul Murray (24), College Glen; Mr Bernard O'Hagan (35), Hatmore Park; and Mr Patrick Gerard McCartney (45), Glenowen Park. All were charged with possession of two AKM assault rifles with intent to endanger life at Ballygorman, Malin, Co Donegal, on October 27th last, with unlawful possession of the rifles and possession of 100 rounds of ammunition, with intent to endanger life, and unlawful possession of the ammunition.
Mr Justice Kelly dismissed the five applications.
In their statement of claim Mr Cleary, Mr Sheehy and Mr McNally allege that the State deliberately delayed their release so that a force of gardai could be "instructed in the facts sufficient to make the appearance of a good arrest at common law at Portlaoise Prison".
Alternatively the release was delayed to ensure that a large force of gardai had been marshalled and placed within the prison confines to ensure the men were never in law released from custody.
The State admits the October 15th Special Criminal Court was not properly constituted but denies that the three men are at present in unlawful detention.
Mr Cleary, in an affidavit, said his release was put into effect only after a large number of gardai, assisted by prison officers and armed soldiers, assembled for the purpose of ensuring that he did not leave the jail. He was never at liberty.
The hearing continues on Tuesday.