The killers of Detective Garda Jerry McCabe are not entitled to early release under the terms of the Belfast Agreement, the Government argued before the High Court today.
The Minister for Justice has "wide discretion" in deciding what prisoners may or may not be specified for early release and the Government was entitled to exercise this discretion in relation to Det McCabe's killers, Mr Donal O'Donnell SC argued.
Mr O'Donnell said that the Belfast Agreement is an international political agreement between the British and Irish governments and neither Pearse McAuley nor Jeremiah Sheehy were parties to that Agreement.
Detective Garda Jerry McCabe, who was shot dead in Adare, Co Limerick in 1996
They therefore had no entitlement to seek performance of any its provisions nor could they complain about alleged non-performance of it.
They were not entitled to release either under the Agreement nor the Criminal Justice (Release of Prisoners) Act 1998, Mr O'Donnell continued.
McAuley and Sheehy claim that political and policy considerations were denying them early release. But Mr O'Donnell said the entire context of the Agreement and the criteria for release of prisoners was political.
If policy and political considerations had not applied, the 57 prisoners released to date following the ratification of the Agreement would not have been freed.
Mr O'Donnell was making submissions in the continuing hearing before Mr Justice Daniel Herbert of the challenge by McAuley and Sheehy to their continuing imprisonment.
They claim the refusal of early release breaches their rights under the Constitution, the Belfast Agreement and the European Convention on Human Rights, and unjustly discriminates against them.
They say the failure to release them involves the application of a "consistent government policy" that the prisoner release scheme will not apply to any person involved in the incident in Co Limerick in 1996 in which Det McCabe was killed and his colleague, Det Garda Ben O'Sullivan, was injured.
In submissions on their behalf earlier today, Mr Patrick Dillon-Malone BL argued that the two men could not be excluded from the early release scheme except by legislation to that effect.
The absence of such legislation meant failure to specify the men as qualifying prisoners was unlawful and breached their rights under the European Convention on Human Rights, he said.
McAuley, originally from Strabane, Co Tyrone, and Sheehy, from Limerick, were jailed for 14 years and 12 years respectively in early 1999 after pleading guilty at the non-jury Special Criminal Court to the manslaughter of Det Garda McCabe during an attempted robbery outside Adare post office, Co Limerick in June 1996.
Kevin Walsh (45) of Patrickswell, Co Limerick also got a 14 year-year jail term in connection with the Adare incident while Michael O'Neill was jailed for 11 years.
John Quinn pleaded guilty to conspiring with other persons to commit robbery and was jailed for six years.
In 2004, the Supreme Court rejected a bid by Michael O'Neill and John Quinn to secure their release under the provisions of the Belfast Agreement.
The Supreme Court said the government had decided as a matter of policy that persons convicted in connection with Det McCabe's killing would not be freed under the provisions of the Agreement and the government was entitled to make that decision.
