The four Provisional IRA members who shot dead Det Garda Jerry McCabe could be free by this autumn if, as expected, they launch a legal challenge to the Government decision to keep them in prison.
A source closely involved in the Government's discussions on the case says a legal challenge is expected when the courts reconvene after the summer recess.
A Government spokesman said last night that any legal case seeking the release of the four men would be contested. However, there is mixed opinion on whether the Government's attempts to keep the four in prison would succeed. The issue has been discussed at senior Government level recently.
The four men were sentenced to between 11 and 14 years for killing Det Garda McCabe as he and his colleague, Det Garda Ben O'Sullivan, guarded a cash delivery in Adare, Co Limerick, in June 1996. At the time the IRA was not on ceasefire. Under the agreement paramilitary prisoners convicted of offences committed before April 9th, 1998, were due for release within two years.
The final release of nearly 90 prisoners from the Maze in Belfast last week has focused attention on the last four remaining Provisional IRA prisoners in the Republic. No reply was available from the Department of Justice yesterday as to whether the Attorney General, Mr Michael McDowell, had been consulted and if an opinion had been given about any legal challenge to the men's continued incarceration.
Although the Minister for Justice insisted again yesterday that the Government's position was unchanged, E radio interview, Mr O'Donoghue stopped short of saying the Government's position was binding on future administrations.
Choosing his words carefully, Mr O'Donoghue said: "On a number of occasions the Taoiseach and I have made the Government's position quite clear. The position is as we outlined it a considerable period of time back . . . there is nothing to add or subtract."
When asked if he saw this position as binding on future Governments he said: "Like I said, if there was anything to add or subtract, I would only be too happy to assist. There is nothing to add or subtract."
Speaking just after the agreement was signed in 1998, Mr O'Donoghue said those "who may be convicted in connection with the murder of Det Garda Jerry McCabe" would not come within the ambit of the agreement concerning the release of prisoners.
Sinn Fein, meanwhile, has contradicted reports that it was told by the Government during the negotiation of the Belfast Agreement that the men convicted of the killing would not qualify for early release. A spokesman confirmed yesterday that his party had raised the issue during the negotiations, but said reports that its case had been rejected were untrue. In February 1998 the Sinn Fein leader, Mr Gerry Adams, asked that the four killers be included in the prisoner early-release scheme under the agreement. Sinn Fein Assembly member Mr Gerry Kelly yesterday said their continued imprisonment was "against the letter and the spirit of the Good Friday agreement".
The Garda Representative Association said the Government had given it an "absolute assurance" that the men would not be freed under the terms of the agreement.
Government sources said that under the terms of the Criminal Justice (Release of Prisoners) Act, which governs the amnesty for political prisoners, the Minister for Justice has to recommend prisoners for release to a three-member commission. It was made emphatically clear that Det Garda McCabe's killers would not have their names put forward to the commission.
It emerged in December 1999 the Government had given an assurance to Ms Anne McCabe, widow of Det Garda McCabe, that his killers would not benefit from the early release scheme.