Monday 22 January 2018

Legal teams to ask High Court for client release following Niall Farrell decision

Mr Justice Gerard Hogan
Mr Justice Gerard Hogan

Ray Managh

Legal teams are lining up this week-end to ask the High Court to release their clients from jail following Mr Justice Gerard Hogan’s decision to free “self acknowledged IRA prisoner” Niall Farrell.

Judge Hogan this week ordered the immediate release from Portlaoise Prison of Farrell on the grounds he had not been given proper consideration by the prison authorities for a one third remission of sentence.

An application on behalf of alleged IRA leader Michael McKevitt was brought before the High Court yesterday (Friday) by top criminal lawyer Michael O’Higgins SC but the freedom application was put back until next Tuesday.  The application was not opened fully in court.

Mr O’Higgins told Mr Justice Garrett Sheehan that on the reading of his colleague Judge Hogan’s judgment Mr McKevitt ought to have been released on July 26 last.

McKevitt was not in court for today’s brief application and Mr O’Higgins said there would not be any need to produce him in court next Tuesday as the arguments would be confined to legal issues.

John Aylmer SC made an application for the release of another Portlaoise prisoner Joe Kirwan who is serving a two- year confinement.

Mr Aylmer, who appeared with Karl Monahan, told the court Mr Kirwan had been sentenced in December 2013 to six years, with four years suspended, on conviction of possession of explosives in suspicious circumstances. The application will also be heard next Tuesday.

Judge Hogan, in a reserved judgment, stated that Niall Farrell’s successful application was based on an entitlement to enhanced remission of one third of his sentence where under Rule 59 (2) of the Prison Rules he had had been of good conduct and had engaged in authorised structure activities to prepare him for release and reintegration into society and lead to his being less likely to re-offend.

He had been sentenced by the Special Criminal Court in December 2011 to five years for membership of an illegal organisation and it was only fair to say he had been of exemplary conduct since.

The judge said Farrell  had spent the entirety of his sentence on the E2 landing of Portlaoise Prison on which all of the prisoners were self acknowledged members of an illegal organisation styling itself as the “Irish Republican Army.”

He said that of the 14 prisoners on the landing, six were rostered to work on any given day on food management and cleaning.  Mr Farrell had completed a series of courses while in prison, including a semester on computer graphics and courses on Art and Design, leatherwork and first aid.  He had honoured three temporary releases.

The Minister for Justice had opposed Farrell’s release on the grounds he had not engaged with the Probation Services with a view to reducing the risk of re-offending and had chosen to associate with other members of an illegal organisation in the E-block of Portlaoise Prison.

Counsel for the Minister had told Judge Hogan that these prisoners considered themselves to be “political prisoners” and that they had not been properly convicted of any criminal offences.  The Minister considered that his election to remain with these prisoners was a highly relevant factor in the consideration of his likelihood of re-offending.

Judge Hogan said gardai had advised the Minister that, having regard to Farrell’s strong links with a particular illegal organisation ,they had no reason to believe he would not re-engage in subversive activities and had counselled against enhanced remission.

Judge Hogan said the scheme of the Prison Rules ordained that prisoners should generally engage in regular authorised structured activity for 25 hours each week.  It followed that where a prisoner participated successfully in such activities the Minister would be obliged to conclude he was less likely to re-offend, triggering the enhanced remission provisions.

Judge Hogan said it was not disputed that Mr Farrell participated successfully in authorised structured activities and this very fact must by definition have rendered him less likely to re-offend.

“In truth, once Mr Farrell successfully participated in the authorised structured activities, he was entitled to such enhanced remission,” Judge Hogan stated.  “On the basis he ought to have been released on 1st April 2014 it follows he is currently in junlawful custody and I must direct his immediate release.”

A succession of applications for release based on enhanced remission is expected to continue appearing before the High Court for some time.

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