The Supreme Court yesterday rejected an appeal by the Brixton prison escaper Nessan Quinlivan against a High Court finding that his present detention is lawful. The five-judge court, presided over by the Chief Justice, Mr Justice Hamilton, unanimously found against Quinlivan and ruled that he is in lawful custody.
This was a test case for other prisoners arising from the delisting of Judge Dominic Lynch from the Special Criminal Court. After yesterday's decision Dr Michael Forde SC, for Quinlivan, said appeals on similar grounds being taken by Mr Anthony Duncan, Mr Michael O'Neill and Mr John Conaty would not proceed.
Mr Duncan (26), from Kippure Park, Finglas, Dublin, is charged with IRA membership on June 12th last year; Mr O'Neill (45), of Lisheen Park, Patrickswell, Co Limerick, with possession of a firearm with intent to endanger life at Adare, Co Limerick, on June 7th last year; and Mr Conaty (35), of Balbutcher Park, Ballymun in connection with the discovery of a major bomb factory in Co Laois on June 20th, 1996.
Quinlivan had contended that his present detention on a charge of false imprisonment was unlawful because of the circumstances in which he had been remanded in custody by an improperly-constituted Special Criminal Court, released, immediately arrested, and then brought before a properly-constituted Special Criminal Court.
The High Court found against Quinlivan and he appealed to the Supreme Court, which upheld the High Court decision.
Delivering the unanimous judgment, Mr Justice Barron said there was nothing in the circumstances of Quinlivan's release and immediate arrest at Portlaoise Prison in the early hours of November 7th last year which could in any way invalidate his arrest by the Garda.
He said Quinlivan was in apparent legal custody until it was discovered that, owing to administrative error, a warrant under which he was detained was invalid. In such circumstances there was a positive duty upon the authorities to remedy the situation.
That positive duty was performed by the prompt release of Quinlivan followed by his immediate arrest by gardai, so that he might be brought before a properly-constituted Special Criminal Court for that court to make such orders as it considered proper, the judge said.
On the submission that there was no release because Quinlivan was not brought to the public street before he was rearrested, the judge said the law "would surely be an ass" if it denied the right of the Garda to arrest a person on private property where the person arrested had no chance of escaping arrest, in favour of permitting his arrest on the public street where he would have the same lack of chance of escaping.
There was no concerted plan on the part of the authorities constituting a conscious and deliberate violation of Quinlivan's constitutional rights, he said. He concluded that Quinlivan was lawfully brought before the Special Criminal Court on November 7th, 1996, and was in lawful custody.
Quinlivan (31), of Knockalisheen Avenue, Ballynanty Beg, Limerick, is in custody awaiting trial on Wednesday next on a charge of falsely imprisoning Mr Michael Lyons at Garryowen, Limerick city, on August 25th last year. He is also wanted in Britain on foot of extradition warrants alleging conspiracy to murder, conspiracy to cause explosions, escaping from prison and wounding with intent.
Meanwhile, in separate proceedings in the High Court, Quinlivan is challenging the legality of his detention on the false imprisonment charge in the light of last week's finding by the Special Criminal Court that the offence of false imprisonment under common law no longer exists.
Submissions on the matter concluded yesterday, and Mrs Justice McGuinness reserved her decision until Monday.