Former Real IRA leader Michael McKevitt has failed to secure a fresh hearing of his appeal against his conviction for organising terrorist activities on grounds of an admitted factual error in last year’s Supreme Court decision refusing the appeal.
The Chief Justice Mr Justice John Murray said today the five-judge court considered McKevitt’s application “unmeritorious and opportunistic”.
No reasonable interpretation of the appeal judgment could lead to a conclusion it was affected in any way by incorrectly stating the prosecution had photographic evidence of Garda sightings of McKevitt in the company of the State’s key witness against him, FBI agent David Rupert, he said. The error had “nothing to do with any issue as to the guilt or innocence” of McKevitt.
In July 2008, the Supreme Court had dismissed the appeal by McKevitt (54), Beech Park, Blackrock, Co Louth, against his 2003 conviction and 20 year prison sentence. McKevitt had appealed on more than 30 grounds, including several grounds relating to the credibility of Mr Rupert.
McKevitt’s lawyers applied last December to re-open the case on grounds of an error of fact in the Supreme Court judgment involving the court repeating an incorrect assertion, originally made in written legal submissions for the DPP, the prosecution had photographic evidence of Mr Rupert and McKevitt entering a house separately and then leaving it together and the sighting of them together in the company of their wives.
Today, the Chief Justice said it was “absurd” to suggest the incorrect statement made the slightest difference to the outcome of the appeal.
It was important to note sightings by gardaí of McKevitt with Mr Rupert had occurred and there was evidence of those given at trial, he said. The error complained of was solely about the reference to photographic evidence of those sightings.
The DPP had conceded the reference to such photographic evidence in his written submissions for the appeal was erroneous and this was how the error found its way into the judgment, the Chief Justice said. It was quite normal for a judgment, especially in an appeal relating only to questions of law, to rely on or reflect summaries of facts not in dispute.
McKevitt’s solicitor wrote to the DPP’s solicitor before the appeal pointing out the error but, “most regrettably”, the DPP did not bring the error to the attention of the court. Neither had McKevitt’s side and, while it was primarily for the DPP to correct the error, the other side was not entitled to “remain passive”.
Such failures, he stressed, did not affect the issue whether the appeal should be re-opened. McKevitt was asking the court to set aside a final decision and the court could only do so in exceptional circumstances, including whether it was dictated by the necessity of justice.
In this case, the matter of photographs and sightings arose in connection with one ground of appeal - that the trial was unfair because of the prosecution’s late disclosure of notes of Garda surveillance of McKevitt’s home on February 17th, 2000.
The DPP had said the late disclosure was because he assumed there would be no dispute at trial McKevitt and Mr Rupert knew each other and the defence would instead argue their association was innocent. However, at trial, the defence contended McKevitt and Mr Rupert had never met and it was then the surveillance notes were disclosed.
The trial court, in a ruling upheld by the Supreme Court, found it was reasonable the prosecution would assume there would be no dispute McKevitt knew Mr Rupert, given evidence from gardaí of sightings of the two, and therefore the late disclosure of surveillance notes was reasonable and not seriously prejudicial to McKevitt.
The Chief Justice said the erroneous reference in the Supreme Court judgment to there being photographic evidence of such sightings could not make a material difference to those rulings. The issue was only about the timing of the disclosure of the surveillance material, not whether gardai actually made the sightings.
The real issue was whether late disclosure of the surveillance notes prejudiced McKevitt’s right to a fair trial and the Supreme Court had ruled it had not. The misstatement in the judgment about photographic evidence of sightings could not deemed material to that conclusion, he said.
