Dessie O' Hare

hullaballoo

There is one caveat in operation here from the outset, and that is that defamatory remarks will be deleted immediately. Bans will be met out to people who go against this warning.

Following a post that had to be deleted this morning, I started thinking about the O' Hare case. I'm interested to know what people think of the situation the way it is. The man was sentenced to serve forty years, of which he served 17 for what was a despicable act.

How do you think it has been dealt with? Should he have had to serve out the full sentence? To what extent would people be afraid of a re-offence, or re-involvement with any illegal organisations?

Eru

hullaballoo wrote:

The man was sentenced to serve forty years, of which he served 17 for what was a dispicable act.

Thats really the start and finish of the arguement. THe simple fact in this case is that the crime was commited against a Republic of Ireland citizen, within the Republic of Ireland and the victim had no contact with any political (being polite ) group. Therefore the act of this person cannot be defended on 'Republican' idealogy or ignorance. The fact that the act was carried out for financial gain just makes it worse as there was no personal reasoning behind it nor actual ill will against the victim, it could have been anyone.

In my opinion such people are incapable of reform and under such circumstances will find himself frustrated at no longer having s 'justified' outlet for his evil acts. I have no doubt he will re-offend in a sickening way and will not refrain from targeting any single person.

hullaballoo wrote:

Should he have had to serve out the full sentence? To what extent would people be afraid of a re-offence, or re-involvement with any illegal organisations?

1. Yes and I think he is an example if why we should have the ability for indefinate sentences. Remember, he shows no regret or guilt for his actions.

2. The organisation he was involved with is now obsolete in the context he was used too. His skills lie within causing pain and suffering not in planning or executing crime and due to his volatile nature and indifference to his colleagues I dont think he will link up with any former comrades. We should remember and watch carefully, his relationship with Gilligan.

joebhoy1916

Karlitosway1978 wrote:

Thats really the start and finish of the arguement. THe simple fact in this case is that the crime was commited against a Republic of Ireland citizen, within the Republic of Ireland and the victim had no contact with any political (being polite ) group. Therefore the act of this person cannot be defended on 'Republican' idealogy or ignorance. The fact that the act was carried out for financial gain just makes it worse as there was no personal reasoning behind it nor actual ill will against the victim, it could have been anyone.


1. Both Governments will put in place mechanisms to provide for an accelerated programme for the release of prisoners, including transferred prisoners, convicted of scheduled offences in Northern Ireland or, in the case of those sentenced outside Northern Ireland, similar offences (referred to hereafter as qualifying prisoners). Any such arrangements will protect the rights of individual prisoners under national and international law

Doesnt matter where his crime was commited he
was a "political prisoner" or if you like a qualifying
prisoner. (Goverment 2001).

The Governments will seek to enact the appropriate legislation to give effect to these arrangements by the end of June 1998.

The man should of been out years ago.

hullaballoo

So you think that a peace accord should stand in the way of justice? You think that because the government had to resort to releasing criminals from gaol in order to stop murder and (although I am loathe to say it) criminality, that this is a benefit for our society? Do you think we should be proud of our legal system because of this?

To be honest, I've always doubted the legality of releasing prisoners under the Good Friday agreement. It seems to me that the separation of powers should prevent the government being able to step in and release prisoners at their whim. The President is the only person with the power to grant clemency, and I'm not sure to what extent she was involved in the agreement. Decisions regarding parole are still taken by the courts, so that didn't come into it either. Can anyone answer these questions?

Trojan911

hullaballoo wrote:

How do you think it has been dealt with?

Pretty appalling. Mutilation was used, he should have served out the full forty in my opinion.

hullaballoo wrote:

Should he have had to serve out the full sentence?

Yes, without any doubt.

hullaballoo wrote:

To what extent would people be afraid of a re-offence, or re-involvement with any illegal organisations?

No doubt there either. Once a player, always a player..

Karlitosway1978 wrote:

In my opinion such people are incapable of reform and under such circumstances will find himself frustrated at no longer having s 'justified' outlet for his evil acts. I have no doubt he will re-offend in a sickening way and will not refrain from targeting any single person.

I agree...

joebhoy1916 wrote:

Doesnt matter where his crime was commited he
was a "political prisoner" or if you like a qualifying
prisoner. (Goverment 2001). The man should of been out years ago.

He committed a despicable act of mutilation on a fellow human being, amongst other serious crimes to this same human being, he should not have been released in my opinion.

TJ911...

joebhoy1916

He committed a despicable act of mutilation on a fellow human being, amongst other serious crimes to this same human being, he should not have been released in my opinion.

TJ911...[/QUOTE]

What about the people who blew other people up.

hullaballoo wrote:

So you think that a peace accord should stand in the way of justice?

If you ask me they got justice he served 18 years I know a guy
who killed his father with a hammer he got 6 years.

"The President is the only person with the power to grant clemency, and I'm not sure to what extent she was involved in the agreement"

Good point but from what im aware she agreed for all the prisoners
to be set free.

Our man in Havana

Would there be any legal precedent to make him serve his full sentance? Or is everybody entitled to remission and parole?

hullaballoo

No, you can't re-lock up an offender like that unless he breaches the terms of his parole.

joeybhoy: I have a feeling that you may be misinformed as to the President's role in the agreement. I have not seen that she was involved in it whatsoever. I assume that the agreement has stood as it is because of the political precariousness that surrounds it. I can't imagine who might have the locus standi to take the constitutional challenge, nor can I imagine what judge would give judgement in their favour.

That, however is not testiment to its lawfulness. It is, as the Scottish say, "unproven".

Our man in Havana

What I meant was say if a person was sentenced to 40 years, is there any legal reason not to make them serve the full 40 years? Would the offender have any legal right to remission or parole?

joebhoy1916

I understand what you mean but he was in the INLA
its his right to be set free under the GFA as the
goverment decided in 2001 i believe it was.

nor can I imagine what judge would give judgement in their favour.

Cant see why you are talking about judges.

It is, as the Scottish say, "unproven".[/QUOTE]

Im not Scottish

hullaballoo

Eh, you realise this is the Legal Discussion forum right? Judges tend to arise in conversation.

joebhoy1916

You are talking about judges but this has nothing to
do with judges. The final decision on when he will be completely released rests with the Minister for Justice, Michael McDowell not judges

Trojan911

joebhoy1916 wrote:

What about the people who blew other people up.

We are not talking about people blowing people up here, just the release of O'Hare..


TJ911...

joebhoy1916

Yes but the man just said a minute ago that
he should not be released because of what he done
and what im saying is its his right to be released
under the GFA! He thinks he shouldnt be released
because he cut the mans fingers off but people
were released who blew othe people up.

The man held a guy and chopped his fingers
off and served 18 years and half of ye think
he should of served the 40 years. Jesus people
who murder someone get what about 20 years.

hullaballoo

joebhoy1916 wrote:

You are talking about judges but this has nothing to
do with judges. The final decision on when he will be completely released rests with the Minister for Justice, Michael McDowell not judges

Ok, you probably haven't studied constitutional law, so I'm going to give you the benefit of the doubt on that one and try to explain some of it to you.

Under the constitution, the powers of the state are separated into the Judiciary, the Legislature and the Executive. (This is what I was talking about with the separation of powers above.) Now, it's not important what the executive do for the purposes of this illustration, so leave that to one side for a moment.

The Legislature.
This comprises the Seanad and the Dáil, which together make up the Oireachtas. The Oireachtas has the job of making the laws of the state, and there is a process for such laid down in the constitution. Due to the fact that it is the job of the Oireachtas to make laws, the constitution expressly says that it is their job alone. In other words, it's not down to anyone else to make law - this includes the courts.

The Judiciary.
The job of the Judiciary is to apply the law that the Oireachtas has made, but it is also within their remit, and their remit alone, to administer justice. This is where my argument arises out of the O'Hare case. Judges have the job of sentencing criminals, and it is also their job to decide whether such people who have been sentenced should be released from such a sentence that they have handed down. Thus, it is outside the power of the government to decide who can be released from imprisonment, as it is solely for the judiciary to deal with.

I hope this has provided some insight into the legal issues surrounding the release of prisoners under the GFA. It is a very crude and rudimentary run-down of the state of the law, but it is, to my mind, an accurate analysis.

joebhoy1916

This is where my argument arises out of the O'Hare case. Judges have the job of sentencing criminals, and it is also their job to decide whether such people who have been sentenced should be released from such a sentence that they have handed down.


Maybe so but you are wrong in this case.

And to answer your question no i havent!

Dessie O`Hare aka `The Border Fox`, who has served fourteen years in prison for the kidnapping and mutilation of a Dublin dentist in 1987, is being prepared for release under the Good Friday Agreement.


O`Hare and members of his gang abducted John O`Grady and held him captive for a period in 1987.


A ransom demand was issued and when Gardai failed to find it under a statue of The Blessed Virgin in Limerick Cathedral O`Hare, who had mistakenly assumed they had been stalling for more time, cut off the little finger on each of Mr O`Grady`s hands.


There then followed a desperate manhunt during which he eluded capture for a number of weeks and during which O`Hare was nicknamed the Border Fox.


As a member of the INLA he was entitled to early release from his 40 year sentence under the Good Friday Agreement and has been transferred to Castlerea Prison from Portlaoise where he has spent the past fourteen years.

This was wrote in 2002. Where are you from? Hulla

hullaballoo

It's none of your business where I'm from.

Incidentally, I'm not going to be told I'm wrong on an issue of constitutional law by someone who admits to never having read the constitution. I mean, how ridiculous are you trying to make yourself look?

I can't fathom what you're trying to get at by typing what appear to be newspaper reports, without attributing them to any particular newspaper at all. Maybe you could explain the point of that? All your doing is setting down the facts without addressing any of the legal issues. This is the Legal Discussion forum. If you want to spout nationalist ráiméis, you can do it in After Hours, but not in here.

Anyway, aside from the legal issues, O'Hare should still be in gaol for what he did. Serving less than half of your sentence for the mutilation of another man for financial gain is unbelieveable. Add to that all of the other offences he's been implicated in and you'll see the reasoning behind such a strict sentence. My point is that the government do not have the power to second-guess the courts on these matters. Of that I am sure.

Eru

Ah I agree, Im all turned around thanks to these compelling facts:

1. Dessie's "crime", if 'crime' it was, was to be an active Republican.
Hmmm, chopping off fingers that belong to citizens of the republic of Ireland is not a crime in the eyes of the INLA, good view of justice from the trenches there.

2. Dessie is being victimised, discriminated against and demonised by the state authorities. And yet his activities were no different from those of hundreds of others released under the GFA.
I partly agree, most Republican scumbags terrorised and tortured innocent people.

Both quoted from http://irsm.org/irsp/free_dessie/background.html

joebhoy1916 wrote:

1. Both Governments will put in place mechanisms to provide for an accelerated programme for the release of prisoners, including transferred prisoners, convicted of scheduled offences in Northern Ireland or, in the case of those sentenced outside Northern Ireland, similar offences (referred to hereafter as qualifying prisoners). Any such arrangements will protect the rights of individual prisoners under national and international law

Doesnt matter where his crime was commited he
was a "political prisoner" or if you like a qualifying
prisoner. (Goverment 2001).

The Governments will seek to enact the appropriate legislation to give effect to these arrangements by the end of June 1998.

The man should of been out years ago.

Now, I have to take issue here as you are guilty of selective quoting and an incorrect comment.

A, You have quoted part 1 however in part 3 it states: "while allowing account to be taken of the seriousness of the offences for which the person was convicted and the need to protect the community" This is important, there is reason to worry for the safety of society should he be released.

B, This is the important one, Part 1 and just about every reference clearly states "convicted of scheduled offences in Northern Ireland or, in the case of those sentenced outside Northern Ireland, similar offences" can you please advise if kidnapping and assault are scheduled offences or similar? I do believe they are not. In fact they are not once mentioned as a scheduled offence in either Northern Ireland or the Republic of Ireland therefore he does not fall under the good friday agreement and is not due for release.

**Deleted a needless insult**

joebhoy1916

http://saoirse32.blogsome.com/2005/08/11/%80%98free-o%E2%80%99hare-now%E2%80%99

Read near bottom

This has nothing to do with O Hare but might be worth reading

http://www.rte.ie/news/2000/0808/prisoners.html

I aint a Provo

Eru

joebhoy1916 wrote:

http://saoirse32.blogsome.com/2005/08/11/%80%98free-o%E2%80%99hare-now%E2%80%99

Read near bottom

I dont as a rule read provo propaganda however I followed the link, no actual posts just a page with a pic of Bobby Sands and a logo. Its also a blog, it could say aliens have infiltrated the IRA, dont make it true however post another link and I will look.

joebhoy1916 wrote:

This has nothing to do with O Hare but might be worth reading

http://www.rte.ie/news/2000/0808/prisoners.html

Vaguely interesting OK but armed robbery falls under fireams offences so could be scheduled. Assault didnt involve firearm and your really pushing to bring the kidnapping in. This guy however has no chance, he wasnt a member of the INLA when the GFA came in or when the INLA went on a ceasefire. His arguement is the same as every Dublin criminal, "Im not in a non-ceasefire group", And????

joebhoy1916 wrote:

I aint a Provo

I said a pub provo, you support them.

dermot_sheehan

Just to add some points:

The power to commute is vested in the president, who acts on the advice of the government in using it (i.e. she has no discretion). The constitution provides that except in capital cases it may be delegated by law. The Criminal justice act (1951 I think) delegates it on the minister for justice.

So anyone who is serving time except for treason or capital murder may be released on licence by the minister for justice.

My own personal views are that he's scum and should never breathe free air again, but remember we are willing to release murderers under the good friday agreement in order to appease the IRA, and as bad as what O'Hare did, is it worse then taking someone else's life? Also I think it's BS that he qualifies since he only joined the INLA while in portlaoise and the INLA themselves qualifying under the GFA is tenuous at best.

joebhoy1916

I dont think i need to say anymore on the matter
someone thats not from my country is trying to
tell me im wrong. Em thats not true i dont believe,
he was the Provo's first at a young age then switched
to the INLA.

I dont support the Provo's anyways there long
gone my friend the war is over.

hullaballoo

What do you mean not from your country?

dermot_sheehan

joebhoy1916 wrote:

I dont think i need to say anymore on the matter
someone thats not from my country is trying to
tell me im wrong. Em thats not true i dont believe,
he was the Provo's first at a young age then switched
to the INLA.

I dont support the Provo's anyways there long
gone my friend the war is over.

And being in provos is not a get out of jail free card, it's more like a get put into jail on the word of a garda seargent.

The war may be over, but did o'hare's kidnap, ransom, an mutilation of an innocent dentist further that "war"?

joebhoy1916

What you on about Gab i never said anything about you.

And i believe its the Criminal Justice (Temporary Release of Prisoners) Bill, 2001

And being in provos is not a get out of jail free card, it's more like a get put into jail on the word of a garda seargent. (I would agree)

The war may be over, but did o'hare's kidnap, ransom, an mutilation of an innocent dentist further that "war"?[/QUOTE]

Im not sticking up for the man im just saying it was his right
to be freed. He served 18 years for what cutting off a man's
two small fingers killers wouldnt even get 18 years

dermot_sheehan

joebhoy1916 wrote:

What you on about Gab i never said anything about you.

And i believe its the Criminal Justice (Temporary Release of Prisoners) Bill, 2001

And being in provos is not a get out of jail free card, it's more like a get put into jail on the word of a garda seargent. (I would agree)

The war may be over, but did o'hare's kidnap, ransom, an mutilation of an innocent dentist further that "war"?

Im not sticking up for the man im just saying it was his right
to be freed. He served 18 years for what cutting off a man's
two small fingers killers wouldnt even get 18 years[/quote]

Ok, assumed you were referring to me.


He's freed on licence anyways, so the department of justice can call him in at any time, and even though he's servered only 18 years, remember many murderers don't serve that long.

joebhoy1916

He's freed on licence anyways, so the department of justice can call him in at any time

Yes he has to sign on next month and from what im aware
he's as good as a free man.

and even though he's servered only 18 years, remember many murderers don't serve that long.[/QUOTE]

Thats what im saying he got 40 years (the longest sentence ever handed down by the state for less than murder) for cutting a guys two
fingers off well ok he kidnapped him and he might of killed
him if the Garda didnt find him the man is nearly 50 now.
He is in jail most of his life and if he is half as bad as i think
he will be back in there soon enough.

joebhoy1916

Hulla was just wondering if you clear this
up whether I was right or wrong?

mountainyman

hullaballoo wrote:

Anyway, aside from the legal issues, O'Hare should still be in gaol for what he did.

There are individuals who should be detained permanently on utilitarian grounds. This is not in accordance with law. The initial sentence was absurd and amounted to the construction of ad hoc law.

hullaballoo wrote:

My point is that the government do not have the power to second-guess the courts on these matters. Of that I am sure.

You are quite right and the point is totally irrelevant. The judiciary (like the executive) are subordinate to the legislature. The exercise of justice was not assumed by the legislature. New guidelines were provided to the judiciary regarding parole and license. These are guidelines which the judiciary must follow. Given that they were put in place by the Dail there is no chance whatever of a judicial revolt. Had the Minister for Justice sought to impose the GFA there would have been such a revolt.

Was there an Article 26 referral of the GFA?

Pardons have not been granted

While it may be bad to cut off a mans little fingers the construction of ad hoc law is far worse.

Justice Carney in effect created ad hoc law. This is a continuing problem in the republic.

MM

hullaballoo

I'd edit out that defamatory comment quick-smart if you want to escape a ban, MM.

Aside from any of that. You are incorrect to state that the judiciary is a subordinate body to any of the other powers. The powers are all equal in terms of authority, they just each have different jobs. If the judiciary were subordinate to the government, then they would not be able to pronounce on the legality of state activity.

The sentence was not unreasonable in the least. Threatening to post a mans body to his relatives piece by piece is deserving of a heavy sentence.

mountainyman

hullaballoo wrote:

The powers are all equal in terms of authority, they just each have different jobs.

I don't agree that this statement is accurate in even a strictly technical sense. In a 'practical' sense (in the sense of the practise of the judiciary) it simply isn't true. The separation of powers is central to the strength of our democracy (seperation of powers is weak in Ireland). So is accountability to the people this is demonstrated by the people at elections to the legislature and judges are aware of this.

hullaballoo wrote:

If the judiciary were subordinate to the government...

I never said the judiciary were subordinate to the government (though as the GFA is an international treaty in practical terms they would have been loathe to make, accept or assist any challenge in this case).

hullaballoo wrote:

then they would not be able to pronounce on the legality of state activity.

The state is governed in accordance with the rule of law. (Ad hoc in the O'Hare case) Pronouncements on the legality of executive activity are clearly within the ambit of the judiciary. However in terms of legislation theactivities of judges are more limited.

hullaballoo wrote:

The sentence was not unreasonable in the least. Threatening to post a mans body to his relatives piece by piece is deserving of a heavy sentence.

The sentence was unpredictable and amounted to the implementation of ad hoc law. The law must be predictable.

aidjtk

dessie o hare did a crime and got forty years served 18 ( didn't know he was out thanks for telling me) this is bad example of justice but it is not without precedence.
nickie kelly was released by presidential pardon on humanitarian grounds. he took part in the worst robbery in the state ( Up until the newest northern bank robbery). he was released
republicanism is rife in this country and is at the underbelly of criminallity. the fact is that republicanism was never defined meant that the official IRA provisional IRA the REAL IRA the INLA The IRSP( which is supposedly a political party but nickie kelly was a member and is was noted as a 'republican' organisation) can all use the GFA as an excuse to let people become rapped up in a world they 'own' and then let criminals free because they where doing there duty for republicanism. heres a few questions
What benefit does republicanism have if its members are dismembering people
what benefit does republicanism have if its members are allowed to be big shot criminals
dessie is not the only Republican to have links with criminality
when eamon de valera walked out of politics he created the IRA ( not directly and I will not condone him being refered to as republican in that sence), because he didn't except that peace was the answer. the civil war insued. Since then republicanism born in the 1800s as a fenian ideology died republicanism is now something uncontrolable, unadvisable and whether you want to accept it runs this country better than any government or police. the only way to kill republicanism is if it kills itself.

dermot_sheehan

mountainyman wrote:

There are individuals who should be detained permanently on utilitarian grounds. This is not in accordance with law. The initial sentence was absurd and amounted to the construction of ad hoc law.


You are quite right and the point is totally irrelevant. The judiciary (like the executive) are subordinate to the legislature. The exercise of justice was not assumed by the legislature. New guidelines were provided to the judiciary regarding parole and license. These are guidelines which the judiciary must follow. Given that they were put in place by the Dail there is no chance whatever of a judicial revolt. Had the Minister for Justice sought to impose the GFA there would have been such a revolt.

Was there an Article 26 referral of the GFA?

Pardons have not been granted

While it may be bad to cut off a mans little fingers the construction of ad hoc law is far worse.

Justice Carney in effect created ad hoc law. This is a continuing problem in the republic.

MM

Adhoc law? False imprisonment carries a discretionary life sentence, which means the judge can set any tariff up to and including life, the judge in this case (not sure if it would have been Carney as it would have been held in the Special Criminal Court) set the tariff at 40 years which was appropriate in my opinion given the immense aggravating factors in the case.

Judiciary are not subordinate to legislature, read Article 6 of the Constitution.

The good friday agreement is not operative in the state save to the extent it is incorporated by the oireactas.

aidjtk

As a law student i have to clear up a few law areas that i feel need clarification.
once a sentence has been passed it is up to the executive to free a person and no judge can release a person after a sentence has been given except where a hapeus Corpus application and only then on humanitarian grounds
A sentence of 40 years is not ad hoc law the judge must follow legislative guidelines.
presidential pardon is a power given by the constitution and has nothing to do with the GFA. it has been used infrequently.Used by nickie kelly and noel and marie murray got there sentence reduced to 40 years. A crime must be have been commited and if no crime has been commited no pardon.
dessie o hare got 40 years. this however would never have been done and fourty years would never have been served in full. the minister for justice decides when a person should be freed and this is often done before full sentence is served.
any person who is released early with usually be released on parole and will have to present himself at a garda station every month and will enter a bond to keep the peace
the judiciary is not subordinate to any of the other parts of government. they exist on parallel lines on a system of checks and balances(hence the power of the judiciary to state law as unconstitutional under article 26)

hullaballoo

Most of the posters in this forum are either law students, professional lawyers, or work in areas of the law, so the fact that you are a law student doesn't represent that you're any kind of authority on the subject.

aidjtk wrote:

once a sentence has been passed it is up to the executive to free a person and no judge can release a person after a sentence has been given except where a hapeus Corpus application

That isn't true. Parole applications are made through the courts and the judge decides whether or not to release the offender.

Reference me something that says that the executive/minister for justice makes these decisions, and I'll have a look for myself.

mountainyman

gabhain7 wrote:

Judiciary are not subordinate to legislature, read Article 6 of the Constitution.

Read article 6.1; as I say the people have a right to ensure their servants are accountable; both this fact and our tradition of British parliamentary democracy ensure that the judiciary are aware of their status. The puropse of law is to predict the actions of various actors (those carrying out law jobs) and in this regard the judiciary are subordinate.

gabhain7 wrote:

Adhoc law? False imprisonment carries a discretionary life sentence

The purpose of law is to predict the actions of those carrying out law jobs, largely but not exclusively judges, and as such sentencing must be consistent. Life must not mean 8 years in one case and 40 in another. The Irish state does attach a high value to little fingers (up to €50,000 each); however the additional 32 years seems excessive.[/qUOTE]

gabhain7 wrote:

The good friday agreement is not operative in the state save to the extent it is incorporated by the oireactas.

Read Article 25.1

aidjtk wrote:

the judiciary is not subordinate to any of the other parts of government. they exist on parallel lines on a system of checks and balances(hence the power of the judiciary to state law as unconstitutional under article 26)

Look at the actions of the branches of government and you will see that the judiciary are subordinate to the legislature. In practise the Legislature is subordinate to the executive. However the Judiciary are not subordinate to the executive in paractise.

The constitution is the fundamental law of the state as such all references to Article 26 are moot.


MM

aidjtk

CRIMINAL JUSTICE ACT, 1960
Criminal Justice (Temporary Release of Prisoners) Act 2003
CRIMINAL JUSTICE (RELEASE OF PRISONERS) ACT, 1998
all state that the minister is responcible for early release
parole often ends up in the courts because the minister won't do his job

dermot_sheehan

mountainyman wrote:

Read article 6.1; as I say the people have a right to ensure their servants are accountable; both this fact and our tradition of British parliamentary democracy ensure that the judiciary are aware of their status. The puropse of law is to predict the actions of various actors (those carrying out law jobs) and in this regard the judiciary are subordinate.

The purpose of law is to predict the actions of those carrying out law jobs, largely but not exclusively judges, and as such sentencing must be consistent. Life must not mean 8 years in one case and 40 in another. The Irish state does attach a high value to little fingers (up to €50,000 each); however the additional 32 years seems excessive.

OK, judiciary are under the law, I don't think there's any dispute there. The basic law however, the constitution, grants them exclusive dominion over criminal justice. It insulates them from popular pressure by giving them security of tenure, the idea being justice shouldn't be administered by mob rule, that the people's role with regard to justice is by having the elected legislature create the law and the democratically accountable government appoint the judges. Judges are independent in their exercise of office and are not accountable to the people, this is to ensure the rule of law. We have justice under the law and not mob rule in this country.


The legislature in enacting a kidnapping statute has given discretion to the judiciary to set the tariff for kidnapping at up to and including life imprisonment. The judiciary set the tariff at 40 years in this case.

Read Article 25.1

Yes:

As soon as any Bill, other than a Bill expressed to be a Bill containing a proposal for the amendment of this Constitution, shall have been passed or deemed to have been passed by both Houses of the Oireachtas, the Taoiseach shall present it to the President for his signature and for promulgation by him as a law in accordance with the provisions of this Article.

So, what? President shall promuglate a bill passed by oireachtas, I don't really see the point.

Look at the actions of the branches of government and you will see that the judiciary are subordinate to the legislature. In practise the Legislature is subordinate to the executive. However the Judiciary are not subordinate to the executive in paractise.

Look at actions, you see the executive governing, the parliament creating law and holding executive to account, and the courts administering justice and ensuring constitutionality of the actions of the other branches of government. 3 separate but co-equal things.


Article 6 establishes the classic De montisque (not sure of spelling) form of government with 3 equal but separate branches. The Courts established by article 34 have sole right to administer justice and decide the constitutionality of any law ("justice shall be administered in courts established by law")

The constitution is the fundamental law of the state as such all references to Article 26 are moot.

This does not make sense, Article 26 is part of the constitution therefore is equally vaild as any other part of the constitution.

dermot_sheehan

aidjtk wrote:

As a law student

Good for you

once a sentence has been passed it is up to the executive to free a person and no judge can release a person after a sentence has been given except where a hapeus Corpus application and only then on humanitarian grounds

Eh, half right. The executive has the right to pardon or parole someone after conviction yes. The judiciary can only release if there's something legally wrong with the conviction. A habeas Corpus petition is to examine the lawfullness of a detention however and does not have anything to do with humanitarian grounds. Back to the books I think.

A sentence of 40 years is not ad hoc law the judge must follow legislative guidelines.

First part yes, but we don't have legislative sentencing guidelines in this country, we only have the maximum (and in some cases minimum) punishment set for a crime by statute.

presidential pardon is a power given by the constitution and has nothing to do with the GFA. it has been used infrequently.Used by nickie kelly and noel and marie murray got there sentence reduced to 40 years. A crime must be have been commited and if no crime has been commited no pardon.

Correct here, bear in mind though o'hare has been paroled not pardoned. Also Noel and Anne Murray had their convictions for capital murder substituted by the Supreme Court for convictions of murder as the Supreme Court held that it was a necessary ingredient of the offence of capital murder that the perpretrator knew that the deceased was a garda. Their death sentences were not remitted by the executive, rather it was found by the judiciary that their capital convictions were unsound and convictions for murder entered into instead.

dessie o hare got 40 years. this however would never have been done and fourty years would never have been served in full. the minister for justice decides when a person should be freed and this is often done before full sentence is served.

Well parole board recommends to minister, exceptions of course for convictions for capital murder or treason

any person who is released early with usually be released on parole and will have to present himself at a garda station every month and will enter a bond to keep the peace

Depends on the terms and the conditions of the parole.

the judiciary is not subordinate to any of the other parts of government. they exist on parallel lines on a system of checks and balances(hence the power of the judiciary to state law as unconstitutional under article 26)

Perfectly Correct

joebhoy1916

aidjtk wrote:

CRIMINAL JUSTICE ACT, 1960
Criminal Justice (Temporary Release of Prisoners) Act 2003
CRIMINAL JUSTICE (RELEASE OF PRISONERS) ACT, 1998
all state that the minister is responcible for early release
parole often ends up in the courts because the minister won't do his job

No point aidjtk some people just wont listen.

And as far as im aware (the Temporary Release of Prisoners
though i thought it was in 2001) was brought in just so
Dessie O Hare could be released.

hullaballoo wrote:

To be honest, I've always doubted the legality of releasing prisoners under the Good Friday agreement. ?

What makes you doubt this?

aidjtk

glad to see everyone sees my points
o hare wasn't released hes on parole which is dealt with by the parole board not the courts.
New acts probably are made so O hare could be released.
with regard to GFA again I have to stress what I said earlier they didn't exactly define republicanism so it has been left to the courts to interpret it on a case by case basis

hullaballoo

joebhoy1916 wrote:

No point aidjtk some people just wont listen.

Listen to what? You didn't actually found your argument using any law, you just gave what was your opinion. I might have been off the mark, but at least I backed up what I was saying with some legal bases.

What makes you doubt this?

Why are you asking me to answer a question that I answered 39 posts ago? I would say that it's unconstitutional.

joebhoy1916

hullaballoo wrote:

Listen to what? You didn't actually found your argument using any law, you just gave what was your opinion.

Its not my opinion, the GFA which clearly states all
prisoners must be released either republican or loyalist,
it is the law of the land.

Eru

joebhoy1916 wrote:

Its not my opinion, the GFA which clearly states all
prisoners must be released either republican or loyalist,
it is the law of the land.

Only if they commited a scheduled offence, kidnapping and assault are not scheduled offences therefore a vital ingredient is missing. I stated this very early on.

By your selective quoting of the GFA it means a paedophile qualifies and he certainly does not.

joebhoy1916

Karlitosway1978 wrote:

Only if they commited a scheduled offence, kidnapping and assault are not scheduled offences therefore a vital ingredient is missing. I stated this very early on.

Yes but the high court awarded them prisoner status under
the GFA so they would have to be released (i think).

The facts are quite straightforward, The Good Friday Agreement covers all IRA prisoners imprisoned for incidents, which occurred before April 10th 1998, regardless of the jurisdiction they were or are jailed in.

Why are the killers of Detective Garda Jerry McCabe
still in jail?

dermot_sheehan

joebhoy1916 wrote:

Karlitosway1978 wrote:

Only if they commited a scheduled offence, kidnapping and assault are not scheduled offences therefore a vital ingredient is missing. I stated this very early on.

Yes but the high court awarded them prisoner status under
the GFA so they would have to be released (i think).

The facts are quite straightforward, The Good Friday Agreement covers all IRA prisoners imprisoned for incidents, which occurred before April 10th 1998, regardless of the jurisdiction they were or are jailed in.

Why are the killers of Detective Garda Jerry McCabe
still in jail?

As far as I know the High Court didn't order him released, the parole board recommended he be granted parole and that was accepted. I understand a case was taken several years ago, (I'll find it if I have time), in which the High court said it was effectively up to the discretion of the government since international agreements are not part of the law of the state unless enacted by the oireachtas.


In anyway, as far as I know O'Hare wasn't part of the IRA at all, he was on his own, then joined the INLA while in Port Laoise.

Eru

joebhoy1916 wrote:

Yes but the high court awarded them prisoner status under
the GFA so they would have to be released (i think).

The facts are quite straightforward, The Good Friday Agreement covers all IRA prisoners imprisoned for incidents, which occurred before April 10th 1998, regardless of the jurisdiction they were or are jailed in.

Why are the killers of Detective Garda Jerry McCabe
still in jail?

1. No the high court did not

2. ONLY IF THE OFFENCE COMMITED WAS A SCHEDULED OFFENCE OR SIMILAR.

3. He was not in the IRA.

4. Because they were convicted AFTER the good friday agreement and the GFA only applies to those already found guilty and serving sentences PRIOR to its implementation.

What part of point 2 do you not get? Its clearly in the GFA along with point 4.
Try reading the whole thing instead of accepting Provo hype as you clearly do not understand the document or have not actually read it yourself.

joebhoy1916

Karlitosway1978 wrote:

1. No the high court did not

Are you saying the high court didnt rule he was a prisoner who qualified for release under the terms of the Good Friday Agreement?

dermot_sheehan

joebhoy1916 wrote:

Karlitosway1978 wrote:

1. No the high court did not

Are you saying the high court didnt rule he was a prisoner who qualified for release under the terms of the Good Friday Agreement?

High Court in O'Neil v. Governor of Castlereagh [2003] IEHC 83 (27 March 2003) stated that minister for justice is under no obligation to release prisoners, the release is at his discretion.

joebhoy1916

Sorry thought he was on about O Hare.

Name
Charge
Sentence
Kevin Walsh
Manslaughter 14 Years

Pearse McCauley
Manslaughter
14 Years

Jerry Sheehy
Manslaughter
12 Years

Michael O'Neill
Manslaughter
11 Years






Pearse McCauley is from Strabane, all the rest are from county Limerick.

John Quinn has been released on completion of his sentence.

Since the Good Friday Agreement was signed a total of 429 prisoners have been released in the North and 45 have been released in the South. This includes people convicted of incidents that happened after the Adare robbery. The four Adare men are the only prisoners convicted in relation to the incidents which happened before the signing of the Good Friday Agreement.

The Dublin Government

The Dublin government, through both Bertie Ahern and John O'Donoghue are on public record as stating that these four men will not benefit from the releases agreed in the Good Friday Agreement. They have never argued that they are not IRA prisoners, only that they do not come under the terms of the Agreement. Mary Harney stated in the run-up to the general election that the PDs would not be part of any government that released the men. The appointment of a Progressive Democrat Minister for Justice in Michael McDowell holds little hope of any real progress.

The reasons put forward by Dublin as to why the men will not be released have changed since the signing of the Agreement. In response to a letter from the Alliance Party in the Six Counties four years ago John O'Donoghue wrote to them stating that the release of the men was impossible as it might jeopardise the referendum on the Agreement.

They have continued to alter their explanations and their claims as time has passed. Their refusal to implement the Agreement has widespread repercussions. How can the Dublin government call on anyone to commit to the Peace Process when they refuse to implement the Agreement they signed up to and the Irish people voted for?

Myths and Facts

A number of myths, propagated by the media, establishment politicians and the Gardaí have been circulated about the men's cases and their conditions.

Myth
The IRA has denied involvement in the attempted robbery in Adare.

Fact
While the IRA at first disclaimed knowledge of the operation this position was reversed a week afterwards following an initial inquiry. All five men were accepted and treated as IRA prisoners while in Portlaoise prison and they were moved to Castlerea as part of the IRA unit. They continue to be seen as IRA prisoners by the Dublin government and the prison authorities.

Myth
The IRA was on ceasefire at the time.

Fact
The first IRA ceasefire ended in February 1996 and the second was called in July 1997. The Adare robbery occurred on the 7th of June 1996. The Good Friday Agreement was agreed in April 1998.

Myth
During negotiations the Dublin government told Sinn Féin negotiators that the 'Prisoners' section of the Agreement would not include anyone ever charged for the Adare robbery.

Fact
Dublin stated they would have difficulties if any of the men were sentenced, but Sinn Féin's position was that the Agreement must include all prisoners and no such exclusion was inserted in the final Agreement.

Myth
The men are convicted murderers.

Fact
None of the men were convicted of murder. Four were convicted of manslaughter, which is the unlawful and unintentional killing of a person. It means there was no intention to kill and the State and the Court accepted this.

The Good Friday Agreement

The 'Prisoners' section of the Good Friday Agreement states:

Both Governments will put in place mechanisms to provide for an accelerated programme for the release of prisoners, including transferred prisoners, convicted of scheduled offences in Northern Ireland or, in the case of those sentenced outside Northern Ireland, similar offences (referred to hereafter as qualifying prisoners). Any such arrangements will protect the rights of individual prisoners under national and international law.

Prisoners affiliated to organisations which have not established or are not maintaining a complete and unequivocal ceasefire will not benefit from the arrangements. The situation in this regard will be kept under review.

Both Governments will complete a review process within a fixed time frame and set prospective release dates for all qualifying prisoners. The review process would provide for the advance of the release dates of qualifying prisoners while allowing account to be taken of the seriousness of the offences for which the person was convicted and the need to protect the community. In addition, the intention would be that should the circumstances allow it, any qualifying prisoners who remained in custody two years after the commencement of the scheme would be released at that point.

The Governments will seek to enact the appropriate legislation to give effect to these arrangements by the end of June 1998.
This represents the sections of the Good Friday Agreement dealing with prisoner releases.

A number of points can be made in relations to this.

a) The definition of a 'qualifying prisoners' is very clear - someone convicted of 'scheduled offences' in the North and 'similar offences' elsewhere. The Adare case falls into this category.

b) The only clause that sets out who does not qualify for early release is in paragraph two which states that the only people who will not benefit are those affiliated to organisations that are not on cessation. As the IRA have maintained a cessation since July 1997, and the Agreement was signed in April 1998, the Castlerea Four clearly come under the terms of the Agreement. They are not excluded by any clause in the Agreement.

The Sinn Féin Position

Sinn Féin's position on this issue has been clear and unambiguous from the beginning. Shortly after the signing of the Good Friday Agreement, Sinn Féin MLA Gerry Kelly said:

"There have been a number of inaccurate and misleading claims and media reports in recent days, namely that it was made clear to Sinn Féin during the Good Friday negotiations that the prisoners who were to go on trial for the killing of Garda Jerry McCabe would not benefit from the early release programme. This is not the case.

The facts are quite straightforward, The Good Friday Agreement covers all IRA prisoners imprisoned for incidents, which occurred before April 10th 1998, regardless of the jurisdiction they were or are jailed in.

Sinn Féin did raise the case of these prisoners, along with others. The Dublin government's representatives said that if these men were sentenced their early release would cause difficulties but we insisted there could be no exceptions.

The absence of any clause in the Good Friday Agreement excluding these particular prisoners is proof of how the negotiations closed.

I am very conscious of the pain of this for the McCabe family. Just as I am conscious of the pain for families in the North watching the release of prisoners here. The Castlerea prisoners are not prisoners apart. They qualify under the terms of the Good Friday Agreement and they should be released."

Sinn Féin has continued to raise this issue with the government and call for the release of the men. Speaking at the Annual General Meeting of Coiste na n-Iarchimí, newly elected Sinn Féin TD Martin Ferris, himself a former prisoner stated:

"It is also fitting at a gathering like this to remember those who remain in prison. Today we send solidarity greetings to those who remain in prison. Especially those in Castlerea prison who are qualifying prisoners and who should be released immediately. Their continued imprisonment is contrary to the Good Friday Agreement. That agreement meant difficult decisions for many people. It is time for the Dublin government to face up to that and release these men."

hullaballoo

I can see this getting locked very soon.