Judgment reserved in McCabe appeal

The Court of Criminal Appeal yesterday reserved judgment on an appeal by the Director of Public Prosecutions against the "unduly lenient" 14-year sentences imposed on two men for the manslaughter of Det Garda Jerry McCabe.

The Chief Justice, Mr Justice Keane, presiding over the three-judge court, said its decision would be given in the new law term next October.

Pearse McCauley (36), originally from Strabane, Co Tyrone, and Kevin Walsh (44), a father of two, Patrickswell, Co Limerick, were, along with Michael O'Neill and Jeremiah Sheehy, jailed by the non-jury Special Criminal Court in 1999 for the manslaughter of Garda McCabe during an abortive raid on a post office in Adare, Co Limerick, in June 1996.

During their trial the four men, who had all denied the murder of Garda McCabe, pleaded guilty to manslaughter. Their pleas were accepted by the DPP. They also admitted to the malicious wounding of Det Garda Ben O'Sullivan and to firearms offences.

McCauley and Walsh received sentences of 14 years, Sheehy got 12 years and O'Neill 11 years.

The DPP then brought appeals, under Section 2 of the Criminal Justice Act, 1993, arguing the sentences imposed on McCauley and Walsh were unduly lenient. There was no appeal against the sentences imposed on Sheehy and O'Neill.

The appeal court was told the "real" sentences being served were 15 years and three months in McCauley's case and 14 years and 11 months for Walsh, because of the length of time they had been in custody prior to conviction.

Presenting the appeal, Mr Edward Comyn SC, for the DPP, accepted the sentences imposed on McCauley and Walsh were substantial but he argued they did not reflect the seriousness of the offence.

He said the original charge was murder but it had become apparent during the trial that certain evidence was not available to the prosecution and pleas of manslaughter were accepted.

The offence involved serious criminal activity. This was a planned and organised act.

The prosecution had told the special court it was not possible to say any one of the men played a particular role in the incident and the court took the view all held equal responsibility. The firearms involved were never recovered and it was not possible to say who had fired the shots.

Mr Comyn argued the special court had not given sufficient weight to the previous convictions of Walsh and McCauley. McCauley had received a seven-year sentence on firearms charges and was freed in 1995, less than a year before the Adare shooting. In 1997, McCauley had produced a gun and forced a tourist to carry him in his car. O'Neill had no previous conviction, while Sheehy received a 10-year sentence on firearms charges.

Mr Justice McCracken remarked Walsh's previous conviction - for firearms offences and IRA membership - was in 1976, while Sheehy's dated back 10 years. He recalled a Garda inspector accepted McCauley had not fired the fatal shot.

Mr Comyn said the DPP had no evidence to show who fired what. When arrested in 1998, Walsh was found with a loaded pistol and there was an AK47 behind a couch where he was sitting.

Mr Anthony Sammon SC, for Walsh, argued there was nothing to justify intervention by the appeal court. The evidence to the court showed the prosecution could not ascribe any particular role to any of the four men in the offence.

Mr Sammon said he wished to raise an "unlawful and improper communication" forwarded to the DPP in this case (an apparent reference to a letter from the Garda Representative Association).

Mr Patrick MacEntee SC, for McCauley, said the court could not consider a sentence of some 15 years for his client was, in any meaningful sense, lenient. It was a large sentence for a man of McCauley's age and an appreciable part of his lifetime.

A necessary implication of the DPP's willingess to accept the plea to manslaughter was an acceptance that McCauley did not intend death or serious injury. McCauley had expressed regret for the death of Garda McCabe and remained repentant.