FIVE prisoners involved in the controversy over the composition of the Special Criminal Court were given leave by the High Court yesterday to seek their release.
Permission was given to Mr Anthony Duncan, Mr Nessan Quinlivan, Mr John Conaty, Mr Joseph Kavanagh and Mr Michael Hegarty to seek an inquiry next Monday under Article 40 of the Constitution into the legality of their detention.
Mr Anthony Duncan, who is in Portlaoise prison, also got an injunction yesterday stopping the Special Criminal Court going ahead with his trial today.
Applications by other prisoners are expected to come before the High Court later this week.
Mr Michael Hanahoe, solicitor, for Mr Duncan, in an affidavit read by Mr Felix McEnroy his counsel, said his client was on remand in prison pursuant to a committal warrant issued by the Special Criminal Court on Thursday last. That warrant had remanded him for trial today.
It appeared Mr Duncan was woken in his cell about midnight on November 6th and informed he was going to be released from custody. About 12.30 a.m. he and other prisoners were brought to the first gate of Portlaoise prison.
It appeared Mr Duncan was outside the first prison gate when he was arrested by a garda. When it appeared, he was between the first and second of the three prison gates he was surrounded by gardai who did not permit him to proceed.
At the time of the purported address, it appeared, Mr Duncan was not charged or provided with any charge sheet. He was brought through the other gates and placed in a garda prison van.
In the Special Criminal Court (SCC) on Thursday, counsel for the State indicated that prior to the proceedings there were irregularities in relation to the men in court which had come to the notice of the Attorney General. Counsel then said he would be seeking to have any criminal charges or orders of the SCC quashed before the High Court.
A detective sergeant had agreed in the SCC that between 30 and 40 gardai were between the first and second gate of the prison at the time of Mr Duncan's arrest. The detective confirmed that gardai were positioned in front of the first gate and subsequent to a prison officer calling out the name Anthony Duncan, Mr Duncan was put through the first gate into the presence of gardai.
Counsel for the DPP had indicated to the SCC that the charge of membership of an unlawful organisation would be the subject of High Court proceedings and that a new and identical charge was now the basis upon which the SCC had jurisdiction over Mr Duncan. The SCC remanded Mr Duncan in custody until today.
Mr Hanahoe said a committal warrant dated October 8th last remanding Mr Duncan in custody was unlawful because at the time the SCC made an order remanding him, Judge Dominic Lynch was not a member of it in accordance with section 39 of the Offences Against the State Act.
The purported arrest of Mr Duncan on Thursday last was void and of no effect. At no time was it the intention of the State authorities to release Mr Duncan. The purported release and subsequent arrest constituted a conscious and deliberate violation of his constitutional right to liberty.
Mr Hanahoe added that subsequent to the Government's decision to remove Judge Lynch as a SCC member, notice of the fact was published in Iris Oifigiuil on August 9th. Further notices to this effect were published by the Government. The Government had actual or, in the alternative, constructive notice of the fact that Judge Lynch continued to sit as a SCC member, although he was no longer properly a member of it.
The servants or agents of the State must have had actual knowledge prior to November 6th last and apparently prior to October 8th of the irregularity in relation to the continued participation of Judge Lynch as a member of the SCC subsequent to the Government decision to remove him, at his request, from membership.
Mr Hanahoe said depositions which were taken in the original proceedings were now no longer admissible pursuant to Part 2 of the Criminal Procedure Act because it appeared those proceedings were not to be prosecuted in the SCC but were to be the subject of an application by the Justice Minister to quash the proceedings in the High Court.
The decision of the DPP to charge Mr Duncan directly before the SCC rather than charging him before the District Court, as he had done previously, had prejudiced Mr Duncan because sworn depositions previously available as evidence were now no longer available to him. This change in policy by the DPP constituted an unfair procedure in relation to Mr Duncan's prosecution.
Later, Dr Michael Forde SC, was granted leave for Mr Quinlivan, Mr Conaty, Mr Kavanagh and Mr Hegarty to seek inquiries on Monday next into their detention.