The Court of Criminal Appeal has refused an application by Michael McKevitt to certify two questions for determination by the Supreme Court, finding that neither statutory requirement for certification was met.
The questions concerned whether the Supreme Court’s 2012 decision in DPP v Damache could count as a “newly discovered fact” under section 2 of the Criminal Procedure Act 1993, and whether a convicted person had to challenge an unconstitutional statutory provision before conviction to rely on a later ruling obtained by another litigant.
The application followed an earlier decision in which the Court of Criminal Appeal had found McKevitt’s claim of a miscarriage of justice to be without merit. The claim related to evidence from a search of his home under a warrant issued by a Garda superintendent involved in the investigation and prosecution. In Damache, the Supreme Court held that section 29 of the Offences against the State Act 1939 was unconstitutional because it did not require the superintendent issuing a warrant to be independent of the investigation.
The court said the constitutionality of section 29 had not been challenged at McKevitt’s 2003 trial or in judicial review proceedings. It noted that the law at the time, as stated in a 2007 Court of Criminal Appeal decision, allowed a superintendent in charge of an investigation to issue such a warrant. The court also relied on the principle stated in A v Governor of Arbour Hill Prison: a final criminal decision generally remains lawful despite a later ruling that a statute was unconstitutional, where the accused did not challenge the statute before the case reached finality. The judgment noted a possible exception for cases involving fundamental unfairness amounting to a denial of justice.
The court said Damache could not be treated as a newly discovered fact and that, even if it could, that would not assist McKevitt. It also concluded that the questions would not affect the outcome of a pending case, and therefore did not warrant Supreme Court determination in the interests of justice or raise an issue of exceptional public importance.
The court refused the certification application. The judgment concerns certification of questions for the Supreme Court; it does not set out a new determination of the underlying conviction.