Judgment: 2013-04-19 · Court archive

Court strikes out McKevitt application to reopen convictions over search warrant ruling

The Court of Criminal Appeal ruled that a later decision on the constitutionality of search warrants could not support his long-finalised convictions under the statutory route he relied on.

Court of Criminal Appeal ·

Who, what, where, when and why

Who
  • Michael McKevitt (Applicant)
  • The Director of Public Prosecutions (Respondent)
  • David Rupert
  • Peter Maguire
What

The Court of Criminal Appeal ruled that a later decision on the constitutionality of search warrants could not support his long-finalised convictions under the statutory route he relied on.

Where

Places mentioned in the report

  • McKevitt’s house
When

Judgment:

Why

Reasons reported in the judgment

McKevitt had asked the court to quash convictions imposed by the Special Criminal Court in 2003. He argued that evidence used to corroborate prosecution witness David Rupert’s account had come from a search conducted under section 29 of the Offences Against the State Act 1939, a provision later held unconstitutional by the Supreme Court in Damache v Director of Public Prosecutions.

The Court of Criminal Appeal has struck out Michael McKevitt’s application to reopen his convictions, ruling that his case was unstateable and unarguable under section 2 of the Criminal Procedure Act 1993.

McKevitt had asked the court to quash convictions imposed by the Special Criminal Court in 2003. He argued that evidence used to corroborate prosecution witness David Rupert’s account had come from a search conducted under section 29 of the Offences Against the State Act 1939, a provision later held unconstitutional by the Supreme Court in Damache v Director of Public Prosecutions.

The search of McKevitt’s house yielded a computer, a guide book on Yugoslavia and photographs. The Special Criminal Court had treated these items as corroborating Rupert’s evidence that he had visited the house. The Court of Criminal Appeal recorded that the search warrant was issued by Detective Chief Superintendent Peter Maguire, who was involved in the investigation and prosecution. The warrant was admitted at trial without objection, and its validity was not challenged there.

The appeal court was deciding only whether the section 2 application could proceed or was bound to fail. It said section 2 concerns new or newly discovered facts. It held that the Supreme Court’s 2012 Damache judgment was a legal determination, not a newly discovered fact connected to evidence that could have been put before the trial court. The court also rejected the argument that the ruling could retrospectively reopen McKevitt’s convictions, which had been final for years. It distinguished cases where the warrant issue had been raised and proceedings were still pending when Damache was decided.

McKevitt’s counsel argued that the case was exceptional because he had discharged his legal team during trial. The court said that did not make the application arguable. It noted that the trial had proceeded under the law as it then stood and that the warrant’s constitutional validity had not been challenged at trial or in the earlier judicial review proceedings.

The court granted the Director of Public Prosecutions’ application and struck out McKevitt’s section 2 application. It did not retry the convictions or decide a fresh appeal on their merits. The judgment noted that McKevitt had a claim before the European Court of Human Rights, but said it was not suggested that this changed the position before it.

Read the original court judgment

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