The High Court has dismissed a legal challenge against a decision of the Minister for Justice refusing to release convicted IRA leader Michael McKevitt, under a scheme of enhanced remission of sentence.
However, McKevitt will now attempt to launch another challenge to his detention using an alternative legal mechanism, judicial review.
This afternoon Mr Justice Bernard Barton applied a recent Supreme Court decision, which ruled that the Minister’s decision could not be challenged using Article 40 of the Constitution.
Mr Justice Bernard Barton ruled the decision of the Minister was a valid one.
McKevitt’s lawyers immediately applied to another judge of the High Court for permission to seek a judicial review.
A ruling is expected later this evening.
Earlier today lawyers for McKevitt told the court they were withdrawing the challenge taken under Article 40 in light of the Supreme Court decision.
However, Mr Justice Bernard Barton said he would still give his judgment in the case because of the “public importance and public interest” of the case.
McKevitt, 59, from Beech Park, Blackrock, Co Louth, had sought an Article 40 inquiry under the Constitution claiming his continued detention at Portlaoise Prison is unlawful.
However, the application was overtaken by a decision of the Supreme Court which ruled an Article 40 inquiry was the incorrect legal mechanism for such challenges.
McKevitt will now seek leave to bring a judicial review of the Minister’s decision not to grant him remission of sentence.
Lawyers for McKevitt told the High Court this morning they were withdrawing the application and would instead seek a judicial review of the Minister’s decision, which the Supreme Court had ruled was the correct way to proceed with the challenge.
They said it was possible that McKevitt was still illegally detained and therefore they would be asking for leave to seek judicial review and requesting an expedited hearing.
McKevitt was jailed for 20 years in 2003 for directing terrorism and membership of the Real IRA.
He claimed he was entitled to one third remission of his sentence for good behaviour and participation in activities designed to prepare him for release.
His lawyers claimed that if proper consideration for a one third enhanced remission had been given he would already have been released by now.
Judge Barton had adjourned ruling on the matter pending the decision of the Supreme Court in a case brought by Limerick man Eddie Ryan, where a similar legal argument had been made.
Last month Ryan was released from prison after Mr Justice Max Barrett found that under Rule 59 of the 2007 Prison rules Ryan, imprisoned for possession of a pistol and ammunition, was entitled to release.
However, the Supreme Court ruled Ryan’s release by the High Court was invalid and ordered his re-arrest.
The Supreme Court held his release by way of habeas corpus under Article 40 of the Constitution was not the appropriate remedy on the issue of remission of prison sentence.
It agreed with the State, which had appealed the Ryan High Court ruling, that Ryan’s application for early release should have been brought by way of judicial review.