Owing to the inadequate disclosure of required documents in Michael’s Dublin case, a number of disclosure hearings took place in the Special Criminal Court. In one disclosure hearing in 2001 disclosure was denied due to the premature nature of the disclosure application. Significantly one of the presiding judges was O’Donovan J. who later took part in Michael’s appeal. This same judge took part in a number of the preliminary hearings prior to the trial.
One major impediment Michael faced in seeking disclosure, pointed out by the Irish Courts, was that the Court didn’t have jurisdiction to compel agencies outside the state (MI5/FBI) to disclose any of their files.
However, the same court had no difficulty in accepting evidence from a witness supplied by these agencies. Equally, it was accepted that both agencies conspired with Gardai in framing an Irish citizen, yet it was unacceptable
for an Irish citizen to access vital information withheld by these agencies that would enable him to prepare a proper defence. This resulted in an unfair disadvantage to Michael’s defence team.
Michael also requested disclosure from the Irish authorities. One disclosure document which he sought was the document that detailed who exactly was responsible for authorising the external agencies to operate within the Irish jurisdiction. This request was refused on National Security grounds. Bernadette confronted Irish Taoiseach Bertie Ahern (recorded by television crews) whilst he was electioneering in Portlaoise town. She asked him if he or the government were aware that MI5 were operating within the Irish jurisdiction. He denied he or the government had any knowledge of MI5 working within Irish jurisdiction. If this is true, one must ask the question was the arrest and subsequent conviction of Michael McKevitt on the evidence of an MI5 agent lawful?
There is no doubt that the non disclosure of vital documentation created an unfair situation from the outset and resulted in Michael’s defence team being handicapped in preparing and properly structuring a preferred defence case in a meaningful way. They were met with obstacle after obstacle, consequently only one result could emerge from such a trial.
Throughout the pre trial hearings and the trial itself, in an attempt to deflect from the non disclosure of vital documents, the prosecution pointed to the disclosure of thousands of other documents. However, from a logical point of view the quantity of disclosure documents is of little relevance, what is relevant is the quality of the disclosure. In Michael’s case the argument could be made that the documents disclosed were misleading in content. Many of the documents disclosed were heavily edited; others were completely blanked out rendering them useless.
Although the Defence did receive thousands of documents by way of disclosure on various dates between 2001 and 2003, they also received documents while the trial was in progress. There was no logical reason why these documents weren’t disclosed from the outset. All claims of privilege were fully accepted by the trial court without being scrutinised by the judges.
Over two thousand e-mail reports supposedly between Rupert and his handlers were disclosed as contemporaneous notes but were not submitted as evidence. During the trial it was discovered that many of them were cut and pasted by someone somewhere before being disclosed to the defence. The prosecution were fully aware that the e-mails wouldn’t stand up to scrutiny and that is why they were not submitted as evidence.
Many of the disclosed MI5 documents described Mr Rupert as being financially motivated with a criminal past and some described him as a liar. Other MI5 reports outlined where Rupert described himself to his MI5 handler as a “whore” and a “mercenary” who would do anything for money. One document described where Rupert pointed out to his handler “tell me what to do make it worth my while and as long as the money is right I’ll do it to the best of my ability…” Another report refers to Rupert saying to his handler that “he may have to perjure himself…” However during Rupert’s cross-examination he described the reports as inaccurate, incredibly his evidence was accepted by the court.
Prior to Michael’s trial his eldest son Stephen who was helping him with the case was arrested and all the documents relating to the case including the book of evidence were seized by the ERU. The same police officers involved in Michael’s arrest were also involved in Stephen’s arrest. He was held for two days and offered inducements to give information against Michael whilst in custody. He was released after two days. This is recorded and complaints were sent to the state prosecutor’s office. Not all of the documents taken at the time of the arrest were returned.
In June 2003 just before the trial was about to get under way the Defence were informed by the DPP (Irish prosecution) that Mr Rupert had given interviews to a number of journalists in the US from as early as 2001. The journalists were ghost writing a book for Rupert from which he secured $1 million as an initial payment. This detail was conceded during his cross-examination and it was confirmed that the package was solely dependent on a guilty verdict. The Defence were also informed that all statements and other disclosed documents to be used at the trial were made available to the journalists by Rupert between 2001 and 2003. The trial court seemed to accept this development and indicated this in their judgment by stating that Rupert needed the money as insurance in case the FBI money dried up.
Initially disclosure of the journalists’ interview tapes were refused on the grounds of privilege. When this was highlighted to the Irish Court they pointed out that they didn’t have jurisdiction to order disclosure. However, as the trial got under way in Dublin the defence lawyers went to the US courts seeking disclosure of Rupert’s interview notes and tape recordings. The US courts had no hesitation in ordering disclosure in the interest of fair trial.
Details of this US court decision available. This was a landmark ruling in the US and is also available on the web.
These developments confirmed that the FBI withheld relevant documentation and would also suggest that they were withholding disclosure documentation. The information on the book deal was available to the FBI when they gave evidence to the disclosure hearing in October 2002. This information was obviously withheld from the Irish court and Michael’s legal representatives. The Irish courts ignored this issue and didn’t even query why this information was withheld by the FBI agents during the four day disclosure hearing.
After the US courts ordered the disclosure of the interview tapes, the FBI and MI5 informed the Irish prosecution that they would be editing the journalists’ taped interviews before disclosing them to the defence on the grounds of national security. Eventually the edited taped interviews were disclosed and were found to be of poor quality with many parts inaudible. It was astounding that the journalists had possession of the unedited versions of the interviews yet the defence were denied the same on national security grounds. Much of the detail contained in the interviews between Rupert and the journalists conflicted with Rupert’s statement of proposed evidence and some of his evidence to the court. Interestingly, Rupert also informed the journalists that the only reason the Dublin trial was taking place was to bolster the civil case in Belfast.
Other details emerged which included an alleged arrest for white slavery, which Rupert had forgot to mention in his statement of proposed evidence. Rupert told the journalists that he and another truck driver had picked up two young run-away teenage girls and had drove around for a number of weeks crossing state lines before “off loading” one of the girls. He claimed his colleague who had slept with the other fifteen year old girl intended to take her home to keep as a “puppy dog”! When asked by the Defence why he had failed to mention this arrest, he said he was not arrested! He agreed he had been stopped by the police, handcuffed and taken to the police station and questioned, however he said he did not view this as an arrest. He claimed in America things were done differently! This explanation was accepted by the Irish court.
All of this information should have been made available earlier and there can be no doubt that it was deliberately withheld until the very last minute. The defence had no knowledge of its existence until the trial had begun and were not in a position to examine or have examined the tapes or their contents in a timely manner.
Throughout the trial the non-jury Special Criminal court was packed with FBI agents and members of the Irish National Security Unit. In addition, a backroom of the court was given over to members of MI5 to use.
Whenever the court was asked to enforce the defence request for further disclosure documents it would refuse such an order on the grounds that it did not have the jurisdiction. In addition, it accepted assurances from senior members of the Gardai that all the relevant documents they possessed where already given over. This proved to be untrue at a later stage in the trial. Despite the obstacles placed in the defence way the trial continued.
Rupert was crossed examined for just over a week. During that time his responses were limited and at times contradicted his earlier testimony. He used “I don’t recall” over 1000 times!
During cross-examination Rupert revealed that the British Security Services (MI5) trained him over the previous few years and coached him in the lead up to the trial. During cross-examination he admitted that he was coached on ‘court etiquette’. Throughout the trial it was abundantly clear that he was directed, influenced and financed, primarily by MI5 and also by the FBI. Undeniably on Rupert’s own evidence he was career informant since 1974 and was financially motivated throughout his adult life. However, the wider sections of the print media ignored it. One would have thought that the blatant abuse of the law would leave a considerable sense of unease amongst those who profess to value the independence of the rule of law in Ireland, however in relation to Michael’s case their silence has been deafening.
After Rupert left the box, a number of Gardai from the National Surveillance Unit gave evidence that they had observed Rupert and others including Michael enter a house in Oakland park, a local authority housing estate in Dundalk. They stated they had remained there until Rupert and Michael left. The purpose of their evidence was to corroborate Rupert’s evidence. However, each of the three gardai contradicted each other, Rupert and their own original statements during their evidence in chief! When cross examined it was confirmed that they did not make their original statements, which incidentally were identical, until a year after the alleged meeting took place and a month after Michael’s arrest.
It transpired during the cross examination of a senior member of the unit that there were no written contemporaneous notes of the alleged incident. Instead he explained that he had stood in an adjoining laneway, recording his observations onto a Dictaphone tape, whilst at the same time he was in radio contact with the other members of the team receiving their observations and recording them onto the tape also. He also claimed that he left his location to follow Rupert by car to another location twenty minutes away yet still made it back to the original location in time to take up his position and record his observations and the observations of the other unit members as Michael left the house. He confirmed there was no photographic evidence as they didn’t have a camera that could take photographs in the dark! He appeared to be embarrassed when the defence produced copies of photographs of the same street taken at night by a photographer employed by them.
Incidentally another member of the team stated that he had observed the comings and goings of Rupert and Michael while hiding behind a curtain in a van parked in a lay-by in the street where his view was further hindered by a wall and a tree yet he claimed he could see clearly. He also admitted to having no watch or pen or paper to record accurately his observations. Bear in mind these were members of the elite national surveillance unit who according to them had prior knowledge of the meeting taking place yet came unprepared.
When the senior member was asked if the original tapes could be produced to the court he claimed the tapes had been wiped after he had transferred the information onto a personal organiser. When asked if the personal organiser could be produced he said it broke after he had transferred the information onto a computer in Garda headquarters. He stated that it was from this computer containing the surveillance log that the members of the unit made their identical statements a year later.
This surveillance log had been withheld from the Defence team despite the numerous requests for relevant disclosure documents over the previous two years. The prosecution claimed they were unaware of its existence. Yet, the gradai when asked by the defence to produce it were able to furnish the defence with an edited copy approximately an hour later.
The surveillance log consisted of two pages that contained the surveillance observations of that week including the night in question.
The entries of the Oakland Park observations were short and did not correspond with the elaborate detail given by the gardai in the court. Furthermore they were disjointed and not in sequence with the rest of the log. Michael’s solicitor James MacGuill studied the other details contained in the week’s log and found what was clearly alibi evidence for Michael. The document placed Michael in the front room of his home at the time when Rupert stated he had met him at an IRA Army Council meeting on the 17th February 2000. It also contradicted Rupert’s evidence in Chief were he said he had been picked up from McKevitt’s house and driven to the meeting house by Michael’s son Stephen. The surveillance report did not record Rupert anywhere near McKevitt’s home that evening. Furthermore, it logged Stephen McKevitt driving alone in a southern part of the county at the same time Rupert had claimed he had taken him to a house north of Dundalk.
The defence team protested to the court that this relevant document should have been disclosed. They questioned what else was being withheld. They stated they could no longer provide a proper defence for Michael as their strategy had been irreparably damaged. They moved for the trial to be stopped. The court refused and ordered that the trial should proceed. The defence called for the court to dismiss itself, as it had not ordered an investigation into the circumstances surrounding the withholding of this document to determine if in fact there were sinister reasons behind the nondisclosure. This was refused also.
After consulting with his legal team, Michael found he had no option but to dismiss his legal team and withdraw from the case. He addressed the court detailing his reasons for withdrawing citing the proceedings as nothing other than a ‘show trial’. He stated he was told by a senior Garda at the time of his arrest that the decision to frame him was a political one. He stated that he was withdrawing from the ‘show trial’ with his dignity intact.
The trial continued in the absence of the defence and the defendant. Michael remained in his cell beneath the court refusing any requests from the court to attend. At one point the court ordered that he be taken before the court. A number of guards tried to forcibly drag Michael up the stairs into the dock. However Judge Johnston realising the spectacle unfolding halted the course of action ordering that Michael should not be harmed and that if he chose to remain in the cell that was his choice.
The remaining prosecution witnesses were hurriedly dealt with without any challenge to them. In the lengthy judgement at the conclusion of the six-week trial, the court said they were impressed with the performance in the witness box of David Rupert, the chief prosecution witness. Mr Justice Johnson presiding said that the court was satisfied that Rupert had a considerable knowledge of the republican movement. However during his evidence Rupert didn’t say anything, which would indicate that he was an expert on Irish Republicanism, on the contrary anything, which emerged in his evidence, is freely available in the public domain, and would be common knowledge by anyone even loosely associated with Irish Republicans since 1992 as Rupert was.
The court was particularly struck by the witness’s ability to recall on day 4 and day 19 of the trial, the seating arrangements of the first meeting where he allegedly met McKevitt in the foyer of the Four Seasons Hotel in Monaghan. “Overall he had very considerable knowledge of the facts to which he testified”, the court found. However, the special non jury court didn’t check the layout of the Hotel. Nor were any witnesses put forward by the state to verify what Rupert had stated. In fact the Defence had employed an engineer who would have proven Rupert’s description of the Hotel Foyer was inaccurate. However, his evidence never was heard, like the other defence witnesses evidence because of Michael’s withdrawal from the trial. It was therefore the court’s duty in the absence of a defence to eliminate any doubts by seeking corroboration. Instead they accepted Rupert’s uncorroborated evidence.
At no time was it denied that Rupert was at the McKevitt home in Blackrock, in fact Michael’s defence lawyer Mr Hartnett S.C. during the cross-examination of Rupert did confirm that he was in contact with Michael’s wife. Michael’s wife Bernadette was due to give evidence to the court as a defence witness.
Given that Rupert was a ‘co-operating witness’ his evidence in court had the advantage of extensive and careful rehearsal with the MI5 and FBI intelligence agencies for almost 3 years before the trial. However, none of these issues mattered to the court and his performance certainly impressed Judge Johnston and his two colleagues O’Hagan and O’Reilly. On one hand the Special non jury court found that Rupert was “a very truthful witness”. This was in stark contrast to the opinion of the head of the Garda Crime and Security branch Dermot Jennings, who, in other circumstances, found him to be a “liar” and a “bullshitter”.(MI5 Disclosed documents)
As in previous super-grass trials in the North of Ireland the defence case hinged heavily on the prosecution witness’s credibility. Mr Rupert made no secret of being a serial bankrupt; these started in the early 70’s and continued through the 90’s he was also a tax cheat. Rupert acknowledged to his home-town newspaper that he had a reputation as a crook, thief and fraudster. It was also revealed that he became a police informant in New York in 1974, when he was investigated for cheque fraud. He gave evidence before a grand jury there about drug deals he had set up with detectives. Subsequently the cheque fraud charges were dismissed as a result of his actions as an informant at that time.
In MI5 documents disclosed to the defence a Garda report said the only information/intelligence he gave them came from newspapers and that his information was low-level and unreliable. By 1993, the Garda Crime and Security Branch tipped off the FBI on Rupert and reported that he had connections with Irish Republicans in the Bundoran area. However, although the FBI said that they only recruited him in 1994; it was established during the trial that Rupert had been working as an informant since 1974. This would suggest that the FBI had already been working Rupert in Ireland from earlier than they admitted to the Irish authorities. This meant that he was operating within the territory without the authority of the Irish.
The FBI agent-in-charge of the Irish terrorism section in Chicago in the early 90’s, Pat “Ed” Buckley, claimed that he recruited Rupert as an informer in 1994 a claim which was questionable and unconvincing due to the fact that Rupert admitted that he had been an informant in the 70’s. Agent Buckley is well known amongst the Irish Republican community in the Chicago area. He is described by many of those who know him as a corrupt agent.
In another case Buckley attempted to stitch up a family named Fogarty in Chicago however the case subsequently collapsed as a result of fraudulently obtained evidence.
In the early 90’s Rupert was under Federal investigation for wire fraud but no charges were brought. Around that time many of his employees were questioned by the FBI about the fraud allegations, however, Rupert claimed in his evidence that he knew nothing about the FBI investigation and had only heard about it in the late 90’s. Not surprisingly the Special non jury court accepted this claim from Rupert as being truthful.
FBI documents disclosed to the defence revealed that in the mid 90’s, his handler agent Buckley arranged for Rupert to fly to London to meet with MI5 agents. According to Rupert he was trained by MI5 in 1997 and begun working for them as an informant in the North of Ireland. He was also coached in court etiquette by a consultancy firm hired by MI5.
Other documents provided to the defence team show that, even at that early stage of his involvement with MI5, they were preparing him for an eventual appearance as a court witness. Initially MI5 paid Rupert £10,000, but said this was “compensation and reimbursement” – an important legal phrase. Subsequently, Rupert got an agreement for pro rata payments and bonuses etc; from MI5, which doubled his take from the FBI.
Throughout the short period of his involvement with the Irish authorities Rupert’s Garda Special Branch handler Dermot Jennings had an extremely poor opinion of him, until he emerged as the secret weapon which might secure the conviction of an Irish Republican. The Garda documents disclosed to the defence didn’t reveal anything of meetings between Rupert and his handler Jennings; however, MI5 documents obtained by the defence team as a result of discovery orders uncovered these Garda opinions of Rupert. One MI5 document in particular reported “The Garda view was summed up by Det Chief Superintendent Dermot Jennings of the Garda Crime and Security Branch (CSB) who described Rupert to MI5 officers as a “bullshitter” and “a liar”.
As chief of the CSB (formerly C3) at Garda HQ, Dermot Jennings was the working head of the Irish State Security apparatus throughout the 90’s. His opinion, therefore, expressed at a formal meeting (which it was never expected would be made public) with senior MI5 officers in London, at which he was accompanied by Det Supt Peter Kirwan, might reasonably be regarded as convincing by any Irish court. It was not, since Jennings, in statements made to the prosecution denied all such assertions revealed in the MI5 documents and described them as being misquotes etc; this was how Jennings explained away these comments and said that they were taken out of context or that they were never said in the first place. Another MI5 document revealed where Jennings prompted the MI5 agent to “remove” sections from the reports to avoid Rupert being exposed to the Irish courts as an unreliable witness. These documents were brought to the attention of the Special non jury Court in October 2002.
One MI5 briefing note states” In June 1999, DCS Dermot Jennings of An Garda Siochána, who had not met Rupert since 1996, expressed his personal opinions about Rupert, which were not favourable. He expressed doubts about Rupert’s judgement, and Jennings stated that Rupert had falsely suggested that Jennings had not paid him all the money he was entitled to”. (The rest of the document was obliterated.)
Another MI5 document marked “Secret” and labelled “Telegram to Washington 14 June 1999” states: “I spoke to Dermot Jennings privately on 11 June about Rupert … (the rest of the long paragraph is edited). Paragraph 2 reads: “Jennings seemed embarrassed at the mention of Rupert’s name and took a little time to gather his thoughts, but at no time was he cross or disappointed … but was evidently surprised … (When) he had composed himself he made a number of disobliging comments about Rupert rehearsing some of what is already on file and Rupert’s threat to expose his agent role through his lawyer if he did not receive certain payments; the fact that his wife was conscious and that he told her everything; Rupert’s overblown sense of his own importance and the value of his information; and the fuss – Jennings used the word “lies” – over payments made or not made by Jennings.”
An MI5 file note dated September 15 2000, records a conversation between the MI5 section head in London and Rupert’s agent handler. The report, giving an account of the handler’s meetings with Rupert in Chicago, is largely edited. However, one key section reads: “The subsequent meeting between (handler) and Rupert went very well. Rupert was confident, sensible and related much about his earlier criminal and smuggling background.” These allegations were put to Rupert during cross-examination; he denied the allegations and said that the handler must have made errors during his reporting.
The court judgement summarised Rupert’s business experience in the following words: “He clearly had a very chequered business career and operated close to the edge in many matters.”
Michael McKevitt Justice Campaign