There can be no doubt that behind all the pronouncements of this court, and in my case, behind the arrest and today’s inquiry, there exists an extensive organization… And the purpose of this extensive organization, gentlemen? It consists of arresting innocent people and introducing senseless proceedings against them, which for the most part, as in my case, go nowhere. Given the senselessness of the whole affair, how could the bureaucracy avoid becoming entirely corrupt? – The Trial by Franz Kafka
Earlier this summer two High Court decisions [Ryan and Farrell] ruled that every prisoner in this state must be entitled to enhanced one-third remission if they meet three criteria:  that they are categorised as “enhanced” by the prison incentivised scheme;  that they are of good conduct; and  that they engage in 25 hours of “authorised structured activities” per week. These decisions were broadly welcomed by human rights organisations, as they brought the Irish penal system into line with most progressive European nations.
One of the successful applicants, Niall Farrell, was a republican prisoner detained on the same landing as Michael McKevitt in Portlaoise Prison. Michael subsequently applied for enhanced one-third remission in early July this year. Had Michael been awarded enhanced one-third remission he would have been released on July 26th 2014.
Towards the end of July the Minister for Justice procrastinated and refused to make a decision on Michael’s application. Consequently, Michael took his own Article 40 application, as his case stood on similar facts to Niall Farrell. Just hours before Michael’s Article 40 application was scheduled to commence in the High Court, 150 prison officers entered E-Block Portlaoise Prison and conducted a search of unprecedented intensity. Michael’s cell was the first cell searched.
Clearly the Irish Prison Service were hoping to find “contraband” in Michael’s cell. This would have scuppered his application for one-third remission because in that eventuality he would be no longer deemed to be of “good conduct” and would have failed to meet the criteria laid down by the High Court. However, nothing was found in Michael’s cell. The only items removed were his legal documents and other related items, which have yet to be returned. After the futile search, Michael was informed that the Minister had refused him enhanced remission. Later that afternoon new prison rules were introduced making it increasingly difficult for prisoners to attain enhanced remission.
After considerable legal debate, the High Court conceded that Michael’s application had to be heard under the old prison rules which were in existence when he applied for enhanced remission. Having overcome these blatant last minute obstructions and interferences by the state, Michael’s Article 40 application was heard by Justice Barton in the High Court. However, within days of the commencement of Michael’s application, a specially convened sitting of the Supreme Court overturned the Ryan judgement, stating that the correct mechanism by which to challenge a Minister’s refusal to grant enhanced remission was not an Article 40 application but rather a judicial review. Therefore, Michael’s Article 40 application was moot and he was forced to re-challenge the Minister for Justice’s refusal via judicial review.
The judicial review was scheduled to take place on October 8th 2014, however, on the morning of the hearing his legal team were informed that a High Court judge was not available to hear his judicial review. The President of the High Court informed Michael’s legal team to return to court on a daily basis. “Take your chances and see if a judge is available,” was his learned advice. This unacceptable state of affairs received some media attention. In order to avoid outright embarrassment the state eventually provided a judge the following day. The hearing concluded on October 9th. However, six weeks after the hearing, Michael still awaits judgement. And there is no sign of a decision on the horizon.
Michael’s family have been advised that if this delay extends beyond eight weeks they should instruct their legal team to return to court to remind the judge that the judicial review concerns Michael’s liberty and should be dealt with forthwith. Numerous human rights observers believe Michael is being imprisoned unlawfully and that he should have been released on July 26th this year.
They have also pointed out that although Michael’s recent application is a judicial review, it is within the realm of a constitutional Article 40 application, and thus should receive some precedence within the judicial review list, as it concerns his liberty. This latest legal saga is reminiscent of a Franz Kafka novel. Inconvenient judgements are overturned. Emergency Supreme Courts are specially convened. Legal rules shift at a whim. Legislators rewrite prison rules, effectively nullifying legislation enacted by previous legislators. Judges when required go into hiding quicker that Salman Rushdie under a Fatwa. A battalion of prison guards search one man’s cell, leaving with nothing other than his legal documents and their heads hanging in shame.
In the meantime, Michael McKevitt sits in his prison cell, unlawfully detained, thirteen years into a sentence that was handed down on the word of a paid MI5/FBI informer who operated illegally within the twenty-six counties with the full connivance of the Dublin government.