Published Wednesday, 06 May 2009
Lawyers for Colin Duffy claimed the current wording of the guarantee offered by the Northern Ireland Prison Service was unacceptable.
Duffy, 41, is charged with the double killing of Sappers Mark Quinsey and Patrick Azimkar outside an Army base in Antrim on March 7.
The soldiers were gunned down at the barracks gates as they collected pizzas from delivery men.
Duffy, from Lurgan, Co Armagh, is also being held on five counts of attempted murder and possession of arms and ammunition in connection with the Real IRA shootings.
He has delayed a High Court application for bail until he receives confirmation that no one is listening in on any legal consultations.
A resolution appeared to have been reached when the Prison Service indicated last week that the undertaking would be given.
However, in a new twist a two-judge panel headed by Lord Chief Justice Sir Brian Kerr was told on Wednesday that the assurance offered was not satisfactory.
In its communication the Prison Service said that until appropriate steps are taken to remedy defects identified in the monitoring regime "no such surveillance will be authorised under the Regulation of Investigatory Powers Act 2000".
Sir Brian, who made clear he did not want a "synthetic dispute" wasting valuable court time, asked why it was necessary to provide a qualified assurance involving a reference to the RIPA regulations.
"If it is the position that it's not intended there be any surveillance of Mr Duffy's interviews... if that is what is contended why not say so and be done with it?" he asked.
Barrister Peter Coll, for the Prison Service, replied: "That's the assurance provided in the context of somewhat of a negotiation in getting this wording."
Mr Coll also accepted there was no other basis for carrying out bugging other than through RIPA.
The case has been adjourned to allow further instructions.