THE High Court has set aside a subpoena requiring the Attorney General to come to court to be cross examined in relation to a claim by five high security prisoners that they are being detained illegally.
However, Mr Justice Kelly said yesterday he would reserve the right to ask Mr Dermot Gleeson SC to attend if, in the course of the hearing, it became apparent that evidence from him was "required, which was relevant and not covered by legal privilege.
The judge was giving his decision in an inquiry by the court into the legality of the detentions in Portlaoise Prison.
The five men include Brixton prisoner escaper Mr Nessan Quinlivan (31), who is wanted by the British police. He is facing charges in this jurisdiction of falsely imprisoning Mr Michael Lyons, at Greenhill Road, Garryowen, Limerick, last August.
The other four are: Mr Anthony Duncan (26), unemployed, Kippure Park, Finglas, Dublin, charged with IRA membership on April 12th, 1996; Mr John Conaty (35), Balbutcher Park, Ballymun, charged with having improvised mortar bombs at Ballyfarrell, Co Laois, last June 20th; Mr Michael O'Neill, Patrickswell, Co Limerick, who faces charges arising from the murder of Det Garda Jerry McCabe in Adare last June; and Mr Joseph Kavanagh (37), Crumlin, Dublin, who faces charges connected with the kidnapping of the then National Irish Bank chief executive, Mr Jim Lacey, on November 2nd, 1993.
The five men were released when it was discovered they appeared before a Special Criminal Court panel last October 15th which included Judge Dominic Lynch, who was not at the time a member of that court.
Judge Lynch, having asked to be replaced, was removed last August but never informed.
Mr Tim Dalton, Secretary of the Department of Justice, was cross examined yesterday by Mr Michael Forde SC, who appeared for four of the five men.
Mr Dalton said he had been concerned that proper releases would be effected and was informed that gardai were in a position to take whatever action was necessary. But he had no discussion about the method of arrest.
Mr Dalton said he had told the Minister for Justice, Mrs Owen, that the Attorney General's advice was that they should be released. His understanding was the Garda would rearrest the men.
The hearing continues today.