Two jailed in McCabe case not entitled to early release

Two men jailed in connection with a robbery at Adare in Co Limerick in 1996 in which Det Garda Jerry McCabe was killed have lost their High Court application for early release under the Belfast Agreement.

Mr Justice Peart found that the Minister for Justice had wide discretion in relation to the release of prisoners. While he noted that the State had not disputed that the two men fell within the category of prisoners eligible for release under the agreement, he held that the Minister had no obligation to consider their applications or specify them as such.

Documents released to the men's lawyers also disclosed that the Government had made a "political judgment" that it would not include this case in the final arrangements for prisoner releases under the agreement.

Michael O'Neill, an unemployed general operative detained at Castlerea Prison, is serving a total of 11 years for the manslaughter of Det Garda McCabe, the malicious wounding of Det Garda Ben O'Sullivan and possession of firearms for the purpose of a robbery at Adare. John Quinn, also detained at Castlerea, is serving a six-year sentence for conspiracy to commit a robbery at Adare in June 1996.

Both argued that they were entitled to be freed under the Belfast Agreement of April 1998 which provided for a two-year period of release for qualifying prisoners expiring in July 2000. They argued that persons convicted of similar offences had been freed and that they were being discriminated against.

In a 40-page reserved judgment, Mr Justice Peart found that no individual rights were conferred on them by the Belfast Agreement. When exercising his powers of release, the Minister for Justice was exercising an executive function of a discretionary nature, and the courts could intervene only if those powers had been exercised in a capricious, arbitrary or unjust way, he said.

Before he could consider whether the Minister had acted in that way, the judge said, he must be satisfied that the Criminal Justice (Release of Prisoners) Act, 1998, which set up the Release of Prisoners Commission (RPC) to advise the Minister regarding the release of persons deemed to be qualifying prisoners, obliged the Minister to consider a person for release if they appeared to meet the necessary criteria.

The Minister had an absolute discretion as to when he might seek the advice of the RPC as to whether certain persons specified as qualifying prisoners should be released.

It must be presumed that the legislature did not intend to fetter that wide discretion which the Minister already enjoyed regarding the release of prisoners under existing legislation, he said.

When there was no obligation on the Minister to consider the men's application, or to specify them as qualifying prisoners, or to seek the advice of the Commission, the Minister could not be said to have acted capriciously, arbitrarily or unjustly.

If he had any doubt in the matter, the judge added, he was entitled to have regard to a Dáil statement by the minister for justice, Mr John O'Donoghue, in April 1998 where the minister said the government had made clear in its contacts with all groups its view that persons who might be convicted in connection with the killing of Det Garda McCabe would not come within the ambit of the Belfast Agreement.