A senior counsel yesterday unexpectedly withdrew from the first case concerning a prisoner involved in the controversy over the composition of the Special Criminal Court as the case was due to begin.
Dr Michael Forde SC was one of two senior counsel representing Mr Michael Heggarty. The case was fixed for hearing yesterday before a three-judge divisional court of the High Court, but the development led to an adjournment until tomorrow.
A number of prisoners were freed some weeks ago when it was discovered one of the sitting judges, Judge Dominic Lynch, was no longer a member of the Special Criminal Court.
The prisoners were subsequently rearrested, but they are now seeking their release, claiming their detention is illegal.
Mr Heggarty (43), a native of Co Clare, with an address at Knockmore Grove, Tallaght, Co Dublin, is charged with unlawful possession of an explosive substance in Co Monaghan in November 1995.
When the case was called yesterday Dr Forde, one of Mr Heggarty's legal team, said he was withdrawing from it.
He said he found himself in an impossible position in the case. He pointed out that last Thursday, during the course of an application in the case, Mr Justice Kelly had made certain remarks.
Counsel said he did not accept those remarks. However, his duty at all times was to his client. It would be a dereliction of that duty for him (counsel) to use the proceedings as a forum for what was said then.
Regrettably, in those circumstances and in the interests of his client, he had no choice but to withdraw from the case.
Last Thursday Mr Justice Kelly made criticisms of Dr Forde relating to the manner in which information and undertakings to the court had apparently been regarded lightly.
He also reprimanded Dr Forde for having "button-holed" him in the corridors the previous day, telling him he had approached Mr Justice Smyth and had organised the matter for hearing last Wednesday.
"I resent being button-holed by counsel in the corridor," Mr Justice Kelly said. "I particularly resent that you would come and speak to me about a matter before the court in the absence of other parties."
Dr Forde said on Thursday he had done so as a matter of courtesy after the judge had indicated any applications in the proceedings ought to be made to him.
Following Dr Forde's withdrawal, Mr Paul Callan SC, also, for Mr Heggarty, said that in the light of what had happened, he and Mr Turlough O'Donnell, also representing Mr Heggarty, would not be in a position to proceed with the case at the moment.
The case was coming to court on the basis of two senior counsel, Dr Forde and Mr Callan. Mr Callan said that if there were not two senior counsel in the case, he would have to consider whether he could remain in it. He was seeking an adjournment to consider the availability of another senior counsel.
His client now wished that his case should take its place with the other cases.
Mr Justice Geoghegan, who is sitting with Mr Justice Kelly and Mr Justice Smyth, said Mr Callan was briefed and brought in on December 16th. He (Mr Justice Geoghegan) would have assumed, the whole team had been preparing the case since then.
Mr Callan said it had been intended he would deal predominantly with legal matters. He was not prepared for issues which Dr Forde was going to deal with.
The adjournment application was opposed by Mr Edward Comyn SC, for the State, and Mr Peter Charleton SC, for the DPP.
Mr Justice Geoghegan said the court was disposed, in Mr Callan's personal interest, to adjourn the case until tomorrow. Before the court made the decision, he sought an undertaking that Mrs Callan would remain in the case, as he seemed to indicate almost as an aside that if there was a short adjournment he might withdraw.
Mr Callan said he was prepared to remain in the case.
The judge made an order for Mr Heggarty to be brought before the court tomorrow.