On Tuesday 16th October 2012 lawyers for Michael McKevitt applied to the Court of Criminal Appeal (CCA) for a hearing to have his conviction quashed under Section 2(1) of the Criminal Procedures Act, 1993. In 2003 Mr McKevitt was convicted of membership and directing the activities of an unlawful organisation namely the IRA, McKevitt pleaded not guilty to the offences. In October 2012 his lawyers told the court that the original 2003 trial was flawed due to “procedural deficiency” which may amount to a newly discovered fact.
McKevitt claims that as a result of the Supreme Court ruling in the Damache v DPP (2012) the search of his home, his arrest, detention, trial and subsequent conviction was tainted by a constitutional breach that may have resulted in a “miscarriage of justice”. The Supreme Court decision (Damache v DPP  IESC 12, s29(1) of the said Act was declared to be repugnant to the constitution. The Supreme Court also stated that all previous searches carried out under the power had therefore been unlawful and all entries onto dwellings by Gardai on foot of the said power had been trespass.
The subsequent media reporting on the new McKevitt appeal, outlined both misleading and inaccurate details of the latest appeal lodged. Such begrudging and disingenuous reporting is common in the McKevitt case over the past decade or more. As for this latest appeal, regardless of what it may entail, it is long past time for some unbiased, accurate and independent reporting in the case. There is a duty on all journalists and their respective outlets to report accurately, be independent and without favour. Failing to maintain the high standards required could only lead us down a road where we would become part of the lie usually witnessed from puppets of a corrupt and dictatorial regime. In his 2003 trial the primary evidence against McKevitt was that of FBI and MI5 informant, David Rupert, a self-confessed fraudster and career criminal, who was paid between 2 and 5 million US dollars to give evidence against him. In his judgement, Mr Justice Richard Johnston acknowledged that Mr Rupert was a shady character with a “chequered past” but he accepted his evidence to convict McKevitt and sentenced him to 20 years. During the trial evidence was adduced by the prosecution of material allegedly found during a search of McKevitt’s home in March 2001.
The prosecution maintained that the material found, corroborated the assertion by Rupert that he knew Mr McKevitt and that he had been in his company. The Court stated that while Rupert’s evidence had to be treated with “caution”, the “material found” corroborated his evidence. Mr McKevitt’s home was searched on foot of a (s29) warrant issued by a Det. Chief Superintendent Peter Maguire under Section 29 (1) of the Offences Against the State Act 1939. Mr Maguire confirmed in evidence to the trial court that prior to the arrest he had been involved in the investigation into the activities of Mr McKevitt and had signed the (s29) warrant. Subsequently, and as a result of the Damache v DPP – Supreme Court ruling (2012) the s29 warrant issued by Mr Maguire was unlawful because (on his own admission) he was not independent. It places the entry and search of Mr McKevitt’s home on the 28th March 2001 as unconstitutional and his subsequent arrest as unlawful. All material generated from the search of the home and the detention were inadmissible on that basis and evidently there has been a miscarriage of justice in relation to the conviction. In his application Mr McKevitt claims his original trial may have been tainted by the admission of inadmissible evidence arising out of the Damache ruling (2012) and this would be tantamount to a “newly discovered fact” as outlined in the appeal application.
Throughout the McKevitt trial in 2003 it was generally agreed by many legal observers (both domestic and foreign) that the trial was tainted by bad law. At the conclusion of the trial one independent Senior Counsel described proceedings as follows, “…This was far from the finest hour of our judicial system. The circumstances of this verdict by a jury-less court where the essential principles of our legal system have been fundamentally altered are no cause for acclaim…” Although his trial took place almost 10 years ago, McKevitt was incarcerated from March 2001, which means he has been imprisoned now for almost 12 years. The “newly discovered fact” in the latest appeal application refers to evidence uncovered in 2012 (Damache v DPP) which on the face of it can only be described as something “new” that wasn’t available at the time of the trail.
The application by Mr McKevitt should certainly get a hearing in the appeal court to establish whether there was a breach of his rights or not. Anything less would be grossly unfair and has the potential to be a further breach of his rights. In the event that a constitutional breach did take place against Mr McKevitt in 2003, it is essential that the State quash the conviction and call for a new trial without delay, regardless of how long ago or how aggrieved they may feel about it. In every trial, the law should be applied equally to every citizen that has the misfortune to appear before the courts, irrespective of time span or their political persuasion. Justice must be seen to be done and done in a fair and transparent way, anything less is a fundamental human rights breach and cannot be condoned in any way.