The Court of Appeal has quashed the convictions of Conan Murphy and Philip McKevitt for possession of an explosive substance but ordered that both men face a retrial.
The pair had been convicted in the Special Criminal Court following a trial which ran from November 2011 until February 2012. Each received eight-and-a-half years' imprisonment on 9 March 2012 and both were later admitted to bail.
Their appeals raised numerous issues concerning the Garda operation, including entry to premises, arrest and detention, the nature of the alleged explosive material and whether the indictment properly stated the offence. McKevitt also alleged that Gardaí assaulted him during the operation.
However, the Court of Appeal held that one issue was decisive. During the trial, both appellants had challenged evidence obtained under a search warrant issued by Superintendent Keane under section 29 of the Offences Against the State Act. They argued that the officer issuing the warrant was not sufficiently independent.
On 23 February 2012, while the Special Criminal Court was deliberating, the Supreme Court delivered its decision in the Damache case, fundamentally changing the legal position on such warrants. Lawyers for Murphy and McKevitt immediately asked the trial court to suspend its deliberations and hear submissions on the new ruling.
The Special Criminal Court refused and delivered its judgment the following day.
Mr Justice Birmingham, delivering the Court of Appeal judgment, said the parties should have been allowed to address the changed legal position and that the evidence would probably have needed to be reopened. A trial conducted according to law required that opportunity.
The convictions were therefore quashed. The court rejected arguments against a retrial, stressing the extreme seriousness of the alleged bomb-making activity and the public interest in having guilt or innocence determined afresh. It deliberately left most of the remaining appeal grounds unresolved because the evidence and legal arguments at the new trial could differ.