State loses case over freeing of three dissident republicans

A four/three majority Supreme Court has dismissed the State's appeal against orders freeing three dissident republicans transferred here after being jailed in England 14 years ago for trying to buy weapons and explosives for the Real IRA.

The three Co Louth men were transferred to the Midlands Prison in 2006 having been sentenced in England in 2002 to 30 years imprisonment, later reduced to 28.

Fintan O'Farrell and Declan Rafferty, both from Carlingford, Co Louth, and Michael McDonald, from Dundalk, whom the State sought to keep in jail until October 2016, were freed by the High Court in September 2014 after it upheld challenges to the legality of their detention.

In freeing the men, Mr Justice Gerard Hogan noted the English regime provides for release of a prisoner on licence after they have served two-thirds of their sentences or, in the cases of persons jailed after 2005, one half of their sentences. The Irish system does not allow for release on licence but provides for 25 per cent remission.

Had the three remained in England, they would have been entitled to release on licence after serving some 18 years and eight months, he said. Because the 2006 warrants under which they were detained here recorded their sentences as 28 years, those were defective, he held.

No power

He ordered they be released “forthwith” after finding the court had no power to vary the warrants to correct the defect.

Yesterday a four-three majority Supreme Court dismissed the State’s appeal over their release. The majority court comprised Judges William McKechnie, John MacMenamin, Mary Laffoy and Iseult O’Malley. Chief Justice Susan Denham and Judges Frank Clarke and Donal O’Donnell, were in the minority.

While all seven agreed the detention warrants were defective and the sentences in those warrants cannot be retrospectively adapted under section 7 of the 1995 Transfer of Sentenced Persons Act, they disagreed whether the sentences could be varied under section 9 of the 1995 Act.

In his judgment dismissing the appeal, Mr Justice MacMenamin said this was “a troubling case and many would say, having committed these very serious crimes”, the three should be made face the full consequences of their actions for the full period of the sentence imposed.

However, the process whereby they were placed in detention in Ireland was “fundamentally defective”.