The tug-of-war over the McCabe killers

The status of the killers of Garda Jerry McCabe has been in dispute almost since the killing

The status of the killers of Garda Jerry McCabe has been in dispute almost since the killing. Mark Hennessy and Carol Coulter untangle the arguments.

Sinn Féin's Mr Gerry Adams and Mr Martin McGuinness have entered Government Buildings many times since the 1998 Belfast Agreement.

On nearly every single occasion, they, or their companions, have made it clear that they wanted the killers of Det Garda Jerry McCabe released.

Under the Belfast Agreement, passed by referendum on both sides of the Border in May 1998, "qualifying" paramilitary prisoners were to be released within two years.

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During the referendum campaign and afterwards, the Government repeatedly insisted that the McCabe prisoners, now held in Castlerea Prison, Co Roscommon, did not qualify.

Today, however, the Government insists that it has not broken its word: that the men would not be released under the agreement.

The archives, both from the Houses of the Oireachtas and elsewhere, support the Government's contention, except for one crucial occasion in December 1999.

Faced with a furore over the men's transfer from Portlaoise Prison to Castlerea Prison, in December 1999, Mr John O'Donoghue wrote to the garda's widow, Ms Ann McCabe, following an earlier meeting with her.

In the letter, the then minister for justice, equality and law reform wrote: "I hope what I said to you at the meeting provided you with assurance that there is no question of granting early release to those concerned, either under the terms of the Good Friday agreement or, for that matter, on any other basis either."

The four men, Pearse McAuley, Jeremiah Sheehy, Kevin Walsh and Michael O'Neill are serving between 11 and 14 years for the manslaughter of the detective.

Though the IRA initially denied involvement, it acknowledged later that the robbery had been an "unsanctioned act" carried out by some of its members.

While the issue has become confused with time, the IRA was not on ceasefire in June 1996.

The Canary Wharf bombing in London happened in February and the ceasefire was not restored until the end of July.

Another man, Mr John Quinn, Faha, Patrickswell, Co Limerick, was convicted of conspiracy and possession of ammunition in relation to the same offence, but he has since been released.

The four still in jail had faced capital murder charges, but the Director of Public Prosecutions was forced to settle for less when witnesses retracted statements.

Two of them, Mr Patrick Walsh and Ms Sally Walsh, who are both related to one of the killers, Kevin Walsh, could not recall the events of the night before the Adare robbery in court.

Another, Patrick Harty, Toomevara, Co Tipperary, was jailed during the trial of the four men for 18 months for contempt of court when he failed to give evidence.

Following the Belfast Agreement referendum, the Government set up a three-man commission to review the cases of paramilitary prisoners held in Portlaoise Jail.

Qualifying prisoners under the agreement were those convicted of so-called "scheduled offences", i.e., the Offences Against the State Act in the Republic and the UK's Northern Ireland (Emergency Provisions) Act, 1996.

The Government insisted both before and after the passage of the Belfast Agreement referendum that the McCabe killers did not qualify, because it was not an IRA operation and they were jailed after the agreement came into effect.

Nearly 60 people were subsequently released, including the four IRA killers of Det Garda Séamus Quaid in 1980 and Garda Frank Hand, who was killed in Drumree, Co Meath, in 1984.

The commission, however, was not asked by the Government to consider the cases of the McCabe killers, a decision which prompted the men's lawyers to go to the High Court and, subsequently, to the Supreme Court.

Last January, the Supreme Court rejected an appeal of a High Court judgment brought on behalf of Michael O'Neill and John Quinn, who was released shortly afterwards.

In his judgment Mr Justice Peart said that the 1998 Criminal Justice (Release of Prisoners) Act gave the Minister for Justice "absolute discretion" in deciding which cases went to the commission.

Arguing that other prisoners convicted of equally or even more serious offences had been released, the men's lawyers said they were being discriminated against. Upholding the High Court decision, the then chief justice, Mr Justice Keane, said he was satisfied that the Government's decision not to include them was "a policy choice".

This, said Mr Justice Keane, was entirely within the discretion of the executive to make and could not be characterised as "capricious, arbitrary or irrational".

O'Neill and Quinn differed from other republican prisoners because they had not been tried and convicted by the time the Belfast Agreement was endorsed, he argued.

Lawyers for the two men made an attempt last April to challenge the judgment on the grounds that this latter statement was an error of fact, and that other prisoners sentenced after the signing of the agreement had been released.

This argument was rejected by the Supreme Court, which said that it did not come within the category of exceptional circumstances where a great breach of natural justice had been committed.

Though O'Neill and Quinn's efforts failed, two others, Pearse McAuley and Jeremiah Sheehy, are now seeking to use the European Convention on Human Rights to force their release.

The four still in prison would have been released as part of the October 2003 peace deal, which aborted at the last minute, though that fact only emerged months later to the acute discomfort of the Government.

When it did, the Taoiseach, Mr Ahern, said he would, reluctantly, release them if the IRA in all its manifestations, including multi-million criminal racketeering, went too. He, and others, have stuck to this line since.

The Minister for Justice, Equality and Law Reform, Mr McDowell, can release them under powers granted by Section 13 of the Offences Against the State Act, 1939, and the Criminal Justice Act, 1960.

Unless the omens from Belfast improve overnight, the Government will not have to sign the release papers for now, though that, perhaps, is the worst possible news.

An agreement promising "peace in our time" would give the Taoiseach desperately needed, and probably justified, cover showing that he was not ready to release the men "for nothing".