The Supreme Court dismissed Michael McKevitt’s appeal against his conviction for directing the activities of an organisation styling itself the Irish Republican Army, which was subject to a suppression order. The judgment, delivered by Mr Justice Geoghegan on 30 July 2008, also answered in the affirmative a certified question about prosecution disclosure of documents held by overseas agencies.
The appeal followed the Court of Criminal Appeal’s refusal of leave to appeal from the Special Criminal Court’s decision. The Supreme Court considered three main issues: disclosure, the trial court’s assessment of prosecution witness David Rupert, and the late disclosure of a Garda surveillance report. It concluded that the Court of Criminal Appeal had not erred in law in rejecting the appeal grounds.
On disclosure, the judgment said the Special Criminal Court could not compel the FBI or British Security Service to disclose material. It found that Irish authorities had made reasonable efforts to explain Irish disclosure rules to the agencies and obtain relevant documents. The Supreme Court agreed with the lower appeal court that a good-faith effort, alongside consideration of whether the agencies’ response left a real risk of an unfair trial, was an appropriate approach where the agencies were outside the court’s jurisdiction. The certified question asked whether disclosure obligations were fulfilled where the court was satisfied that reasonable good-faith efforts had been made and the overseas parties had cooperated at a high level.
The judgment noted that 2,300 pages of emails and documents had been disclosed. It also said the defence had objected to the trial court inspecting some unredacted material, and that the court had offered to recall Rupert for further cross-examination after the surveillance report was disclosed. The offer was declined. The Supreme Court found no unfairness from the late disclosure.
On Rupert’s credibility, the Supreme Court said the Special Criminal Court had been entitled to believe him. It pointed to the extensive cross-examination and the trial court’s assessment of his evidence, including matters it regarded as corroborative. The judgment said an appellate court could interfere only if it was not rationally open to the trial court to accept his evidence.
The court also rejected arguments about a British Security Service document referring to “trickinesses” in paperwork and a document attributed to “witness ‘C’”. It concluded that neither issue made the trial unfair or rendered the conviction unsafe. The appeal was dismissed.