McCabe killers may yet get early release

In a previous judgement on the release of two of the killlers of Jerry McCabe the Supreme Court made a grevious factual error, which later it refused to correct. However, if the factual error is not repeated, the logic of the Court applied in the previous case would suggest that two other killers may get early release, writes Vincent Browne

The killers of Jerry McCabe could still win early release from the courts under the Good Friday Agreement, even though the Supreme Court last year refused to release two of the killers under that Agreement. The decision of the Supreme Court in January of last year was based on a factual error and the courts may now find grounds for the release of the other two killers given the correction of that error.

Two of the killers, Pearse McCauley and Jeremiah Sheehy, have sought judicial review of the decision of the Minister for Justice, Equality and Law Reform not to release them under the agreement. Their application for judicial review was adjourned in the High Court on Wednesday 16 March and it may be several months before the case re-enters the court list.

In the case taken by two of the others involved in the killing of Jerry McCabe, O'Neill and Quinn v the Governor of Castlereagh Prison, The Supreme Court acknowledged, in the judgment of the then chief justice, Ronan Keane, that although the terms of the Criminal Justice (Release of Prisoners) Act 1998 gave the Minister for Justice wide discretion on which prisoners to release under the Act (an Act inspired by the terms of the Good Friday Agreement), the minister was required to exercise powers given to him under the act in "good faith" and "in a manner which cannot be characterised as arbitrary, capricious or irrational".

It was contended on behalf of the prisoners that they had been treated in an arbitrary and capricious manner. Other prisoners, convicted of crimes far more serious than the manslaughter offence for which these prisoners were convicted, had been released.

The Supreme Court held, however, that there was no invidious discrimination in the minister agreeing to release prisoners convicted of offences before the Good Friday Agreement was signed in April 1998, while refusing to release prisoners convicted after that date.

The Court obviously believed that nobody convicted following the signing of the Good Friday agreement had been released. However this belief was mistaken. Several prisoners convicted after the Good Friday Agreement was signed have been released under the agreement.

John Carolan of Mullagh, Co Cavan was convicted in the Special Criminal Court on 3 August 2000 (more than two years after the agreement was signed) of possession of firearms, ammunition and mortar parts on 10 March 1998 (this, incidentally was almost two years after the killing of McCabe). He was sentenced to four years imprisonment and released seven weeks later under the terms of the Good Friday Agreement.

Padraig Steenson was convicted by the Special Criminal Court on 14 April 2000 of having unlawful control of semtex explosives, incendiary devices, bomb parts and firearms on 7 November 1997. He was sentenced on 22 May 2000 to seven years imprisonment and released within two months under the terms of the Good Friday Agreement.

The basis, therefore, on which the Court concluded there had been no invidious discrimination in the refusal to release these two of the McCabe killers was false. On the reasoning of the Supreme Court in the O'Neill and Quinn case it would seem the the two current applicants should be released. It would then be legally impossible to justify the continued imprisonment of the other killers of Jerry McCabe.

There have been several releases under the Agreement in Northern Ireland of persons convicted after the signing of the Agreement.

Bernard McGlinn of Castleblayney, Co Monaghan, was convicted in Belfast on 18 March 1999 of the murder of two British soldiers and a former member of the UDR.

One of the British soldiers he murdered was the last soldier to be killed in the North in the course of the conflict, Lance Bombardier Stephen Restorick.

McGlinn was also convicted on 18 March 1999 of the murders of Lance Bombardier Paul Garrett in 1993, and former UDR member, Thomas Johnston, in 1978.

Garrett was murdered by a sniper's bullet on 2 December 1993 in Keady, Co Armagh.

Johnston was 25 when he was murdered by McGlinn and others. He was a former member of the UDR from Tullyvallen, Newtownhamilton, Co Armagh. On the evening of Saturday 19 August 1978 he went into a confectionary shop at Keady to buy his girlfriend a packet of crisps. On coming out of the shop, he was hit by bullets from two Armalite rifles and died almost immediately. His girlfriend was wounded in the arm and chest.

McGlinn was also convicted of making bombs, which exploded at the Baltic Exchange, Hammersmith Bridge and Canary Wharf in London, and other offences. He was sentenced to a total of 490 years imprisonment.

McGlinn was convicted along with three others, Michael Caraher of Cullyhana and Martin Mines of Silverbridge. Caraher was sentenced to 25 years imprisonment for the attempted murder of RUC Constable, Ronnie Galway, in Forkhill Co Armagh in 1997. The others also received lengthy prison sentences. The defendants refused to recognise the court and they laughed and shouted jubilantly at friends when sentences were imposed, knowing they would be soon released. All four were, in fact, released on 28 July 2000 under the Good Friday Agreement.

James McArdle was convicted at Woolwich Crown Court on 26 June 1998 of conspiring to cause the London docklands bombings of 9 February 1996 and was sentenced to 25 years in prison. He was released on 28 July 2000 under the terms of the agreement.

Leslie Henry and Alistair Stevenson were convicted on 21 December 1998 of the murder of RUC Constable Gregory Taylor in Ballymoney on 1 June 1997 and were sentenced to life imprisonment. Taylor was beaten to death by a loyalist mob. He and two other policemen were drinking in a bar in Ballymoney and were accosted by drunken members of orange bands, angered at the RUC involvement in the banning of orange parades. A few days after he was buried vandals attacked his grave, scattering wreaths and scrawling gloating graffiti. Taylor was murdered almost a year after the killing of McCabe. Henry and Stevenson were released under the terms of the Good Friday Agreement on 28 July 2000.

Ryan Robley pleaded guilty on 11 July 1999 to the murders of Philip Allen (34) and Damien Trainor (25) on 3 March 1998.

The former was a Protestant, the latter a Catholic and they were close friends. Trainor was to be best man at Allen's wedding. They were murdered by loyalist gunmen who broke into the Railway Bar at Poyntzpass, Co Down, which is a mainly Catholic town. Their parents rushed to the scene of the shootings and were able to talk to the two men before they lost consciousness.

The then Northern Secretary, Mo Mowlam, said the killings were "soul-destroying". David Trimble and Seamus Mallon visited the village together in the wake of the killings, to offer their joint condolences. Robley was released under the terms of the Good Friday Agreement.

Norman Coopey from Newcastle, Co Down, was convicted in January 1999 of the murder of James Morgan (16) near the village of Clough, Co Down on 24 July 1997, six weeks after the killing of McCabe. Morgan was murdered because he was a Catholic. He was struck several times on the head with a hammer and then his body was doused with petrol and set alight, before being dumped in a water-filled hole. Coopey was released under the terms of the Good Friday Agreement.

Even if releases in the North (under the Agreement) of prisoners convicted after the signing of the agreement were deemed irrelevant as to whether the minister is improperly discriminating against the McCabe killers, the fact is that Steenson and Carolan were convicted long after the McCabe killers, and that they were released. This shows that the minister acted on the basis of a discrimination that has not been explained and not justified.

The fact that the minister and the Taoiseach stated, on several occasions prior to the conviction and afterwards, that the killers of McCabe would not be released is irrelevant to the issue of whether what was done amounts to unjustifiable discrimination.

The Supreme Court was invited by lawyers for the prisoners to quash its 29 January judgment in the light of this factual information. There are clear precedents for the Supreme Court reversing itself when it has got matters wrong.

In this instance, on 1 April last, it simply refused to do so. The written judgment of the Chief Justice explaining the reasoning for this refusal has not yet been issued.