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 and has contested the conviction at every opportunity over many years. The only evidence used to convict Mr McKevitt came from David Rupert a self-confessed fraudster and M15/FBI paid informant. Now it appears that Mr McKevitt’s constitutional rights were breached in 2001 as a result of a flawed warrant which has since been declared unconstitutional.
On Tuesday 16t.h October 2012, the lawyers for Mr. McKevitt applied to the Court of Criminal Appeal (CCA) for a hearing to have his conviction quashed under 52(1) of the Criminal Procedures Act, 1993. In the application McKevitt claimed 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 which resulted in “a miscarriage of justice” against him.
In the application Mr McKevitt’s lawyers outlined a serious “procedural deficiency” which amounted to a newly discovered fact that wasn’t known to Mr McKevitt’s defence lawyers in 2003 during his trial. 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. Subsequently, the State objected to McKevitts appeal hearing and countered the application by stating that the appeal was nothing more than an abuse of process.
On 22nd February 2013 a preliminary hearing took place at the Court of Criminal Appeal in Dublin. The hearing was to decide if Mr McKevitt was entitled to a full hearing even though there was a clear procedural deficiency in the States case against him. The media reporting on the preliminary hearing was almost non-existent even though Mr McKevitt was in attendance.
In April 2013 the Court of Criminal Appeal court found that Mr McKevitt had no argument and his application for a full hearing was rejected. Relatively vague in content the grounds for rejection by the Court leaves many questions unanswered.
The most peculiar aspect of the Courts findings is that although McKevitt’s constitutional rights have clearly been breached the time span penalises him from receiving a full hearing. The findings of the Court was far from convincing. Evidently there are numerous counter arguments to the Courts findings. One of the most significant being, upon a judge taking the oath of office he/she swears to uphold the constitutional rights of all citizens, there is nothing to suggest that time span can be an issue. On that issue alone, the judges in McKevitt’s appeal may have erred. One wonders if this case had been taken by anyone other than Mr McKevitt would the result have been the same? PvP The Supreme Court Unreported p.st July 2001… Constitutional considerations: “it would be in the most exceptional circumstances that the Supreme Court would consider whether a final judgment or order should be rescinded or varied. Such a jurisdiction is dictated by the necessity of justice. A case will only be reopened where through no fault of the party he or she has been subject to a constitutional breach’.
According to Mr McKevitt’s lawyers there is very strong evidence that the section 29 warrant used in his case falls within the category of being unconstitutional. However, the Court of Appeal say that the time span impeded the applicant from pursuing the matter further. The lawyers say that time span should not be an obstacle in constitutional law. After the Court returned with its finding in April 2013, the negative media reporting swung into action. Immediately the negative Court response became worthy of both national and international comment to the point where US based Fox news and ABC news giants felt obliged to comment on the outcome of the Appeal Court decision.
There can be little doubt that any Irish citizen subjected to an alleged constitutional breach is entitled to a hearing to clearly establish whether there has been a constitutional breach or not and in this particular case there appears to have been one. Few would disagree that time should not be an impediment in this or any other constitutional case regardless of who it may be. It should be remembered that if the warrant in Mr McKevitts is defective it means that he has been convicted on the word of a paid informed with the use of a defective warrant, certainly not a good for Irish law.
There is every likelihood that Mr McKevitt will appeal to the Supreme Court where he could very well succeed with an appeal, he may eventually show that his constitutional rights were breached and his conviction was in fact “a miscarriage of justice” but he will have spent a long time imprisoned.
Posted on 25 Apr 2013