The McKevitt case has been dogged by issues of disclosure since its
The decision of Mr Michael McKevitt to dismiss his legal team was prompted by a series of decisions by the Special Criminal Court and other courts that led him to believe his ability to mount a defence was prejudiced by the non-disclosure of documents. The disclosure to the defence of documentary evidence in the possession of the prosecution is a fundamental principle of criminal law.
The dismissal of the legal team was prompted by the refusal yesterday of the Special Criminal Court to halt the trial. This had been sought by lawyers for the defence on the basis that documents relating to the evidence of a key prosecution witness, Mr David Rupert, an FBI agent, were not disclosed to the defence until 22 days into the trial.
However, this was only the last in a series of disputes between prosecution and defence over the issue of disclosure of documents.
From his first appearances in the Special Criminal Court over two years ago, lawyers for Mr McKevitt have been seeking documents relating to Garda surveillance records and also material from the British security services and the FBI relating to Mr Rupert and their dealings with him.
In April last year the case was adjourned because documentation sought from the British and US authorities had only arrived and needed to be assessed by the prosecution before being handed to the defence.
When the case opened last October, Mr Hugh Hartnett SC, defending, sought the disclosure of a number of documents, both from foreign security services and from the Garda.
During the four-day hearing, he read a number of affidavits from Mr McKevitt's solicitor, Mr James McGuill, concerning the need for disclosure of all documents relating to Mr Rupert and the responding affidavits.
The court also heard affidavits from the British ambassador, Sir Ivor Roberts, and from FBI officials, who also gave oral evidence explaining their claims of privilege and the need to edit the documents. Det Chief Supt Martin Callinan said in an affidavit that the prosecution had produced all the documents in its possession.
Mr Hartnett sought further disclosure of documents, but this order was refused by the Special Criminal Court, with its president, Mr Justice Johnson, pointing out that it had no power to compel foreign security services to disclose documents.
He also said the court accepted the claim of privilege in the public interest made by the Garda relating to documents in its possession and the assurances of the prosecution that all relevant documents had been disclosed.
The defence then took judicial review proceedings on this issue to the High Court. The High Court turned down its application, with Mr Justice O'Neill saying it had established no arguable case for it in law.
The defence appealed this decision to the Supreme Court, where again it was refused. The Chief Justice, Mr Justice Keane, said the decision had been made within the jurisdiction of the Special Criminal Court, and it should not be interfered with.
The trial then went ahead, with Mr Rupert spending 15 days in the witness box. His evidence in the book of evidence included the claim that he had attended meetings of the "Real IRA" Army Council with Mr McKevitt on February 17th, 2000. The defence then received a Garda surveillance report on Mr McKevitt that put him at home on that date. In his verbal evidence during the trial, Mr Rupert gave the date of the meeting as February 18th.
Mr Hartnett applied for the case to be halted on the grounds that this document, which he said could have resulted in "a complete reappraisal of the case", was not disclosed until Mr Rupert had ceased giving his evidence. The case was now "irreparably damaged", he said.
Mr George Birmingham SC, prosecuting, said it was open to the defence to recall Mr Rupert.
The case will now continue without the participation of lawyers for Mr McKevitt and without any active participation from him. It will be up to the three-judge court, presided over by Mr Justice Johnson, to challenge prosecution claims and guarantee Mr McKevitt's right to a fair trial.
The trial has a long way to go before any decision is reached by the court on whether Mr McKevitt is guilty of the charges of directing terrorism and membership of the "Real IRA".
If he is found guilty, there is likely to be an appeal to the Court of Criminal Appeal and perhaps, ultimately, to the European Court of Human Rights. If this happens, the whole issue of the disclosure of documents will be aired again.
