In December 2006, Michael McKevitt was informed that a hesitant Mr Justice Morgan had recommended that he should be granted limited legal aid to make submissions outlining his defence in the Omagh bomb civil litigation. The limited legal aid was restricted to preparing and drafting submissions on three points only (1) in the matter of the evidence of David Rupert (2) in the matter of being sued in the representative capacity and (3) in the matter of issues arising out of the Sean Hoey case.
On 20th December 2006, Mr Justice Morgan directed the Court service in Belfast to inform Mr McKevitt that he acknowledged points outlined in a letter to him dated 14th November 2006. The letter, one of many sent by Mr McKevitt to Mr Justice Morgan outlined that the evidence against him contained in Rupert’s e-mails was fabricated. The letter also pointed out that Michael McKevitt would be contesting the entitlement of the plaintiffs to sue him in a representative capacity on behalf of the (R)IRA. Issues were also raised in the letter into aspects of the trial in Belfast of Mr Sean Hoey. Over the previous two years Mr McKevitt continually pointed out in his letters to Mr Justice Morgan that as a result of the denial of legal aid to him his fair trial rights at common law was being breached.
For over two years, although Mr Justice Morgan refused to acknowledge the letters, Mr McKevitt continued sending them, highlighting the breach of his rights on each occasion. Eventually Mr Justice Morgan relented, and reluctantly made the recommendation to grant legal aid but in limited form only. Although the gesture by Mr Justice Morgan was a smokescreen to disguise the inequality in the civil case, Mr McKevitt has succeeded in prising open the door in his search for equality of arms in the civil case. However, the substantive issues surrounding full legal representation to allow McKevitt defend himself is far from resolved. The attempt by Mr Justice Morgan to make a gesture to create the delusion of fairness in the case hasn’t gone unnoticed by McKevitt.
Because of Mr McKevitt’s sheer persistence to date, he has partially succeeded in overturning what earlier seemed to be an almost impossible stance taken by Mr Justice Morgan and the Legal Services Commission in Belfast. It seems as though the Judge has been forced to do a u-turn, even though it is only slight movement at this point in time. This no doubt was due to the continual highlighting of the unfairness of Michael McKevitt’s case in correspondence directly to Mr Justice Morgan. As far as granting equality and fairness for the defendants in this case is concerned, Mr Justice Morgan has a long way to go.
The British state realise too well that if they relent and grant McKevitt full legal aid to defend the case they will face exposure into the involvement of their agents in the bombing of Omagh.
In August 2001 the civil writ was served on Mr McKevitt at Portlaoise prison in a blaze of publicity in which one of the plaintiff’s Mr Michael Gallagher participated. On that occasion, Mr Gallagher informed the accompanying media that this was an opportunity for the men to clear their names. From the outset and to the surprise of many including the plaintiff’s Mr McKevitt made it known that he would defence the litigation vigorously. On 12th August 2002 a legal aid certificated was granted to him to contest the civil action. Realising that the civil case would be contested Gallagher soon changed his stance and opposed the granting of legal aid to the defendants.
From the outset, the plaintiffs funded the civil proceedings by accepting substantial private donations from members of the British establishment. However, over time, the exorbitant costs demanded by the H20 legal firm who represents the families soon eroded and the plaintiffs were forced to seek additional funding to continue with the litigation. After their unsuccessful campaign for extra funding their legal representatives intimated that, the British state should subsidise the civil action.
In December 2003 before the British state directly intervened, the Legal Services Commission in Belfast were instructed to inform Michael McKevitt that his legal aid certificate was being withdrawn as a result of his conviction in Dublin’s non jury Special Criminal Court. This was the beginning of many ongoing attempts to force Mr McKevitt out of the civil case in anticipation that he would not contest the decision and the civil case would proceed without any defendants present.
A judicial review of the decision to revoke McKevitt’s legal aid proved unsuccessful before Mr Justice Garvin in 2004. However, Mr McKevitt continued in his quest to secure the legal aid to defend himself in the civil case but his options were limited. The British state continually slammed door after door in an attempt to deny him the right to defend himself. At times, it appeared hopeless; however, McKevitt wasn’t for backing down and with limited resources from his prison cell in Portlaoise he continually demanded to have justice, equality and to defend the civil case.
In February 2004 the Lord Chancellor (Lord Falconer) made an unprecedented decision and directed the Legal Services Commission in Belfast to make substantial payments (£742,702 plus vat) to the plaintiff’s which enabled them to continue with the civil claim. Michael McKevitt challenged by way of judicial review the Lord Chancellors directive to the Legal Services Commission on the grounds that the directive was unlawful in that it exceeded the power conferred upon the Lord Chancellor by the Access to Justice [Northern Ireland] Order 2003. The Access to Justice Order states that the Lord Chancellor should not involve himself or his office in any decision as to the funding of individual cases. The Order was very clear but obviously not to Lord Falconer.
The Belfast High Court accepted the legal argument by McKevitt and declared the directive unlawful. This decision by the Belfast court was a major embarrassment to the Lord Chancellor.
Although McKevitt was successful with the legal argument against the British state, he realised that it was not the end of the matter.
In late 2005, the British Government changed the law and directed that the finances be made available to the Omagh families to proceed with the civil case whilst at the same time denying Michael McKevitt and the other defendants’ legal assistance to defend themselves. The events surrounding the civil case are a blatant abuse of the rights of the defendants to get a fair hearing.
By subsidising the Omagh families civil action in such a manner the British government is attempting to prosecute Michael McKevitt and the others using a lower civil standard of proof [on the balance of probabilities] than would be necessary in criminal proceedings [beyond reasonable doubt].
Over the past three years under Mr Justice Morgan the one sided preliminary hearings have continued and preparations for the civil case have been ongoing with an input from the plaintiffs only.
The sole evidence against Michael McKevitt is that of informer David Rupert. However, on this occasion his evidence is conditional on whether he is to face cross-examination or not. Mr Rupert received an assurance that as Mr McKevitt will have no legal representation he will not face a rigorous cross-examination and he will have a free run to give whatever evidence he wishes. The assurances given to Rupert may ring hollow and it is possible that the issue of legal aid will be resolved in McKevitt’s favour, no other conclusion could be reached in the interest of fairness. Under renewed circumstances, Mr Rupert may not be as enthusiastic to face cross-examination by McKevitt’s legal team.
Posted on 13 Mar 2007