THE Special Criminal Court ruled yesterday that one of 16 prisoners whose release was ordered by the Minister for Justice, Mrs Owen, had been properly rearrested outside Portlaoise prison.
Mr Justice Barr, presiding, said the court ruled that "in the special circumstances" the rearrest procedure in the case of Mr Michael Cully did not require his real freedom.
The judge said Mr Cully was never really free when he was rearrested by a garda outside the main gate of Portlaoise prison on Thursday, but this was a technical "regularising of an error".
Mr Cully (46), of Ballyfarrell, Clonaslee, Co Laois, was charged alter his rearrest with having 16 improvised mortar bombs containing Semtex with intent to endanger life at his farm on June 20th last and with unlawful possession of the mortar bombs.
Mr Cully was one of 16 prisoners whose release was ordered by Mrs Owen and who was then rearrested and charged with offences identical to their original charges.
The releases were ordered after it became clear that Judge Dominic Lynch was ineligible to sit at the Special Criminal Court.
Mr Cully's counsel, Mr Erwan Mill Arden SC, told the court yesterday the position regarding his custody was "very difficult". He said Mr Cully had not been validly arrested outside Portlaoise prison on Thursday afternoon. The "manner and the place" in which he was purportedly arrested showed that his client was not at liberty.
"It was a continuation of custody. He was released within the prison. He was not at liberty, he was not free," he said.
Mr Justice Barr said the problem arose because one of the members of the court was not eligible to sit and the matter was unknown to the judge.
He said in the State's view it was felt necessary to rearrest a number of defendants. The judge said it was "a formality to regularise a situation which had inadvertently arisen".
He said it was clearly never intended that the defendant should be allowed "to walk free the length and breadth of the land".
The judge said the release was simply for the purposes of rearrest.
He told Mr Mill Arden that his client was never really free and was never really released from the confines of the prison.
"The release may just as well have taken place in a prison cell in practical terms," he said, and he asked if there was a need for any freedom in the technical sense of regularising an error.
Mr Cully was brought before the court yesterday because, when he appeared there on Thursday, he had no legal representation.
Det Sgt Patrick Sears of the Special Detective Unit said he had a short conversation at 11 p.m. on Wednesday night with his superior officer, Det Insp Hogan, and he became aware that there was some problem with the detention of a large number of people at Portlaoise prison.
At 10.45 a.m. on Thursday he was asked to go to Portlaoise. He arrested Mr Cully at 12.50 p.m. under common law for the felony of unlawful possession of explosives with intent to endanger life in Co Laois on June 20th.
Det Sgt Sears said he knew Mr Cully and had been at Clonaslee on June 20th when explosives were found.
Cross-examined by Mr Mill Arden, he said when Mr Cully walked through the prison door he met him and they walked through the first gate. The gate was open and he identified himself to Mr Cully and placed his arm around his shoulder and arrested him.
Mr Justice Barr remanded Mr Cully in custody until November: 20th.