DPP v Michael McKevitt

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 30 July 2008
• Neutral Citation: [2008] IESC 51
• Date: 30 July 2008
• Court: Supreme Court
• Docket Number: [S.C. No. 467 of

DPP v McKevitt

IN THE MATTER OF SECTION 29 OF

THE COURTS OF JUSTICE ACT, 1924

BETWEEN/

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

Respondent

and

MICHAEL McKEVITT

Appellant

[2008] IESC 51

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

Record No. 467/2006

THE SUPREME COURT

COURTS OF JUSTICE ACT 1924 S29

CRIMINAL JUSTICE ACT 2007 S59

DPP v SPECIAL CRIMINAL COURT 1999 1 IR 60

R v WARD 1993 1 WLR 619

Z v DPP 1994 2 IR 476

OFFENCES AGAINST THE STATE ACT 1939 S30

1 JUDGMENT of Mr. Justice Geoghegan delivered the 30th day of July 2008

Introduction

2 This is an appeal to the Supreme Court under section 29 of the Courts of Justice Act, 1924 from a decision of the Court of Criminal Appeal (Kearns J., O'Donovan J. and O'Sullivan J.) refusing leave to the above-named appellant, Michael McKevitt, to appeal from a decision of the Special Criminal Court (Johnson J., Judge O'Hagan and Judge Reilly) convicting him of the offence of directing the activities of an organisation styling itself the Irish Republican Army in respect of which organisation a suppression order had been made.

3 There are some unusual features of the case. First of all, it was apparently the first ever prosecution of that offence. Secondly, to an overwhelming extent the prosecution depended on the evidence of an American in the pay of the F.B.I. and the British Security Service whose life history displayed a somewhat questionable reputation.

4 I will be dealing with the issues in more detail in due course but one serious problem arose for the defence which underlies the entire case. Having regard to what I have already indicated, there was clearly a major credibility issue in relation to the evidence of the American, Mr. Rupert. If he had been an Irish national in, say, the pay of the Garda Síochána, disclosure of all documentation relating to his character might legitimately have been required to be produced even if it did not feature in the book of evidence. If there was insufficient disclosure in that situation, an Irish court could deal with it. It can make appropriate orders enforceable against the Director of Public Prosecutions. Orders of that kind could not, of course, be made against agencies such as the F.B.I. or the British Security Service. Both the trial court and the Court of Criminal Appeal applied what seem to me to have been just and common sense principles in dealing with this problem, in so far as there was a problem, but as there was no clear Irish authority relating to it, the Court of Criminal Appeal thought fit to issue a Section 29 Certificate. That certificate reads as follows:

"Where the pivotal issue is the credibility of a witness and there is documentary evidence relevant to his credibility in the possession of parties out of the jurisdiction, are the obligations of disclosure by the prosecution in a criminal trial fulfilled when in respect of such disclosure the court is satisfied that all reasonable good faith efforts have been made to secure such documentation and that a high level of co-operation has been given by such parties in response to such efforts?"

Issues

5 The issue of that certificate enabled this appeal to be brought. It is not uncommon in that situation for an appellant to include grounds of appeal in his notice of appeal which do not relate to the certified point. But what is unusual about this case is that the certified point itself never really formed a serious ground of appeal. This right to argue different grounds has now been greatly restricted by section 59 of the Criminal Justice Act, 2007. If ever there was a case which illustrated the wisdom of the Oireachtas in enacting that new provision, this is it.

6 There are no fewer than 34 grounds of appeal in the notice of appeal before this court. This seems to me to go well beyond the reduced appeal which was argued in the Court of Criminal Appeal and is referred to at page 3 of the unreported judgment of that court, delivered the 9 ^th December 2005 by Kearns J. The relevant paragraph reads as follows:

"While some 42 grounds of appeal were advanced in the Notice of Appeal, counsel for the appellant helpfully indicated to the court at the outset that the various grounds of appeal could effectively be considered under three main headings as follows:"

(a) Alleged failure by the prosecution to ensure adequate disclosure.

(b) The Special Criminal Court should not have found that David Rupert was a credible witness whose evidence could be safely relied upon.

(c) There was prejudice and unfairness to the appellant in the course of the trial arising from late disclosure of a garda surveillance report relating to events on 17 February 2000."

7 In relation to the offence of directing the unlawful organisation, I do not propose to deal with any ground of appeal that does not fall within those parameters. In relation to a second offence on the original indictment of membership of an illegal organisation, the appeal before the Court of Criminal Appeal was effectively abandoned except for an argument that the two counts should have been severed and a separate trial directed in respect of each.

8 To some extent, the notice of appeal in this case is at any rate technically defective. At its commencement it correctly states that the appeal is from the whole of the judgment of the Court of Criminal Appeal, though it wrongly speaks of the judgment having been "certified". However, from then on, the grounds of appeal are all drafted as though the Court of Criminal Appeal had not existed or had not dealt with the case. Each ground of appeal is in the form of a direct criticism of "the Court of Trial". This court can only deal with grounds which were argued before the Court of Criminal Appeal and in respect of which it is suggested that the Court of Criminal Appeal in its decision was wrong in law.

9 The correct approach to this appeal would seem to be to adopt the three headings identified by Kearns J. and referred to above and in respect of each of them deal with the question of whether the Court of Criminal appeal was wrong in law in dismissing those grounds.

Disclosure

10 I will start, therefore, with the issue of disclosure. As counsel for the appellant had pointed out in their written submissions this issue is essentially dealt with in grounds 1, 2 and 3 in the notice of appeal. Before going into any detail, it is, in my view, necessary to clarify one aspect of the law in this regard. Counsel for the appellant seemed to be adopting the approach that if in some way the trial court's approach to issues relating to disclosure was legally defective a conviction should be quashed and the appeal allowed. I do not believe that that approach is correct. A trial court at a pre-trial stage or even when an issue arises during a trial is concerned with the question of whether there is a real risk of an unfair trial. An appellate court, however, must view the matter somewhat differently. It must consider whether having regard to the alleged non-disclosure there was in fact a degree of unfairness which rendered the conviction unsafe using that expression in a general sense. It is, therefore, no longer a question of a risk for the future rather it is a question of looking at what in fact has happened and assessing whether there has been an unsafe conviction having regard only to an alleged unfairness of trial. This would seem to me to be so quite independently of the so called proviso.

11 The distinction is especially relevant to the procedural issues of whether there should have been a schedule identifying all documents "in its power, possession or procurement" and to use the wording of the written submissions of the appellant, "potentially relevant to assisting the applicant's defence or to undermining the prosecution case". The appellants are effectively suggesting that there should be a system on the criminal side identical to discovery on the civil side. In two different decisions, this court has already made clear, not only that the rules of civil discovery do not apply to criminal cases but that there are good reasons why that should be so, a primary one being that unlike in a civil case where the issues are known to both parties having regard to the pleadings which normally must be closed before discovery, in a criminal case the prosecution does not know in advance (subject to a few statutory exceptions) the defence issues. The catalyst for the complaint in this particular case was the late disclosure in the course of the trial of notes of garda surveillance of the appellant's residence on the 17 ^th February, 2000. The prosecution had assumed and it would seem had reasonably assumed that it would not be disputed that the appellant knew Mr. Rupert but rather it would be suggested that their association was innocent. In the event, the cross-examination of Mr. Rupert took the form that the appellant had never met him and did not know him. This was despite the fact that the prosecution had photographic evidence of Mr. Rupert and the appellant entering a house separately and then leaving it together and the sighting of them together in the company of their wives. Once it emerged that that was the line of defence, the surveillance documentation was disclosed. This seemed to the Special Criminal Court and to the Court of Criminal Appeal reasonable and not seriously prejudicial to the accused. I agree. But more importantly, there was an offer by the trial court to have Mr. Rupert recalled for further cross-examination. That was declined.

12 Leaving aside for the moment the added problems of foreign disclosure, even on the ordinary rules of domestic disclosure there...