Published Tuesday, 06 August 2013
The mortars were seized on the Letterkenny Road in March. (© Pacemaker)
On Tuesday, a High Court judge refused to hear a planned appeal against Gary McDaid being freed from custody because of a failure to properly comply with notification requirements.
McDaid, 38, from Glenowen Park, Derry, was arrested with a co-accused after police stopped a motorbike and a van containing primed mortars on the city's Letterkenny Road in March.
Both men are charged with having explosives with intent to endanger life, conspiracy to cause an explosion and possessing a van for terrorist purposes.
McDaid was granted bail at Londonderry's Magistrates' Court on Monday amid claims that he is being held in Guantanamo Bay-like conditions at HMP Maghaberry.
He has been in isolated confinement and went on a so-called dirty protest to avoid alleged harassment and intimidation from other inmates.
His lawyer said he has developed a glaucomic condition caused by not seeing natural light for 130 days.
A psychologist's report was also obtained in relation to post traumatic stress disorder.
Following the deputy district judge's decision to grant bail the prosecution confirmed their intention to appeal to the High Court.
Although notification was given within the required two-hour time limit, an issue arose over whether it had been properly served on McDaid and then the court clerk.
Defence barrister Dessie Hutton argued that the breach of Magistrates' Court Rules meant there was no jurisdiction to hear the appeal.
"What's at issue here is the veracity of the process and the ability of the process to withstand scrutiny," he stressed.
Counsel for the prosecution accepted notification had been defective but claimed this was "not fatal" to hearing the appeal.
However, Mr Justice Weatherup held there had been non-compliance with the relevant rules.
As McDaid's mother Ann listened in the public gallery, the judge said: "I consider that strict requirements must be imposed in relation to the treatment of such an appeal.
"Written notices must be given in a particular form, manner and time, and I interpret the scheme to require mandatory requirements in relation to those conditions."
He added: "I conclude that this appeal is deemed to have been disposed of when the notice in the proper form was not served on the clerk of the court yesterday.
"Accordingly I do not need to hear the appeal because there is no appeal and the prisoner is to be released."
Under the terms of McDaid's bail a cash surety of £25,000 and the deeds to a house are to be lodged in court.
He must live at his mother's home, surrender his passport and cannot leave the jurisdiction.
Electronic monitoring and night-time curfew conditions were also imposed.
A further ban was put on him attending any demonstrations or gatherings linked to dissident republicanism.
Outside the court McDaid's solicitor, Ciaran Shiels of Madden and Finucane, said: "The Public Prosection Service failed to follow the rules set down for users of the Magistrates' Court.
"It was an appeal against a properly made grant of bail which should never have been brought and only added more stress to the applicant and his family."
© UTV News