A dissident republican leader sentenced to 20 years imprisonment for directing terrorism has moved to appeal a High Court judgment refusing him early release.
Michael McKevitt (66), of Beech Park, Blackrock, Co Louth was jailed by the non-jury Special Criminal Court for 20 years in 2003, backdated to 2001, for directing terrorism and for membership of an illegal organisation styling itself as the Real IRA.
With the normal one-quarter remission generally afforded to prisoners, McKevitt is due for release from Portlaoise Prison in July 2016.
McKevitt had applied for a further 8 per cent off his sentence arguing that his participation in structured prison activities, such as art, drama, French, home economics and yoga classes, meant he was entitled to one-third remission rather than the one-quarter generally afforded to prisoners.
The High Court ruled last year that the Minister for Justice was entitled to refuse McKevitt’s application for one-third remission and he sought to appeal that decision on Wednesday in the Court of Appeal.
Counsel for McKevitt, Michael O’Higgins SC, submitted that two High Court judgments had formed an absolutist view – that if you do the work in prison you qualify for one-third remission – but four subsequent judgments had held that view to be inappropriate.
It had been “two-nil” in favour of the away team, Mr O’Higgins said, but it now stood at “4-2 and we’re here for the second leg so to speak”.
Mr O’Higgins said the appeal was a matter of interpreation of the rules.
Because the scheme was constructed the way it was constructed, he said, the Minister was left with an extremely narrow ambit of consideration.
Mr O’Higgins said the meaning was very plain. The Minister’s function was to decide whether the course or courses were authorised structured activities and whether good conduct was shown in doing them.
If it was established that a prisoner had shown good conduct and the Minister was satisfied that he was less likely to reoffend as a result of engaging in authorised structured activities then any refusal by the Minister would “not only be amenable to Judicial Review but would be reviewed,” Mr O’Higgins submitted.
When asked what circumstances could cause the Minister to refuse an application for one-third remission, Mr O’Higgins said an intention not to reintegrate into society or an intention to reoffend.
That was all the Minister could consider prior to August 14th last when an “a lá carte” list of criteria was introduced for the Minister to consider in making her decision, Mr O’Higgins said.
It was indicative, he said, that the Oireachtas had decided to amend the scheme and it was a matter which has yet to be tested in a court.
The idea that anybody involved in removing a persons liberty has the opportunity to set out the criteria upon which they can make their decision, was harmful to a person’s Constitutional rights, he said. “That simply could not be,” Mr O’Higgins said.
Counsel for the Minister for Justice, Diarmaid McGuinness SC, said there was a “major error” in McKevitt’s assumption which was “regrettably reflected in two erroneous” High Court decisions.
It was an error, Mr McGuinness said, to hold that the Minister was “constrained” in only having to consider whether the prisoner had successfully completed authorised structured activities.
Mr McGuinness said McKevitt had positioned himself as spokesman for the republican prisoners in Portlaoise, he had continued to associate with republican prisoners and had described himself as a “political hostage”.
It was not as if McKevitt had come before the Minister as a “man without qualities”.
In order for the Minister to be satisfied of a prisoner’s qualification for enhanced remission, Mr McGuinness said nothing of relevance could be excluded.
On Mr O’Higgins’ interpretation of the rules, Mr McGuinness said the Minister could only enquire if the prisoner had completed a course.
Reserving judgment, President of the Court of Appeal Mr Justice Seán Ryan, who sat with Ms Justice Mary Irvine and Mr Justice John Edwards, said the court would give its decision as soon as possible.