A Dundalk man who was being questioned by gardai investigating the Omagh bombing was released by the High Court last night in the first challenge to the security legislation enacted in the wake of the bombing.
Almost immediately a Government spokesman said the Attorney General was considering appealing the decision to the Supreme Court.
Mr Deaglan Lavery (23), of Sliabh Foy Park, had been due for release from custody at 7 a.m. today. He had been arrested at his Dundalk home on Wednesday morning on suspicion of membership of an unlawful organisation under the provisions of the Offences Against the State (Amendment) Act 1998.
Mr Lavery took an application for habeas corpus under Article 40 of the Constitution, alleging a breach of his right to appropriate access to a solicitor by not allowing his solicitor to read the notes of his interviews with gardai.
Mrs Justice Catherine McGuinness held that up to the enactment of the amending legislation no such right existed. However, the Offences Against the State (Amendment) Act 1998 created an exception because now suspects were obliged by law to volunteer information.
Mrs Justice McGuinness said it appeared to her that a person arrested under the legislation was in a "special difficulty" as opposed to persons arrested under other Acts, such as the 1984 Criminal Justice Act, in trying to know what information must be volunteered. She ruled, therefore, that the notes of the interviews should be available to the solicitor during consultations with his client. However, he would not be allowed to make copies of the notes or remove them from the station.
In light of the fact that gardai felt strongly about the issue, she was directing Mr Lavery's release. Det Supt Noel White told the judge Mr Lavery had made no admissions to any crimes and that his alibi, which was being investigated by gardai, was checking out. Two other men were also being questioned by gardai, he said.
Mr Lavery's counsel, Mr Patrick Gageby SC, said Mr Lavery was seeking release because his solicitor, Mr James MacGuill, had not been allowed to see the notes of the Garda interviews with him.
Without having sight of the notes of the interviews with his client, Mr MacGuill could not properly advise his client whether he should make a further statement to comply with his obligations to volunteer information, Mr Gageby said.
Mr Feichin McDonagh, for the Attorney General, opposed the application.
He said no charges had been made against Mr Lavery and the Garda was under no obligation to furnish copies of the interview notes to his solicitor.
Det Sup White said gardai had no objection to Mr Lavery reading the notes and conveying information to Mr MacGuill. He stressed he was not suggesting any possible impropriety against the solicitor.