MICHAEL McKEVITT loses bid to certify legal questions

This report is a localnews.ie summary based on public court reporting and records; sources are listed below.

MICHAEL McKEVITT’s application to have two legal questions certified for determination by the Supreme Court was refused by the Court of Criminal Appeal on 20 May 2014.

The court comprised MacMenamin J., McGovern J. and Edwards J. MacMenamin J. delivered its judgment.

The application relied on the Supreme Court’s 2012 decision in DPP v Damache, which found section 29 of the Offences Against the State Act 1939 unconstitutional because it allowed garda superintendents involved in an investigation to issue search warrants. The warrant used to search McKevitt’s home had been issued by Detective Superintendent Peter Maguire, who was involved in his investigation and prosecution.

McKevitt contended that material found in his home should have been ruled inadmissible and that there had been a miscarriage of justice. He sought certification of whether a subsequent judgment could amount to a newly discovered fact under section 2 of the Criminal Procedure Act 1993, and whether an objection to an unconstitutional provision had to be raised before conviction to benefit from a later declaration.

The source records that the constitutionality of section 29 was not raised at his trial in 2003 or through judicial review proceedings. The circumstances of his application had been addressed in an earlier judgment delivered on 19 April 2013.

The court found his inadmissibility claim without merit and the proposed newly discovered fact question misconceived. It distinguished a declaration of unconstitutionality from its retrospective effect and found the proposed points were neither of exceptional public importance nor in the public interest.

The court said the case had been decided entirely years earlier, with no issues pending. Even treating Damache as a newly discovered fact would not assist McKevitt.