Court challenge by prisoner on lawfulness of detention opens

THE first case involving prisoners challenging the lawfulness of their detention following the controversy over the composition of the Special Criminal Court began before a three judge Divisional Court of the High Court yesterday.

The court heard evidence from Mr Michael Heggarty of how he was taken from his cell in Limerick Prison soon after midnight and brought to the prison gates where he was handed over to the gardai. "I was never a free person," he claimed.

Mr Heggarty (43), a former member of the Republican Sinn Fein ardchomhairle, was freed last November on the orders of the Minister for Justice, Mrs Owen.

Mr Heggarty has brought his constitutional action against the Governor of Limerick Prison. The Minister for Justice, the Garda Commissioner, the DPP and the State have been made notice parties to the claim.

A native of Co Clare, with an address at Knockmore Grove, Tallaght, Co Dublin, Mr Heggarty was charged with unlawful possession of an explosive substance with intent to endanger life at Longfield, Etra, Carrickmacross, Co Monaghan, on November 10th, 1995.

He appeared before the Special Criminal Court the following day and was remanded in custody. He was detained in Limerick Prison.

He claimed the Chief State Solicitor and the Minister for Justice through their servants or agents knew Judge Lynch was no longer a member of the Special Criminal Court on October 15th last. Mr Heggarty had been brought before the court as a remand prisoner. The court ordered his continued detention.

He alleged that on November 6th last the Minister, the Garda Commissioner, the DPP and the State conspired to infringe his constitutional right to liberty.

He alleged the DPP and/or Deputy Garda Commissioner Conroy or their servants provided the arrangements would be made that if he was released by order of the Minister he would never obtain liberty.

Yesterday, Mr Heggarty in his statement of claim, said he was never properly charged before another Special Criminal Court sitting on November 7th last. That court remanded him in custody. Mr Heggarty claims that remand is invalid and that he is in unlawful custody.

Mr Heggarty claimed the Minister's servants had full authority to direct his release once they knew he was in unlawful detention but, unlawfully, they chose not to so direct.

Mr Paul Callan SC, for Mr Heggarty, instructed by Oliver Kelly, solicitors, Belfast, said they would be asking to allow evidence with a view to showing there was no presumption of liberty.

The President of the court, Mr Justice Geoghegan, who is sittings with Mr Justice Kelly and Mr Justice Smyth, said the relevance of that question was the important question of law as to whether the initial release was necessary at all.

Mr Heggarty, in evidence, said he was a native of Clarecastle, Co Clare, was married but separated, and worked in scaffolding.

He said that in the early hours of November 7th he was told "30, 35, or 40" minutes before he was released, that he was going to be released.

An officer came to his cell and "told me he had got word from the Government that I was being detained illegally and I was going to be released."

In the reception area he spoke by telephone with his solicitor's mother and left a message.

He asked that his watch and any money due to him be handed over but was told nothing could be bone about that.

He was taken out through "two big main gates" and towards smaller gates that led on to the public pavement. He was handcuffed to one officer and there were two or three others.

"I could see I wasn't being released at that stage," he told the court.

Outside the gate there was a semi circle of gardai. There was no passageway for him through the half circle. Just at the gate the handcuffs were taken off. "I said I wanted my money and my watch before I was going anywhere," Mr Heggarty said. "Clifford said to get me out, to put me out."

Mr Heggarty said he was pushed by prison officers on to the street. "At that stage Del Kearns said he was arresting me and another detective put handcuffs on me."

Mr Heggarty said a prison officer had him held by one wrist and did not let go until the garda had handcuffed the other wrist. "At no stage was I a free person."

"I didn't walk out of my own volition." He had been trying to stay on prison property until he got "what was due to me".

Mr Barry Donoghue, a legal assistant in the DPP's office, in reply to questions from Mr Turlough O'Donnell SC, for the applicant, said that at 4.30 p.m. on November 6th last he received a telephone call from the Chief State Solicitor's Officer that there appeared to be a difficulty about Judge Dominic Lynch sitting as a judge of the Special Criminal Court.

Judge Kevin Haugh had been appointed in substitution for Judge Lynch. He came to the conclusion that if the judge was not properly a member of the Special Criminal Court, orders made by that court may not have been valid.

Mr Donoghue said he brought the situation to the DPP's attention and the matter was discussed for the next three hours with the Department of Justice, Chief State Solicitor's office, gardai and the Attorney General. He agreed with Mr O'Donnell that the validity of the orders was discussed. The DPP came to the view that continuing custody of prisoners on remand was a matter for the Minister and through the Minister, the prison governors.

Mr Donoghue also agreed it was decided it was inappropriate for the DPP's office to give formal advice to the Department of Justice and that advice was to be given by the Attorney General.

Mr Donoghue added that a decision was made that if prisoners were released they would be arrested and brought as soon as possible before the Special Criminal Court. He conveyed this to the Deputy Garda Commissioner and said his concern was that if prisoners were put to liberty that they would be arrested.

The hearing continues today.