The High Court has refused to direct the release of the Brixton Prison escaper, Nessan Quinlivan, and ruled that his trial on a charge of false imprisonment can proceed tomorrow.
But Mrs Justice McGuinness endorsed the Special Criminal Court's criticism of those who drafted and enacted the Non-Fatal Offences Against the Person Act 1997, which abolished the offence of false imprisonment under common law.
In a decision last month, the Special Criminal Court said it was "surprising and most unfortunate" that those responsible for drafting and enacting the 1997 Act should have made "such an obvious error" when they abolished the offence of false imprisonment under common law without saving prosecutions on that charge which were committed prior to the Act coming into force on August 19th last.
Mrs Justice McGuinness yesterday said it would clearly have been possible for the Oireachtas to insert such a saver into the 1997 Act and she agreed with the criticism of the failure to do so.
Quinlivan had sought a court order directing his release from Portlaoise Prison on the grounds that his detention on a charge of false imprisonment was unlawful.
The rejection of his application is expected to have implications for other persons facing proceedings relating to false imprisonment, kidnapping and various assault offences committed prior to August last.
Following yesterday's decision, the trial of Quinlivan (31), of Knockalisheen Avenue, Ballynanty Beg, Limerick, on a charge of falsely imprisoning Mr Michael Lyons at Garryowen, Limerick city, on August 25th last year, is expected to proceed tomorrow.
He is also wanted in Britain on foot of extradition warrants alleging conspiracy to murder, conspiracy to cause explosions, escaping from prison and wounding with intent.
Last week the High Court heard an Article 40 inquiry into the legality of Quinlivan's continued detention on the false imprisonment charge. Mrs Justice McGuinness reserved judgment until yesterday.
Delivering her judgment, which she said she would expand on at a later date, the judge refused the application by Quinlivan for his release and directed that his trial should proceed.
She said the issue in the hearing was whether Section 28 of the Non-Fatal Offences Against the Person Act was intended to cover all pending prosecutions of false imprisonment under common law and those in mid-trial.
She said it would be unconstitutional for the court to hold that it was the intention of the Oireachtas to interfere with cases pending or before the courts and she was refusing Quinlivan's application.