The High Court will be asked on Wednesday to drop a charge of false imprisonment against the Brix ton prison escaper Nessan Quinlivan. The application was made yesterday following the decision of the Special Criminal Court that the offence of false imprisonment under common law no longer exists.
Quinlivan (31), of Knockalisheen Avenue, Ballynanty Beg, Limerick, is in custody awaiting trial on a charge of falsely imprisoning Mr Michael Lyons at Garryowen, Limerick, on August 25th last year.
He is also wanted in Britain on charges of conspiracy to murder, conspiracy to cause explosions, escaping from prison and wounding with intent.
Yesterday Quinlivan appeared before the High Court when his lawyers sought a habeas corpus order.
Mr Justice Barr, presiding over the Special Criminal Court, had said Section 15 of the Non-Fatal Offences Against the Person Act 1997 created a statutory offence of false imprisonment and abolished the prior common law offence. He said there was no provision in that Act or the Interpretation Acts to allow prosecution of such offences at common law allegedly committed prior to the date when the 1997 Act came into force, which was August 9th this year.
In court yesterday Mr Diarmaid McGuinness SC, for the governor of Portlaoise Prison, said Quinlivan was in custody on foot of a warrant issued by the Special Criminal Court, and was due to go on trial before that court on November 11th on a charge of falsely imprisoning Mr Michael Lyons contrary to common law.
Counsel said a substantial constitutional issue arose out of the interpretation put by Quinlivan's lawyers on this week's Special Criminal Court decision. It was being contended that that decision terminated the right of the Director of Public Prosecutions to prosecute Quinlivan on the false imprisonment charge.
If that interpretation was correct and if the relevant section of the Non-Fatal Offences Act abolished the DPP's right to prosecute, a constitutional issue was raised.
It would be an "extraordinary construction" to hold that the Oireachtas had intended to stop people "allegedly guilty" of kidnapping from being prosecuted, counsel said. He argued that the section did not impinge on existing proceedings.
Mr McGuinness said there were other matters he wished to consider, including a ruling yesterday by Mrs Justice McGuinness which appeared to follow the Special Criminal Court decision.
He said the DPP also wished to be joined to the proceedings and asked for an adjournment until Wednesday next. The Attorney General was also to be put on notice regarding it.
Mr Blaise O'Carroll SC, for Quinlivan, said he would consent to the adjournment provided the case went ahead on Wednesday.
Mr Justice Carney said he would put the matter in before the judicial review judge next Wednesday.