Judgment Title: D.P.P.-v- Michael McKevitt
Composition of Court: Kearns J., O'Donovan J., O'Sullivan J.
Judgment by: Kearns J.
Status of Judgment: Approved
Other (see notes)
The appellant was charged before the Special Criminal Court on two counts, namely:-
(a) Membership of an unlawful organisation styling itself the Irish Republican Army between the 29 August, 1999 and 28 March, 2001, contrary to s.21 of the Offences against The State Act, 1939, as amended by s.2(6) of the Criminal Law Act, 1976, and
(b) Directing the activities of an organisation styling itself the Irish Republican Army between the 29 August, 1999 and 23 October, 2000 in respect of which organisation a Suppression Order has been made under s.19 of the Offences against The State Act, 1939 contrary to s.6 of the Offences against The State (Amendment) Act, 1998.
After a trial lasting 27 days, the appellant was convicted by the Special Criminal Court on both counts on the indictment on 6 August, 2003. On 7 August, 2003, the appellant was sentenced to 6 years imprisonment on Count No.1 and to 20 years imprisonment on Count No.2, each sentence to run concurrently and to date from the date of the appellant’s arrest, namely, 29 March, 2001.
For a number of reasons, this was a criminal trial without precedent. The charge of directing the activities of an unlawful organisation was the first such charge to be brought within this jurisdiction by virtue of an amendment to the Offences Against the State Act, 1939, which had been introduced in the aftermath of the Omagh bombing. Secondly, the trial was one which required disclosure of documentation from overseas intelligence agencies in the US and the UK. This arose because the main evidence in the case was that of Mr. David Rupert, a US citizen from New York David Rupert initially came to Ireland in 1992 as a tourist with no Irish antecedents but in a relatively short time became interested in Irish republican affairs through his then partner, Linda Vaughan. This involvement was notified by the Irish police to the Federal Bureau of Investigation (FBI) who thereafter recruited David Rupert as an intelligence agent because of his perceived value in providing information about Irish Republican activities. The direct evidence of David Rupert commenced on the third day of the trial and concluded towards the end of the sixth day. David Rupert was then subjected to a cross-examination of virtually unprecedented length, which focused almost entirely on the witnesses’ credibility and which concluded on day twenty of the trial. That portion of the cross-examination which addressed David Rupert’s contacts with the appellant commenced only on day 19 of the trial, the cross-examination up to that point having focused entirely on David Rupert’s past history and associations, including those with the FBI and the British Security Service (BSS).
At the outset it may be said that the present appeal did not seek to impugn the propriety of the conviction of the appellant in respect of the offence of membership of an unlawful organisation. Other than a suggestion that the two counts should have been severed and a separate trial directed in respect of each, the entirety of the appeal was addressed to the conviction recorded against the appellant in respect of directing the activities of the Real IRA.
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.
The court proposes to deal firstly with these three main issues, then deal separately with the contention that the two counts in this case should have been severed
David Rupert is a US citizen from Potsdam in New York who by any standards is an unusual and remarkable individual. A man of 6’7” in height, he told the court that he was 51 years of age and four times married. His formal education ended in 1968 when he was 16 years of age, following which he worked in the construction industry and later in forestry and life-assurance. Following a brief period in the logging business, he then went into the trucking business.
In 1974 he was charged with criminal offences for writing bad cheques, but two charges which had been brought against him were dismissed. He filed for bankruptcy in 1974, though this bankruptcy process did not proceed to adjudication. He also became a police informer at that time and gathered information which subsequently led to drug prosecutions of certain individuals. He agreed in the course of his evidence that he had been arrested in 1976 in Alabama when a fellow- trucker with whom he was then working picked up an underage female hitchhiker. His fellow-trucker then had a sexual relationship with the girl for about a week. David Rupert was charged with no offence arising from this incident and was released after a brief period of questioning.
David Rupert confirmed he had further bankruptcy proceedings when his business ventures failed in 1984. They arose in the context of a house sale where he was paid in cash but where the purchaser moved in before the purchase monies were paid over. A local bank obtained a judgment against him in respect of an outstanding mortgage on the house and subsequently various assets of David Rupert were seized to pay off the judgment. David Rupert accepted in evidence that he had left various people “high and dry” at that time, following which he spent a year in Florida. During this period he explored the possibility of establishing an off-shore gambling operation in which questions would not be asked about the sources from which gamblers drew their funds. Various meetings were set up in Florida with potential investors to explore this possibility. In that context David Rupert agreed that he brought down from New York as a potential adviser a man called Skelsi whom he described as a “mob lieutenant”. This project went nowhere, because none of the proposed parties to the project had any money.
David Rupert accepted he had outstanding tax liabilities to the IRS in the US and other debts from that time which he was unable to pay off. He maintained however that he continued over the years to make returns to the IRS even when payments were in arrears. He also accepted that, with the passage of time, the penalties for non-payment meant his liability grew to such a degree that flight from the US was something he actually considered in 1992.
He developed a trucking operation business on his return from Florida in 1986, but was again involved in bankruptcy proceedings in 1992 when TAI, the corporate entity through which the business operated, sought Chapter 7 protection. These bankruptcy proceedings were commenced prior to a serious trucking accident in Kentucky which effectively brought the trucking business to an end at the end of December, 1992. The activities of the corporate entity TAI were investigated by the FBI for possible fraudulent trading but ultimately a declination to prosecute was taken by the FBI in 1995.
David Rupert first came to Ireland in early 1992 with his then girlfriend, Deborah Murphy. It was the first of about 25 visits. He was again back in Ireland in August 1992, this time with Linda Vaughan, who became his second wife, and who had a keen interest in Irish Republican affairs. She spoke at a hunger-strike commemoration ceremony in Bundoran on that visit, during which visit he met a number of prominent Republicans.
In the course of time these associations came to the attention of the gardaí who in turn contacted the FBI in the United States. In 1994, David Rupert received a visit in his office in the US from FBI Agent Patrick Buckley who invited David Rupert to provide information to the FBI in relation to his Republican contacts in Ireland. In late1994, Rupert agreed to provide such information on the basis the FBI would cover his expenses for travel to and from Ireland. It appears that the FBI section to which Buckley belonged was different from that which was involved in the inquiry into possible fraud in TAI.
On the occasions of visits to Ireland in 1994, David Rupert mainly associated with republicans in the Bundoran/Sligo area, including Joe O’Neill and Vincent Murray. As a result of these contacts, Rupert became involved in fundraising activities in North America, and also achieved a position of trust within Republican Sinn Fein to the extent that he was entrusted to carry sums in cash on behalf of that branch of the Republican movement.
In 1996 he sought and obtained assistance from the FBI to purchase a pub called the Drowes bar in Tullahane. The FBI provided $8,500 to enable him take the lease. However, having taken the lease and having traded for a few months he realised in October, 1996 that this business would not succeed and he returned to America.
He was placed under written contract by the FBI in February, 1997. He was offered $2,500 per month together with reasonable expenses for those months in respect of which he provided information. In June, 1997 he met representatives of the British Secret Security Services at Buckley’s request and developed contacts with that service also. He went on their payroll also.
From 1997 onwards David Rupert used encrypted e-mails to report to both the FBI and BSS.
He attended the Republican Sinn Fein Ard Fheis in both 1997 and 1998 and met a Michael Donnelly, whom he had met previously, at this latter Ard Fheis. According to David Rupert’s account, Donnelly was interested in a Republican grouping in the Dundalk area and arranged for Rupert to meet the appellant and certain other individuals in August, 1999.
David Rupert gave evidence that he met the appellant in the company of Michael Donnelly and other republicans Phil Kent and Seamus McGrane in the Four Seasons Hotel in Monaghan. He immediately hit it off with the appellant who asked him to approach Joe O’Neill to see if Republican Sinn Fein would become the political front for a new grouping called Oglaigh Na hÉireann. Rupert gave evidence that the appellant also wished to put him in contact with a “sleeper” who was located in Worcester in the United States.
David Rupert described how the Omagh bombing had been discussed at this particular meeting, that the appellant had stated it was a joint operation between the Real IRA and the Continuity IRA. David Rupert further told the court that at this meeting the appellant clearly acted and held himself out as leader of the Real IRA. He also gave evidence that the appellant was deferred to as such by the others present. The appellant told David Rupert that the command structure to which Rupert was to report was the appellant no.1, Liam Campbell no.2 and Bernadette Sands McKevitt, the appellant’s wife, no.3.
Following his return to America after this visit, Rupert attended various republican fundraising ventures. On subsequent visits to Ireland he would stay in the Carrickdale Hotel outside Dundalk. He visited the appellant’s house in Dundalk. He described how at one meeting in the appellant’s house, the appellant had spoken of his involvement in the Libyan arms deal and how the appellant informed him how upset he had been when Gadaffi gave details about the appellant to the British. He also described how the appellant stated he was hoping “to take the war to the steps of Stormont and to the financial district of the UK”. According to David Rupert, the appellant said that certain individuals wanted to shoot or assassinate policemen, but that the appellant told him that this would not be “a big enough event” and that the “first hit of the new organisation should be a spectacular that would overshadow Omagh”.
On another occasion in 1999, David Rupert stated that the appellant was present at an ‘engineers’ meeting to which he was driven by the appellant’s son, Stephen McKevitt, and where a discussion took place about bomb-making equipment, timers and laptop computers that could be used for bomb warnings. Rupert described how he sought and obtained permission to take notes so that he could remember items he might have to purchase in the US.
When he returned to Ireland in February, 2000, he brought a sum of money which had been collected at fundraisers in the US, together with some personal organisers he had been asked to purchase, which were apparently intended for bomb-making purposes, something Rupert in evidence claimed he had not realised at the time he received the request to acquire the items in question. During the visit of February 2000, David Rupert stated that he met the appellant more than once. One of these meetings was at his home. David Rupert also described attending his first Army Council meeting of the Real IRA at a house off the road to Greenore. He also described attending an engineers meeting of the Real IRA at a house at Oaklands Park in Dundalk at which the appellant was also present. His evidence of being present at that address with the appellant and others was heavily corroborated by the evidence of garda observers.
On day 5/p.57 David Rupert stated that any questions he had were always directed to the appellant “because he was in charge”.
David Rupert stated he was back in Ireland in June, 2000 and attended a 32 County Sovereignty AGM in the Carrickdale Hotel. He brought two laptop computers with him and $300 in cash. He believed the computers were to be used for coded warnings. David Rupert gave evidence that he was instructed by the appellant to establish an arms dump in the US (book 5/p.86) for onward transmission to Ireland. He was also given instructions that the “sleeper”, Mr. Smith, was to be relocated and some written details about Smith were given to Rupert by the appellant and exhibited and identified in evidence.
In July, 2000, Rupert obtained a revised contract from the FBI whereby his remuneration was raised to $4,500 per month.
His final visit to Ireland was in October 2000. On this occasion, David Rupert gave evidence that he brought a computer programme called “Rocket Simm” together with $6,300 which was all the money that had been collected from the Irish Freedom Committee. On this occasion he brought a computer for the appellant and installed it in his house in Blackrock outside Dundalk. While in the house he noticed a guidebook to Yugoslavia on the bookshelf.
On the occasion of his final visit in October 2000, David Rupert stated that he took a car journey with the appellant towards Omeath during the course of which he asserted that the appellant “speaking in the first person” told him of a bombing that had taken place which had killed 19 British soldiers some years previously and that the appellant went into details of how it was done. He also indicated, according to David Rupert, that Liam Campbell having been arrested would require to be replaced as head of the Army Council.
The question of David Rupert first testifying in the case arose in the late summer of 2000. He admitted he sought a large sum of money to secure his future and his wife’s future in the event of his co-operation as a witness in any court case. He ultimately signed a third contract with the FBI in January, 2001. This document was further amended in April, 2002. Identified as a “Witness Security and Relocation Plan”, it provided for payment to David Rupert of compensation by way of “lost wages” in the sum of $12,166 per month for as long as David Rupert’s security and safety so required, subject to a total of $450,000 unless an extension of the contract so provided. The amendment further provided for an indemnity for David Rupert in respect of any lawsuits arising from his co-operation with the FBI and for a flat monthly payment of $7,190 for 3 years to cover expenses.
In the year 2002, with some assistance from the FBI, David Rupert settled his outstanding tax affairs with the IRS whereby a debt of $700,000 was extinguished in exchange for a payment of $25,000. In this respect, David Rupert asserted that the figure had grown to the size it had because of severe penalties for delay in payment.
He also accepted he made a number of visits to the Cayman Islands over the years but denied he had hidden money there. He asserted these visits were for brief holidays.
He denied having admitted to smuggling offences in the past, but admitted that while in the trucking business he was aware that such activities did go on, particularly at or near the US-Canadian border. He felt it was a useful “persona” to develop in the context of his dealings with Irish Republicans. He accepted however that his brother had served 18 months for smuggling drugs across the Mexican border while driving a truck for a person who was also known to Rupert, namely, John Spinella. He agreed that Spinella had also gone to jail at a later stage for drug related offences.
David Rupert also admitted that he had given taped interviews to two journalists in the US who were co-operating in writing a book about his life and experiences. Asked about the proposed book deal, David Rupert said he had agreed with his co-authors that the minimum figure for same would be $1million. He felt this was important because his arrangement with the FBI had only two of three years left to run and beyond that it was really an open issue as to whether there would be further payments. The full tapes of these interviews were provided to the defence.
David Rupert also accepted that he received substantial payments from BSS, amounting to £21,000stg in 1997/1998, £34,000stg in 1998/1999 and £59,000stg the following year. In the ensuing two years he made £66,000stg and £86,000stg respectively. David Rupert agreed he had been paid these figures, had paid tax on same, and agreed they were substantial, but stated that the danger and importance of what he was doing, namely, coming forward as a witness who thereafter required to be safely relocated was going up rapidly. He never had any written contract with the BSS. In respect of the perceived danger to his life, David Rupert told the court that his daughter had received a death threat and that he was aware of messages posted on the internet seeking his whereabouts. He was in absolutely no doubt that he would be killed if ever located and that any monies he obtained or received from the security agencies had to reflect that fact.
It is common case that the prosecution in a criminal case brought in this jurisdiction is obliged to disclose to the defence all relevant evidence which is within its possession. A person charged with a criminal offence has a right to be furnished, firstly, with details of the prosecution evidence that is to be used at the trial, and secondly, with evidence in the prosecution’s possession which the prosecution does not intend to use if that evidence could be considered as relevant or could assist the defence.
In DPP v Special Criminal Court & Paul Ward  1 IR 60, the obligations on the prosecution where disclosure is concerned (hereafter referred to as “the Ward principles”) were described (at p.71) in the following terms:-
A date had been fixed for the trial of the appellant in June, 2002, but this date was vacated to allow voluntary disclosure of material to take place. While certain voluntary disclosure was then made by the prosecution, a Notice of Motion dated 26 February, 2002, supported by an affidavit affirmed by the appellant’s solicitor was filed, essentially seeking further discovery. Subsequent to the filing of this motion, affidavits were sworn by the then British Ambassador, Sir Ivor Roberts, Simon Dennison, Barrister at Law in England and Detective Chief Superintendent Martin Callinan dated 28 May, 2002. Thereafter further affidavits were sworn on behalf of the FBI by Pasqual J. D. Amuro and James Krupkowski on 14 June, 2002. The defence having indicated dissatisfaction with the level of disclosure which had been made, the Special Criminal Court conducted a hearing on this issue between 8-11 October, 2002, and gave its ruling on the key contentions in a ruling delivered on 23 October, 2002.
At the outset, this court would endorse the propriety of the approach adopted by the parties and by the court that, insofar as was possible, rulings on the general issues of disclosure were appropriately sought and made well in advance of the trial itself. This was highly desirable having regard to the involvement of overseas security agencies and was in accordance with the procedure adopted by Geoghegan J. in DPP v Nevin (unreported, Court of Criminal Appeal, 13 December, 2001) which was a preliminary application for disclosure prior to the hearing of an appeal. As had been pointed out, the trial proper could not have proceeded satisfactorily if for any reason during the course thereof witnesses were required to travel to Dublin from either the US or UK at short notice.
It was not in dispute in this case that voluntary disclosure of a very substantial amount of documentation had been made by the prosecution. It comprised 2,300 pages of e-mails and documents contained in four ring binder folders. Some of the documentation emanated from the Garda Siochana, but the vast proportion came from the FBI and BSS. The documentation forwarded by these agencies included a large quantity of e-mail documentation consisting of e-mail communications between David Rupert and these agencies and inter-agency communications. It was furnished in date order and numbered. Other disclosed material related principally to areas of David Rupert’s personal history. In relation to this disclosed material from the FBI and the BSS, sections of the documentation had been redacted because the overseas agencies claimed privilege on various grounds over the redacted information. However, the redacted sections were viewed by counsel for the prosecution who expressed satisfaction that none of the material which had been redacted was relevant to the defence of the appellant. The court was also informed that both FBI and BSS had other material in their possession. The prosecution had made the agencies fully aware of the duties as to disclosure in this jurisdiction and had received assurances that none of the retained material was relevant to the defence of the appellant. The overseas agencies were not prepared to make such further material available and asserted privilege over that material on a number of grounds.
As different considerations exist in relation to overseas disclosure and domestic disclosure, it is proposed to deal with each of same separately.
By way of preliminary observation it is important to record that the Special Criminal Court received evidence that the definition of relevancy in Irish law was explained in detail to appropriate personnel within the BSS and FBI and the importance of disclosing all relevant material was emphasised at the highest level both through legal representatives and members of the Garda Siochana.
(a) British Security Services
In his affidavit and evidence, Mr. Simon Dennison confirmed he was a barrister in practice in London since 1986 who had worked exclusively in the field of criminal law. He had previously been responsible for advising on disclosure of material in many criminal cases. Since 2001, he had been retained as the Attorney General’s treasury counsel at the Central Criminal Court. He had been prosecuting counsel in an English trial in which the appellant was named as an unindicted co-conspirator.
He told the court he had been instructed to conduct a review of material in the possession of the BSS in order to determine what required to be disclosed in this case. For that purpose he had been given a special security clearance and had been made aware of the “Ward principles”. He read all the material disclosed at par.7 of his affidavit. He stated that all material from the British Security Services in redacted form had been shown to the prosecution in unredacted form in the United Kingdom for their consideration as to whether any of the redacted passages must be disclosed. He had not therefore conducted that exercise himself. He confirmed having discussed with Mr. Birmingham the issues arising in the present case and certain specific disclosure issues. He then stated he had considered the contents of the files held by the BSS as provided to him by BSS lawyers and was advised by the BSS that he had been provided with all files held by them which contained material which might be relevant to the case. He said that applying the Ward principles and having regard to the Notice of Motion and affidavit brought by the defence he had sought to ensure that all material which might meet the test for disclosure had been shown to the prosecution for their decision as to whether it should be disclosed. As a result he had advised that further material which dealt with the relationship between the Garda Siochana and the BSS should be shown to the prosecution for its consideration. This was in turn disclosed to the appellant. He acknowledged that the disclosure obligation on the BSS was a continuing one and that issues might arise during the course of the trial which might make it necessary to revisit undisclosed material. It appears this witness was retained during the course of the trial to keep BSS documents under review. Insofar as BSS material was concerned, it is worth noting that various security handlers who had prepared certain documents of interest to the defence were offered for interview in London by the appellant’s English lawyers.
Sir Ivor Roberts gave evidence that he read a representative selection of documents submitted to him which involved reading several hundred documents. The documents were given to him in a very large bundle and came to him as 2,300 pages of paperwork. They were mainly e-mails, though he did not have a list of the e-mails. He had been provided with a key explaining the grounds upon which some redactions had been made.
In his affidavit he asserted a claim of privilege from disclosure over material which had been redacted prior to being made available to the defence and over any other material which had not been disclosed which was in the possession of the BSS. However, he deposed in his affidavit that all material within the possession of the BSS which was of relevance to the accused having regard to the Ward principles had been made available to the prosecutor so as to be disclosed to the accused.
(b) Federal Bureau of Investigation
Evidence was given to the court by James Krupkowski, Supervisory Special Agent and chief division counsel for the Chicago field office of the FBI. Further evidence was given to the court by Mr. Charles Fram, section chief of the counter - terrorism division of the FBI. Mr. Fram told the court that in this case numerous documents had been provided to the prosecution but that he had not personally reviewed them and was relying on what he had been told by subordinates. He agreed that the FBI had withheld certain documents and had redacted portions of other documents, but that he himself had had nothing to do with that process. However, the individuals who conducted that function attested to him with regard to privilege. However, he could not say which individual documents were withheld on the basis of national security privilege and which documents where withheld on some other basis of privilege.
Mr. Krupkowski stated that one of his responsibilities had been to become familiar with the discovery issues involved in this case and the information in the FBI files that was being sought by the defendants in their discovery requests. He told the court he had been made aware of the Ward principles and had perused the relevant FBI files with those principles in mind. He deposed to his belief that all of the documents within the possession of the FBI relevant to the case had been reviewed and that all material of relevance had been made available to the prosecution for its determination as to disclosure to the defendant.
The court of trial was satisfied that all materials and documents which the American authorities were willing to give to the prosecution had in fact been made available to Mr. Birmingham. Insofar as there was material which was withheld and/or redacted, privilege on a variety of grounds was asserted on their behalf by the witness who stated categorically that the US Authorities would not produce any such material. He did not however rule out the possibility that if the court did make an order, something further might be produced.
The trial court expressed itself satisfied that the various witnesses tendered in respect of disclosure were truthful and reliable.
In considering how it should deal with the question of the adequacy or otherwise of the overseas disclosure, the court stated as follows (at p.15):-
The questions this court has to consider therefore are (a) what is the extent of the obligation of the prosecution as to disclosure where it is dependent upon the co-operation of an overseas agency not otherwise amenable to court order and (b) having determined the nature and extent of the obligation, to ask or consider if the obligation has been discharged on the facts of the particular case.
It is common case that Fusco v O’Dea (1994) 2 I.R.93 provides authority for the proposition that discovery against a foreign sovereign government should not be ordered. As was stated in that case by Egan J (at p 103):-
“The situation as regards discovery against a foreign sovereign government is complicated by the principle of state immunity. This principle states that sovereign states are generally immune from the jurisdiction of the courts of other states:-
In that case defendants were convicted in the United States District Court for the Western District of New York of cocaine distribution and conspiracy. In the course of an appeal, it was held that, in light of the prosecution’s good faith in efforts to secure documents in the possession of Canadian law enforcement agencies, the Jencks Act did not require either production of withheld documents or any limitation on testimony of Canadian witnesses. (The Jencks Act provided that after a witness called by the United States had testified on direct examination, the court should, on motion of the defendant, order the United States to produce any statement of the witness in the possession of the United States which related to the subject matters to which the witness has testified.)
The court had to decide whether the documents in issue, though in the physical possession of Canadian authorities, were nonetheless in the constructive possession of the United States within the contemplation of the Act.
The court concluded (at 998):-
In response, Mr. Hartnett urged the court to take the view that there had been no balancing of competing interest by the court of trial in deciding this particular issue. In the result, decisions which were effectively judicial in nature had been taken either by unnamed overseas intelligence agents, counsel in the UK or prosecution counsel in this jurisdiction, none of which complied with the obligations set out in DPP v Special Criminal Court. He complained further that no adequate schedule of documents in respect of which privilege was asserted had been furnished to the defendants, thus making it difficult, if not impossible, for the defence to challenge multiple aspects of disclosure. He also outlined a number of concerns about specific items which had been disclosed and these concerns are dealt with later.
The court can quickly deal with any complaint that the manner or system of listing or categorisation of documents in response to the disclosure application, and specifically in respect of documentation over which privilege was claimed, led to any unfairness. Firstly, in relation to disclosed material containing redactions, any challenge to the claim of irrelevancy must fail given that the defence would not permit the Special Criminal Court at the disclosure hearing to view the documents. This court is satisfied that there was an adequate description of the disclosed material to enable such a challenge to be made. In relation to privilege, this court is also satisfied that there was an adequate description of the material and the specification of the grounds on which privilege was claimed set out in both the affidavits and correspondence furnished. In this regard the court notes that, in a judicial review challenge to the ruling of the court on disclosure (McKevitt v DPP and Special Criminal Court; 2002 836 JR), O’Neill J in a judgment delivered on 14 January 2003 rejected all complaints of an unfair system of disclosure, a decision upheld on appeal by the Supreme Court.
This court also notes that the huge volume of e-mails in this case were numbered and in date sequence – they could as a result be readily followed and apprehended and easily referred to. The documentation in the four ring binders was given over with letters and schedules listing and describing the documents in question. This occurred in successive tranches from April, 2001 up to and including the time of trial. By letter of 18 December, 2002, the DPP provided a composite schedule of documents which subsumed all that had gone before. Any complaints referable therefore to the manner or system of disclosure are rejected.
More critical, however, is the question whether or not the Special Criminal Court was correct in adopting the approach which it did to disclosure generally. Leaving to one side for the moment complaints of a specific nature about certain documents which emerged on disclosure, this court is satisfied – or as satisfied as it can be in this relatively uncharted area - that it ruled correctly on the appropriate test to apply to the prosecution where documentation is in the possession of an overseas agency which is not amenable to an order of an Irish court. The court is also satisfied that the overriding requirement to ensure that no real risk of an unfair trial would occur was also met.
In essence the Special Criminal Court required to be satisfied that there had been a shadow application of the Ward principles in this case by the overseas agencies concerned. It seems to us the court was entitled to adopt a “good faith effort” test as the appropriate onus to be placed on the prosecution in this respect, bearing in mind it could not make any effective order against such agencies and bearing in mind also that the alternative might be no trial at all. That would be to ignore the strong public policy requirement that serious criminal offences be prosecuted.
That could not of course conclude the matter because cases could well occur where overseas governments or agencies would decline co-operation or refuse to provide documentation or background information about one of their nationals in circumstances where, despite the best “good faith effort” by the prosecution, an Irish court might still feel compelled to stay or altogether stop a trial where only an ‘unfair trial’ could be had.
As a further part of the test therefore the court in our view also had to consider whether the response from the overseas agencies was such as to counter any contention that, notwithstanding the response made, there nonetheless remained a real risk of an unavoidably unfair trial. That this test also applies is manifest from the seminal statement of principle to be found in the following passage from the judgment of Finlay C.J. in Z v Director of Public Prosecutions (1994) 2 I.R. 476 at p. 507:-
“With regard to the general principles of law I would only add to the principles which I have already outlined the obvious fact to be implied from the decision of this Court in D v DPP (1994) 2 I.R 465, that where one speaks of an onus to establish a real risk of an unfair trial it necessarily and inevitably means an unfair trial which cannot be avoided by appropriate rulings and directions on the part of the trial judge. The risk is a real one but the unfairness of trial must be an unavoidable unfairness of trial.”
On the “good faith effort” limb of the test, it seems to us that the court was entitled from the evidence it heard and received at the disclosure hearing to find that great care and attention was attached by the prosecution to the requirement to convey the requirements of the Ward principles to the overseas agencies. As Chief Supertindent Callinan deposed in his affidavit:-
“I say and believe and have been advised that it has been impressed on both those agencies (FBI and BSS) the requirements which the prosecution in this jurisdiction are under to provide to the accused all relevant material within the definition referred to above (ie, the Ward principles). This has been conveyed to those agencies at the highest level both by legal representatives of the prosecutor and by senior gardai, including myself”.
On the second part of the test, representatives of those agencies, and also the British Ambassador to Ireland on behalf of his government, gave sworn testimony that those principles had guided the agencies in their approach to disclosure and that those agencies had complied with those requirements. The various witnesses, who were seen and heard by the court, were found to be truthful and credible. These witnesses gave evidence that everything of relevance had been furnished. A massive amount of material, amounting to 2300 e-mails and four binder folders of documentation, was furnished by way of response. It covered myriad aspects of David Rupert’s past life, his relations with the FBI and BSS, the relationship between those agencies inter se and with the gardai. The court was entitled in our view to take all of these matters into account to rule, as it did in October, 2002, that the trial should proceed and that adequate disclosure had been made. In so ruling the Special Criminal Court was effectively concluding at that point that it saw no real risk arising of an unavoidably unfair trial. The court was not obliged to read the entire documentation at that point, or necessarily at any point, as is clear from Ward, but correctly noted it had a continuing obligation through the trial to make appropriate rulings as might be required. Thus the court expressly reserved to itself an ongoing role with regard to disclosure. In this context it was entitled to note that the documentation which had been furnished fed 14 days of detailed cross-examination as every aspect of David Rupert’s past history was trawled over. If ever an example was to be sought as to sufficiency of disclosure in real, as distinct from theoretical, terms, then this was surely it. It is important also to recall in this context that the principal purpose of disclosure was to provide material for the effective cross-examination of David Rupert and to challenge his credibility as a witness. This entitlement in turn is subject ultimately to some degree of limitation.
As was stated by Lawton J in R v Sweet-Escott (1991) 93 Cr. App. Reports 316 at p 320:-
“What, then, is the principle upon which the judge should draw the line? (ie., as to limitations as to cross-examination as to credit) It seems to me that it is this. Since the purpose of cross-examination as to credit is to show that the witness ought not to be believed on oath, the matters about which he is questioned must relate to his likely standing after cross-examination with the tribunal which is trying him or listening to his evidence.”
It seems to us that the defence were in possession of more than adequate material for a cross-examination directed to that end and purpose, having as they did material about David Rupert spanning three decades and which related to many questionable episodes in his past life.
In ensuring, insofar as it was possible, that the parties enjoyed ‘equality of arms’ in this respect, this court further takes cognisance of the measures put in place ahead of this trial to ensure the appellant had the benefit of legal services of his own choosing in the US and in Britain. The defence was further offered and availed of opportunities furnished to interview David Rupert’s security handlers in London. These persons were also to be made available as witnesses if the defence so required.
Finally, by way of fulfilling its continuing obligations as to disclosure during the trial, the court looked at various portions of redacted documents in respect of which disputes had arisen and made such rulings as were appropriate. It ruled in every instance that none of the material redacted was of relevance to the appellant’s defence. Having viewed the same material during the appeal, this court is satisfied that there was nothing in the redacted material which required to be disclosed by way of compliance with the Ward principles. The importance of the rulings made by the court of trial however is that it amply bears out the trial court’s self-warning that it had a continuing obligation where disclosure was concerned.
We are satisfied therefore as to the correctness of all rulings made on disclosure where overseas agencies were concerned.
Disclosure in Ireland
Chief Superintendent Martin Callinan swore an affidavit in this matter and was cross examined in relation to same. He is the Chief Superintendent in charge of the security and intelligence section at Garda headquarters. His particular role is in relation to subversion and crimes of a terrorist nature.
In his affidavit he deposed that all relevant material had been disclosed to the appellant. With regard to certain other documents, privilege from disclosure was claimed on the grounds that a real and substantial threat existed that lives would be put at risk if such material was disclosed. Privilege was further claimed in respect of such documentation on grounds of national security in that disclosure of same would reveal the gardaí’s methodology and techniques and would reduce the gardaí’s effectiveness in combating crime and terrorism.
During the course of the hearing, he told the court that the information available on the appellant in his section is a compilation from intelligence sources of varying types. If that information were to be disclosed, even in the form of descriptive particulars of the documents contained in that file which spans almost three decades, it would undoubtedly lead to the identification of individuals who had given information to the gardaí. He told the court that he was aware of several examples of the retribution that had been imposed by the organisation to which it was being alleged the appellant belonged.
In ruling upon this matter, the court noted it had the assurance of prosecuting counsel that all relevant documents in the possession, power or procurement of the State had been disclosed to the appellant. Based on this assurance, and the evidence it had received from Chief Superintendent Martin Callinan, the court upheld the claim of privilege on the basis that the public interests asserted outweighed any other public interest and consequently declined to order disclosure in respect thereof.
This court would not interfere with that ruling. In Bourke v Central Independent Television  2 IRSC p.61, the asserted public interest in protecting citizens of Ireland from the risk of death or bodily injury at the hands of terrorists was recognised. Also recognised in that case was the public interest in the administration of justice which required disclosure which was necessary for the protection of the applicant’s good name. Finlay C.J. (at p.78) stated:-
“With regard to the two contesting constitutional rights which the court finds in conflict or the assumptions which I feel must be made on the hearing of this application there can be no doubt but that the constitutional right of individual citizens to the protection of their life and their bodily integrity must of necessity take significant precedence over even so important a right as the right of citizens for the protection and vindication of their good name. That does not mean of course that it excludes or extinguishes in any way consideration for and the importance of the right to a good name.”
Having heard the evidence which was given in that regard by Chief Superintendent Callinan, the court quite clearly was acting within its jurisdiction and within its discretion in making an order upholding privilege on the grounds asserted, namely, that peoples lives, security and safety would be placed at risk by disclosure.
The particular ruling did not preclude the court from revisiting issues as to the adequacy of disclosure as already indicated. Nor did it preclude the prosecution from waiving in part the privilege which the court had upheld. This in fact occurred in relation to a surveillance record of the appellant made on 17 February, 2000, which is dealt with later.
Specific Disclosure Complaints
Before leaving the topic of disclosure mention should be made of the allegation that there was a policy of “sanitising” the documentary evidence as part of a general suggestion that “trickinesses” were engaged in on the part of the BSS.
It is to some extent ironic that the primary basis for this allegation is a document itself disclosed to the defence by the BSS. This is a document dated the 14 June, 2002, which records Chief Superintendent Jennings as reacting with shock to the contents of an e-mail from Rupert suggesting that he had expressed indifference to terrorism in NI and was only interested in illegal activities in ROI. Not only was he shocked, stating that he had never said such a thing but when confronted with the problem posed, by the existence of the e-mails (which if denied make Rupert an untrustworthy source), he suggested that the report be removed. The report goes on to say that the author suggested, rather, that it might be redacted on the basis that it was a matter of liaison sensitivity.
The fact that a high ranking Garda would even contemplate removal of potential evidence is of course disturbing and would put any court on alert as was suggested by Mr. Hartnett. Furthermore, as he also suggested, the more sophisticated idea of redaction based on liaison sensitivity is in no way reassuring.
However, the fact remains that this document “warts and all” was disclosed, which does give the court reassurance because it demonstrates that the system put in place by the prosecution did actually work and achieve appropriate disclosure notwithstanding the embarrassment it undoubtedly caused the prosecution. Specifically it was arranged that the English Treasury Counsel, Simon Dennison, who had clearance to view such documents from the BSS, would review all relevant documents on behalf of the Irish prosecution and having done so did in fact direct that further documentation should be disclosed. Furthermore, the author of the document was made available to the defence team for interview as were other members of the BSS. These members were willing to give evidence, if the defence legal team required them to, but this was not done.
Another allegation in this context was that there was a deliberate policy to mislead the accused and his advisors by bringing into existence a further document seeking to distort the impact of earlier documents. This arose, specifically, as follows:-
A twelve paragraph document was prepared by Mr. Simon Dennison giving a
summary of Rupert’s background. Mr. Dennison’s document at paragraph 10 refers to a meeting on l3 September, 2000, where Rupert “related much about his earlier criminal and smuggling background”. A document headed “witness statement” and dated 10 April, 2002, was produced which in the context of Rupert’s references to stories about alcohol and tobacco smuggling stated that the author of that document “formed the impression that the stories were based upon what he was aware of rather than what he was engaged in.”
These documents were available at the trial. The defence were under the impression that the latter document was the source document for paragraph 10 of Mr. Dennison’s document. It emerged, however, that Mr. Dennison’s document was actually dated 7 April, 2002, and therefore the document of 10 April could not have been source for paragraph 10 thereof. It was for this reason that defence counsel at the trial alleged that the latter document which was a “further statement” of the author’s, had been brought into existence to put a gloss on Mr. Dennison’s paragraph 10.
However, this court was taken through a series of documents at least one for each of the twelve paragraphs which were the true source for Mr. Dennison’s document which was a summary of their contents. These documents included a file note typed on 15 September, 2000, which refers to Rupert relating “much about his earlier criminal and smuggling background”. This document indicated it transpired that the latter had never been brought to the attention of Rupert’s handler who proposed that it should be used and that Rupert invent a contact in Puerto Rico. The overall context was that Rupert was to invent a background of involvement with smuggling so as to enhance his attractiveness with his Irish Republican contacts.
It was this and other documents which in fact antedate Mr. Dennison’s document, the date of which was established as being 7 April, 2002, which was the source of paragraph 10 thereof and not, in fact, the further “witness statement of witness C dated 10 April, 2002”. In those circumstances it became clear at the hearing before this court that the allegation that the latter document had been brought into existence in order to put a gloss on Mr. Dennison’s document was in fact not made out. Furthermore it is worth noting that the author of the document dated10 April, 2002, about which the appellant complained, was made available to his legal team for interview and was in fact interviewed. The witness, however, was not called. The court is satisfied that the defendant has not established that there was deliberate trickiness or a policy of sanitising documentary evidence on the part of the prosecution.
Indeed the disclosure in this case is in marked contrast to what was available by way of disclosure to similar defendants (not including the appellant) in a prosecution brought at Woolwich Trial Court in England where witness C was potentially a witness in that case. In that case the only background information was the summary prepared by Mr. Simon Dennison on 7 April, 2002.
This whole controversy arose at the trial because Mr. Birmingham took exception to what he described as the “mantra accusation of Mr. Hartnett” to the effect that Mr. Rupert had admitted criminality whereas the source documents indicated no more than that he had contacts with criminal elements, was never proved to have engaged in criminality himself and furthermore that it was suggested that this background be worked up to create a persona which would make him more attractive to his republican contacts.
The court is satisfied that the allegation that there was a policy of sanitising documents before they were disclosed to the defence or of other “trickinesses” has not been established and that the basis for the allegation has been satisfactorily explained by the prosecution.
The Credibility of David Rupert
Before proceeding to consider the ruling of the Special Criminal Court made with regard to the credibility of David Rupert as the prosecution’s key witness, it is perhaps appropriate for the court to remind itself of the appropriate role of an appellate court where an appeal is made to it from a court of first instance which has made findings of fact. In Hay v O’Grady  1 I.R. 210, McCarthy J. (with whom the other members of the court agreed) set out (at p.217) a series of principles which ought to govern the approach taken by an appellate court:-
“The role of this court in my view may be stated as follows:-
(i) an appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence, but also observes the manner in which it is given and the demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial.
(ii) If the findings of fact made by the trial judge are supported by credible evidence, this court is bound by those findings, however voluminous and apparently weighty the testimony against them. The truth is not the monopoly of any majority.
(iii) Inferences of fact are drawn in most trials: it is said that an appellate court is in as good a position as the trial judge to draw inferences of fact…I do not accept that this is always necessarily so. It may be that the demeanour of a witness in giving evidence will itself lead to an appropriate inference which an appellate court would not draw. In my judgment, an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact and a different inference has been drawn by the trial judge.”
This test was earlier set out in slightly different terms by Holmes L.J. in the S.S. Gairloch  2 I.R. 1 at p.18 in the following terms:-
In structuring its judgment in relation to the evidence of David Rupert, the Special Criminal Court firstly considered the entire history of David Rupert to date of trial, including (a) his history prior to his involvement with the FBI in 1994 (b) his history from 1994 to the time when he met the appellant in 1999 and (c) his history from 1999 to date.
In the course of considering that history, the court noted that David Rupert “had a very chequered business career and operated close to the edge in many matters”. The court also noted that when he first came to Ireland in 1992, he had no political agenda of any sort and indeed did not develop an interest in Irish republican affairs until he returned to Ireland with Linda Vaughan in late 1992. The court traced the history of his growing involvement in Irish republican affairs through meetings he had with Joe O’Neill and Vincent Murray in the Bundoran/Sligo area. The court further noted the initial contact between Rupert and FBI Agent Buckley in summer 1994 which led to his metamorphosis into an intelligence asset, firstly, for the FBI and later for British Security Services. The court further noted that at times, and certainly in relation to his business activities in America, David Rupert had run out of money and was in a very bad way financially towards the end of 1996. Thereafter David Rupert became a contracted agent to the FBI in February, 1997, on foot of a written contract whereby he was initially paid $2,500 per month for his services. The gradual penetration of republican circles by Rupert in Ireland was also fully set out in this section of the courts judgment, which also records that David Rupert attended various Ard Fheiseana of Republican organisations. The court further reviewed the evidence of David Rupert’s activities from 1999 up to and including the time of his meetings with the appellant and fully set out the circumstances of his first meeting with the appellant in a hotel in Monaghan on the day of an All-Ireland Football Semi-Final in late August, 1999. The court set out in considerable detail the particulars of that meeting and the main topic of discussion, namely, that David Rupert approach elements of Republican Sinn Fein to assess if they would be willing to become the political wing of a new republican organisation.
The court also described in this section of the judgment at some considerable length the account of the command structure given to David Rupert by the appellant, the nature of the military campaign which the appellant had in mind going forwards, the division of responsibility as seen by the appellant for the Omagh bombing atrocity, the role which the appellant ascribed to himself in an arms deal with Colonel Gaddafi in Libya and the requests made of David Rupert by the appellant to raise funds and support in the US.
The judgment further recites details of further meetings between David Rupert and the appellant, in one of which there was a discussion about the raiding of a training camp in Donegal as a result of which the appellant stated that he had ordered the re-establishment of six more training camps. The court also noted the details which David Rupert said had been given to him by the appellant of agents in America, including a “sleeper” with whom the appellant had worked in South Africa on the acquisition of arms. The court further noted that David Rupert had given evidence of attending a meeting with engineers in a house in Dundalk in 1999 which was attended by the appellant and at which there was a discussion about making Barrett rifles and at which “engineers” who attended the meeting were looking for various items which had a potential military use.
The court described in detail in this section of the judgment the visit to Ireland made by David Rupert in February 2000, when he brought with him a sum of just under $10,000 together with four personal organisers as requested. The court further noted David Rupert’s evidence that he attended a meeting of the Army Council in the Greenore area and noted that David Rupert “was not in a position to say whether or not the accused was present at that meeting”. The court also described in considerable detail a meeting attended by the appellant and David Rupert at 83 Oaklands Park in Dundalk on 18 February 2000, which was also attended by an electronics engineer and a bomb technician.
The court noted that on another occasion David Rupert had installed a computer in the appellant’s home for which he got a receipt signed in the name “Patrick O’Hagan” by the appellant which he passed to his security handlers. This receipt was produced in court and identified by the witness. The witness further identified a computer which had been found at the appellant’s home on the date of his arrest as being the one he had brought form the US. The court further noted that David Rupert had given evidence of seeing a guide book on Yugoslavia on a bookshelf in the appellant’s home and identified in the course of his evidence a guidebook on Yugoslavia as being similar to the one he had seen in the house. This book was found by the gardaí on the date the appellant was arrested.
This by no means exhaustive review of this section of the court’s judgment satisfies this court that in its approach to the narrative history of David Rupert’s past life, his involvement with republican circles in Ireland, and more particularly, his knowledge of the appellant, the court conducted a careful and balanced assessment of the evidence which had been presented and which, of necessity, had to be summarised in condensed form in the judgment of the trial court.
The court then proceeded to consider the confirmatory and corroborative evidence which was led by the prosecution and which supported to a greater or lesser degree the evidence given by David Rupert. This material, as was noted by the court, included the all-important sighting of David Rupert at 83 Oaklands Park in Dundalk on the occasion described by David Rupert as an engineers meeting. The court noted that various garda witnesses who were performing observation duty on that occasion already knew the appellant and identified him as being present on that occasion and leaving the house with David Rupert. The court also noted other evidence given at the trial confirming the attendance of David Rupert at various republican meetings, commemorations and Ard Fheiseanna from 1998 onwards. There was further evidence confirming that All-Ireland Football Semi-Finals took place on both the 22 and 29 August, 1999. Further evidence from Detective Garda Frank McGrath was noted to the effect that on the 20 October 2000, David Rupert was seen to be a passenger in a car driven by the appellant’s son Stephen McKevitt, when it was driven to the home of the appellant where both Stephen McKevitt and David Rupert went into the appellant’s house. The court further noted evidence that on 23 October 2000, David Rupert and his wife were seen leaving the Ballymascanlon Hotel in Dundalk in the company of the appellant and his wife.
The court further noted the evidence which had been given in relation to the items found in the home of the appellant, including the computer already referred to, the guidebook on Yugoslavia and four photographs showing the witness, David Rupert, which he identified as representing him at a number of meetings of the republican family.
Having set out these matters in considerable detail, the court only then proceeded to address the central issue of credibility which is at the heart of this case.
In structuring this part of its judgment, the court conducted the task of assessing David Rupert’s credibility by reference to the following:-
“(1) his knowledge of the facts to which he testifies
(2) his disinterestedness
(3) his integrity
(4) his veracity
This list, the court feels, is not exhaustive and must in the courts view be added to by the following:-
Having found that David Rupert had a considerable knowledge of the republican family in Ireland and America, the court assessed that Mr. Rupert had spoken with “authority” of his knowledge of the people associated with the appellant, such as Mickey Donnelly, Philip Kent, Liam Campbell, Seamus McGrane and others. He knew the whereabouts of the appellant’s home and had visited same. He was familiar with the house at Oaklands Park in Dundalk and the house at Greenore where he attended the Army Council meeting. He had pointed out all of these locations to the gardaí. The court further noted that he was able to describe in considerable detail the seating arrangements of the various parties present at the meeting between David Rupert and the appellant at the Four Seasons Hotel in Monaghan.
On the topic of “disinterestedness”, the court reviewed (a) the contracts and negotiations relative to those contracts between the FBI, the BSS and the witness (b) the alleged fixing or settling of his tax affairs with the American IRS and the role of the FBI in that regard, (c) the “book deal” which David Rupert had sought to set up in respect of his life and times, and noted that relevant tapes of interviews he had given journalists in that regard had been made available to the defence for cross-examination purposes. The court further noted that in no material respect did these extracts from the tapes differ from Mr. Rupert’s evidence and the vast majority of the contents of the tape were not put to the witness at all.
Insofar as the integrity of the witness was concerned, the court listed many areas where efforts had been made to discredit the witness (at p.48-9 of the judgment).
The court however noted that:-
Criticisms of the Judgment on the Issue of Credibility
The first criticism made of the judgment is that it failed to address and assess in detail the list of issues which had been canvassed in cross-examination of David Rupert, and to give a reasoned judgment in relation to the issues that arose (p.35 of appellant’s submissions filed 3 November 2005). It was submitted that the court too easily accepted David Rupert’s credibility on the basis that it had not been shown that he had actual previous convictions despite the fact that some of the documents referred to in cross-examination suggested prior criminal activity by the witness.
Firstly, as already noted, the court in no way restricted the defence in the cross-examination as to credit. Further the court of trial correctly identified the matters recited in Archbold  Ed, Chap. 8 - 137 as constituting the criteria by reference to which witness credibility may be assessed. However, the right to effective cross-examination is of course subject to the “collateral issue rule” which operates to prevent a trial descending into what Healy (Irish Laws of Evidence)  (p.76) describes as “a labyrinth of splitting issues and delay.”
The author states (p.76):-
Of course exceptions may arise to the collateral issue rule, notably where there have been previous inconsistent statements made by a witness or where there is bias on the part of the witness or previous convictions.
Nonetheless, the rule in its plain and ordinary meaning must be taken as meaning that a court is not required to deliver multiple “mini-judgments” in the course of a larger judgment where the key issue in the case is the credibility of the main prosecution witness. Nor is the court required to establish definitively the facts of any such collateral issue. Any submission that the court of trial should have done either of these things is rejected. Furthermore this court is satisfied that the defence was allowed enormous latitude in pursuing collateral issues, sufficient to allow the court to form a well-considered view of the credibility of the witness. No topic, however remote in time or location from the events giving rise to the charges, was ruled off-limits.
The second complaint in this regard is the alleged failure of the court to give adequate reasons for finding that David Rupert was a credible witness.
Heavy reliance in this regard was placed by counsel for the appellant on the decision of the Court of Appeal in England in Flannery & another v Halifax Estate Agencies Ltd  1 All ER 373, in which it was held that a failure by a judge to give reasons made it impossible to tell whether he had gone wrong in the law or the facts and such a failure could itself constitute a self-standing ground of appeal since the losing side would otherwise be deprived of its chance of appeal. The relevant portion of the headnote reads:-
However, this court is satisfied that the facts in Flannery & another v Halifax Estate Agencies Ltd are far removed from the kind of issue with which the court was dealing in the instant case. In Flannery, the plaintiffs had purchased a flat, relying upon a report from the defendant valuers which stated that there were no apparent undue hazards in respect of movement. Subsequently, the plaintiffs placed the flat on the market, but a prospective sale fell through after the valuers produced a fresh report, concluding that the property was affected by structural movement. The plaintiff sued for negligence in respect of the earlier report, but the valuers contended that the flat had never suffered from any significant structural movement. At trial, the case centred entirely on the dispute between the rival expert witnesses concerning the cause of cracks in the properties superstructure. Without providing any reasons for his decision, the judge stated that he preferred the evidence of the valuers expert witness, and accordingly dismissed the claim.
As was noted by Henry L.J. in the course of his judgment (at 378):-
In assessing the credibility of the witness therefore the court was entitled to have regard to the fact there were not two alternative versions to choose from, but simply a single issue of whether one witness was to be believed or not. This court therefore is quite satisfied that Flannery & another v Halifax Estate Agencies Ltd  1 All ER 373, is of no particular assistance to the defence on the facts of this case.
In the circumstances of this case the court was entitled to set out fairly briefly and concisely why it found David Rupert to be credible. This it did by reference to the various criteria set out in Archbold and the court’s findings were further supported by references to the evidence. It is the view of this court that the requirements of State (Creedon) v Criminal Injuries Compensation Tribunal (1989) I.L.R.M. 104 were fully met in this case. This ground of complaint is therefore rejected.
This court also rejects as groundless any suggestion that the court transferred the onus of proof to the defence to establish convictions or to prove falsehoods. Read as a whole, the judgment makes it abundantly clear that the court at all times required the prosecution to prove and establish its case in every particular beyond reasonable doubt.
The next complaint relates to the weight given by the court to certain portions of David Rupert’s evidence. For example, it was argued that evidence that David Rupert knew where the appellant lived, that he was able to name prominent people in the republican movement, that he was able to recall the seating arrangements for his first meeting with the appellant, were not matters which could be seen as conferring on David Rupert knowledge of the facts to which he testified in relation to the direction or otherwise by the appellant of the activities of an illegal organisation.
However, the weight to be attached to any particular piece of the evidence was entirely a matter for the court of trial and it is not the function of this court to determine if it would have attached equal, greater or lesser weight to certain portions of the evidence in this regard than others.
True there were inconsistencies and failures of recollection as to dates and times by Mr. Rupert in the course of his evidence, but this court is satisfied that there was abundant evidence given by Mr. Rupert from which the court as triers of fact could reach the conclusion that in his evidence in relation to the appellant and in his account of their conversations together and the instructions he was given by the appellant, David Rupert was both credible and reliable.
Perhaps the most important complaint on the issue of David Rupert’s credibility is the suggestion that the court should have treated him as a special category of witness, being one in respect of whose evidence particular caution was required. While David Rupert could not be categorised as a “supergrass” it was submitted that he in effect defied categorisation as a witness being both an “informer, agent provocateur and agent”. Reliance was placed, inter alia, on decisions of this court in DPP v Ward [CCA] 22 March 2002, and DPP v Gilligan [CCA] 8 August 2002 to suggest that the evidence of such a witness was highly suspect and unreliable.
The main points argued on behalf of the appellant in this regard are as follows:-
(a) David Rupert was a witness paid by both the FBI and British Security Services
(b) David Rupert stood to gain from his giving of evidence against the appellant
(c) David Rupert ensured that he was paid considerable sums of money by both intelligence agencies before the trial and ensured that payments would continue afterwards
(d) David Rupert ensured with the assistance of the FBI that considerable personal tax liabilities were written off on circumstances where he was contracted to give evidence against the appellant
(e) David Rupert received a bonus in respect of his services without identifying the reason for the bonus
(f) Prior to the commencement of the trial, David Rupert had entered into negotiations with- a view to the publication of a book outlining his activities in Ireland
(g) The witnesses only means of income was from payments made to him by the security services
(h) David Rupert had made admissions in relation to his preparedness to be dishonest for financial gain.
(i) David Rupert was an accomplice
At the outset the court is quite satisfied that there are no grounds for any suggestion that David Rupert was either a “supergrass” or “accomplice” in the criminal allegations levelled against the appellant. He took no oath of membership in any illegal organisation. The terms of his contract with the FBI expressly precluded his participation in criminal activities. There was no evidence that he participated in any criminal operations conducted by any republican grouping, nor was it ever suggested either that he had done so or that he received payment or reward from any republican group or criminal. Such ‘shopping’ for parts as he did in the US was exclusively limited to what was necessary to maintain his cover. The court of trial indeed was not asked to rule that David Rupert fell into the category of accomplice. The court is satisfied therefore that any requirement on the court of trial to warn, or self-warn, in that context did not arise. Nor did the court of trial accept that David Rupert was mendacious in the manner suggested at (h) insofar as his evidence at trial was concerned and there was no clear evidence that the FBI fixed his tax liabilities to the IRS though undoubtedly it played a facilitatory role in helping David Rupert meet with the IRS for the purpose of resolving those difficulties.
Nonetheless, the court recognises that the various factors and considerations listed at (a) - (i) above were, taken as a whole, such as to alert the trial court to be vigilant, careful and circumspect when assessing the evidence of this witness. This is no more and no less than the exercise of ordinary prudence and commonsense in dealing with a witness with the kind of “baggage” David Rupert had, both in the respects outlined above and because of his previous personal and business activities, many of which, as was noted by the court, were close to the edge of illegality and at times perhaps tainted by it. However, that is not to say that David Rupert thereby became a witness who could not be believed in relation to the main thrust of his evidence in this case. Indeed, the very background which emerged in the course of such a lengthy cross-examination showed David Rupert to be a person whom the court would be entitled to regard as uniquely qualified for the dangerous and demanding role of double agent in which he was engaged. Further the fact that the overseas agencies increased his remuneration with each passing year could be seen by the court as indicating that the FBI and BSS felt they were getting intelligence information of value and reliability.
This court is satisfied that any requirement to treat this witness with caution was met, and may be seen to have been met, by the length of time for which the witness was cross-examined in unrelenting detail for day after day during this trial. The restraint exhibited by the court when collateral issues were canvassed in such extraordinary detail can only be seen by this court as underlining the scrupulous care which the court of trial applied to the obligation it had to be cautious in relation to this witness.
The court therefore rejects all criticisms made of the court’s judgment in relation to the credibility of David Rupert.
Surveillance Report of 17th February, 2000
On the twenty third day of the trial, counsel on behalf of the appellant sought to stay the proceedings or, alternatively, that the court discharge itself from further hearing the case, because of the late disclosure of an extract from a garda surveillance report dated 17 February, 2000.
The document in question was disclosed to the defence, effectively by a waiver of a claim of privilege previously asserted and upheld, after the cross-examination of David Rupert had concluded, but during the cross-examination of Detective Sergeant Healy.
The relevant portion of the surveillance report reads as follows:-
“5:30pm. Members took up duty on Michael McKevitt for a possible meeting.
6:33pm. Vincent McKevitt arrived at Michael McKevitt’s house in 97-D-20402. His car was still there at 7:10pm. Vincent’s car was gone at 7:35pm. It was not at his home in Oak Lawns when the house was checked. His car was parked at his home at 8:30pm. It was missing at 8:50pm and was back home at 10:05pm.
This report, in redacted form, was furnished to the defence on the 18 July, 2003.
The material in this surveillance report was part of the internal garda operational report which, the court was told, has never been disclosed in criminal trials in this jurisdiction because privilege has invariably been asserted and upheld in relation thereto. However, in this case material from the operational report was incorporated into statements of proposed evidence to be given by a number of garda witnesses, so that statements from different members of the gardaí were supplied to the defence on 28 May 2002 in respect of sightings of the appellant on the 5 February 2000, 9 February 2000 (2 sightings), 11 February 2000, 20 February 2000, 24 February 2000 and 13 February 2000. It is of some significance to note that the list of statements did not include the sighting of the appellant quoted above which was made on 17 February 2000. This material was relevant for reasons the court will now set out.
In his proposed statement of evidence, David Rupert had stated that on this particular visit to Ireland, ie., the visit of February 2000, his second meeting with the appellant was at a house in Greenore which said meeting was also his first meeting with the Army Council. In his statement of proposed evidence, David Rupert stated as follows:-
The proposed statement of David Rupert had also formed the basis for questions put to the appellant while in custody following arrest when it was suggested to him that he had in fact attended that particular Greenore meeting. Mr. Hartnett argued that disclosure of the surveillance report would have put the defence in a much stronger position in terms of challenging Mr. Rupert’s recollection and credibility.
Further, the e-mails which David Rupert had prepared included one sent on the evening of the 17 February, 2000, from which it was clear that the meeting in Greenore had taken place on that particular date and no other.
The relevant portion of the e-mail sent by David Rupert to his security handlers at 10:12pm on 17 February stated as follows:-
I was transported to a place called Gael’s Quay which is on the coast road on the North side of Dundalk. I was changed to a white four wheel drive pick-up”
Mr. Hartnett submitted that David Rupert must have been incorrect when saying in his e-mail that he had been picked up at 6:10pm, given that the garda surveillance report made it clear that at 6:00pm Stephen McKevitt was observed travelling from Blackrock in a car on his own.
Mr. Hartnett submitted that these inconsistencies and contradictions were matters of considerable importance in the context of the cross-examination of David Rupert. Had the defence known of this material at the outset of the trial, it would have been possible to canvas these matters with David Rupert in cross-examination and to reappraise the entire defence strategy in the case. He further submitted there was a clear breach of the Ward principles in this respect with the result that the conduct of the defence had been “irreparably prejudiced”.
Mr. Hartnett also attached some significance to the fact that, in the course of opening the disclosure application in October, 2002, counsel for the prosecution had indicated that the evidence in the case would be to the effect that the appellant was present at the Greenore meeting.
In response, Mr. Birmingham argued that the prosecution had taken their obligation to make full disclosure very seriously indeed. He stated that no case had come before the courts in which the level of disclosure made was as comprehensive as in the present case. Insofar as the surveillance reports were concerned, they were documents of a category which had never been disclosed in any criminal trial in this jurisdiction. At the disclosure hearing, Chief Superintendent Callinan, who had referred to the existence of surveillance reports in his affidavit, amplified in oral evidence that he was claiming privilege in respect of such reports.
The appellant’s legal advisors had in no way been misled or prejudiced, because the e-mail, being one of over 2,000 e-mails disclosed, made it patently and abundantly clear that the appellant was never at the Greenore meeting. Neither in direct examination nor in cross-examination had David Rupert stated that the appellant was present at the meeting. Accordingly, no question of an alibi arose in respect of this particular issue. Given that the supposed presence of the appellant at the Greenore meeting was not, in fact, the case made at trial by the prosecution, the sighting of the appellant in his home on the evening of the 17 February, 2000, altogether lacked the significance contended for by the defence.
Insofar as the reference to Stephen McKevitt was concerned, Mr. Birmingham argued that the height of the significance of the discrepancy was that either Mr. Rupert was wrong by eight minutes in his pick-up time, or the gardaí were wrong by eight minutes in their surveillance report when it referred to a sighting Stephen McKevitt at 6:00pm. Mr. Rupert’s evidence had been that Stephen McKevitt was his regular chauffeur when he went to meetings and that fact had not being disputed.
Mr. Birmingham further argued there had been voluminous good faith disclosure in this case and no deliberate suppression of relevant evidence or material. Redacted versions of the weekly surveillance reports had been made available to the defence. Had this been an exercise in trying to suppress material, it would have been far easier to have confined the disclosure to sightings on the following day, 18 February, 2000. In fact, subject to limited redactions, the entire weekly report of the garda investigation around the 18 February, 2000, had been disclosed to the defence. In focusing on those portions of the reports of the National Surveillance Unit which related to days when David Rupert and the appellant were alleged to be in each other’s company, the prosecution was behaving appropriately and properly. Less attention had been focused on days when it was not being suggested that they were together.
In ruling upon this particular issue, the Special Criminal Court accepted that the statement of David Rupert contained in the Book of Evidence indicated that the appellant had attended an Army Council meeting in Greenore with David Rupert in the course of David Rupert’s visit to Ireland in February, 2000. The court noted, however, that neither a time or date for the particular meeting was given. Further, the court held that it was clear from Mr. Rupert’s e-mail, dated 17 February 2000, which was disclosed voluntarily by the prosecution to the defence, that David Rupert therein stated that the appellant was not at that particular meeting, and, further, in the course of his sworn evidence to the court, was unable to say if the appellant was at that meeting. The court thus found itself able to hold that the recently disclosed surveillance report went no further than to support the e-mail “of which the defence have been in possession for a considerable length of time”. The court took the view that there was no connection established between Mr. Rupert and the appellant at this purported Army Council meeting. The court further took the view that any difficulty arising by virtue of late disclosure could be adequately dealt with by recalling Mr. Rupert in order to afford the defence an opportunity of addressing the matter.
In relation to the movements of Stephen McKevitt on 17 February 2000, the court noted the alleged discrepancy between what was disclosed to the defence in the surveillance report and his e-mail of 17 February which disclosed that he was picked-up by Stephen McKevitt for the meeting in Greenore at 6:10pm on the 17 February. The court noted however that Mr. Rupert’s sworn evidence did not disclose a date or time at which he was picked-up. The court concluded that the “now disclosed material” suggested that Mr. Rupert was incorrect in this detail. The court went on to say (day 24-p.8):-
The court further expressed itself satisfied that the case was not analogous to DPP v Flannery (unreported, Barr J, Central Criminal Court, 25 June, 1996) in which the trial judge stopped a trial when he concluded there was a conscious and deliberate policy to subvert the course of justice by suppressing documents in the possession of the police. The court expressed itself satisfied that, on the facts of this case, no such state of affairs existed and that the failure by the prosecution to furnish the material was not deliberate and would not warrant the staying of the trial on that ground.
That application having been refused by the Special Criminal Court, counsel then requested the court to discharge itself from further hearing the case, effectively putting forward the same reasons and arguments which had grounded the submission for the stay. This application was also refused, the court invoking in support legal principles set out in D v DPP  2 I.R. at p.465, Z v DPP  2 I.R. p.476, Nolan v DPP  3 I.R. at p.66 and Dunne v DPP  2 I.R. at p.305. In the immediate aftermath of that ruling, the appellant withdrew his instructions from his legal team.
This court is satisfied that the Special Criminal Court did not err either in ruling that there should be no stay or in ruling that the court should not discharge itself from further hearing the case.
In essence, the only real point of significance in relation to the disclosure of the surveillance report was the lateness of that disclosure. There can be really no doubt but that the material was relevant, but the court had already upheld the claim of privilege in respect of surveillance reports in the hearing of October, 2002. The redacted document thus was disclosed by virtue of a partial waiver of the privilege which had been asserted and upheld by the court.
It seems to this court that disclosure made in such circumstances was of itself sufficient justification to enable the court hold, as it did, that there was no mala fides or wrongful attempt to suppress relevant material on the part of An Garda Síochána.
Insofar as the appellant’s submissions therefore relate to prejudice allegedly suffered, this court is also satisfied that these submissions cannot succeed. What appears to have been an error in counsel’s opening address to the court in the disclosure hearing many months before the trial began (when it was suggested the appellant had been at the Army Council meeting in Greenore), could not in our view be seen as having the slightest significance in the context of the trial proper.
Firstly, Mr. Rupert himself in evidence, both in direct examination and cross-examination, stated that he could not recall if the appellant was at the Greenore meeting (day 5-p.48 and day 20-p.14). In his proposed statement of evidence he did not give a date for the Greenore meeting. In the course of his evidence he referred to the difficulty he had in dealing accurately with some of his dates because of the large amount of reporting of intelligence which he had done.
In addition to the evidence given at trial by David Rupert, the defence were also in possession of the contemporaneous e-mail dated 17 February 2000 which reported the Greenore meeting to his handlers but which specifically stated that the appellant did not attend this particular meeting. This material had been furnished to the defence well in advance of the trial so they were at no disadvantage in any proposed cross-examination of Mr. Rupert in relation to his proposed evidence.
While the sightings of 17 February 2000 have been characterised by defence counsel as an “alibi” for the appellant, this court rejects that submission having regard to the nature of the specific offence with which the appellant was charged, namely, that between August 1999 and March 2001, he directed the activities of an organisation in respect of which a Suppression Order had been made under s.19 of the Offences against The State Act, 1939, contrary to s.6 of the Offences against The State Act, 1998.
Had this been a case where, for example, the appellant had been implicated in a bank robbery on 17 February 2000, the discrepancy between the statement of proposed evidence and the surveillance report would have been a matter of great significance.
A completely different situation however may be said to exist where the sighting of 17 February 2000, is but one piece in a mosaic of evidence implicating the appellant in the offence of directing such activities. The evidence in this regard is gleaned from David Rupert’s account of a substantial number of meetings with the appellant in the course of which the appellant gave Mr. Rupert clearly to understand that he was in a position to control and direct the activities of the Real IRA. That this was so can be gathered from David Rupert’s account of his first meeting with the appellant in the Four Seasons Hotel in Monaghan, the role of command which the appellant assumed at that meeting, the disclosures made by the appellant to David Rupert at various times thereafter, the requests which David Rupert says were made of him to bring other republicans on board with the Real IRA in Ireland, requests to further contacts in America, requests to purchase a shopping list of items in America, and, most significantly, the evidence of Mr. Rupert in relation to the meeting which took place in Dundalk on 18 February 2000, evidence which in turn is corroborated by the evidence of various gardaí who were on surveillance duty in Oaklands Park in Dundalk on the occasion in question.
It is against this background that the assertion that the sighting of the 17 February 2000 provided “an alibi” in respect of the offence charged must be assessed. This court is satisfied that there was ample other evidence upon which the court could act and be satisfied, beyond reasonable doubt, that the appellant was guilty of directing such activities.
The court is further satisfied that the Special Criminal Court gave an appropriate ruling in relation to the late disclosure of the redacted surveillance report. It offered to the appellant, represented as he then was by his legal advisors, the opportunity of having David Rupert recalled so that these discrepancies could be further explored and assessed. This opportunity was not availed of either then or later when the invitation was again extended by the court to the appellant after he had discharged his legal team.
In relation to the relevance of the late disclosure insofar as it relates to observations of Stephen McKevitt, the court is satisfied that precisely the same considerations arise. David Rupert was not challenged in cross-examination as to his claim that Stephen McKevitt regularly acted as his driver when he was in Ireland. Nor was he challenged on his claim that Stephen McKevitt drove him to the Greenore location on the night of the Army Council meeting or indeed on any other occasion. Further, sightings by gardaí of Stephen McKevitt collecting Mr. Rupert were not challenged either. Accordingly, the only use which could have been made of the document in this regard was to challenge Mr. Rupert’s reliability as to time on one occasion in circumstances where David Rupert had not specifically mentioned a time in evidence.
The court is therefore satisfied that the fairness of the trial was not put in jeopardy by the late disclosure which occurred in this case. All grounds of complaint in that regard are therefore dismissed.
Refusal of Court to Sever Indictment
On the first day of the trial hearing, counsel on behalf of the appellant made an application to sever the indictment.
The submission was based on the argument that the two counts were subject to different rules of evidence and procedure and were thus unsuitable for joint trial.
Firstly, it was submitted that, in relation to a charge of membership of an illegal organisation, it is open to the prosecution to call evidence of opinion, which itself is a significant exception to the usual rule regarding the giving of opinion evidence by non-expert witnesses. Secondly, in a membership charge, inferences can be drawn from the failure to answer questions which the court considers to be material in relation to a charge under s.21 of the Offences against The State Act, 1939. However, neither of these considerations would arise in relation to the charge of directing the activities of an unlawful organisation. Counsel submitted that it would be virtually impossible for any court of trial to consider the issue of whether the witness David Rupert was a credible witness without being influenced by the opinion of a senior member of an Gardaí to the effect that the appellant was a member of an illegal organisation.
In response, counsel for the prosecution argued that a court has discretion whether or not to direct separate trials. In this instance, the court had judicially considered how to exercise this discretion and had declined to order separate trials. The approach taken by the trial court to hold that as professional judges they would be well equipped to identify which evidence at trial was referable to which count and whether any evidence of trial was admissible on one count only was an entirely proper approach for the court to have taken and well within its discretion.
This court agrees with that view.
Section 6(3) of the Criminal Justice (Administration) Act, 1924, provides:-
“Where before trial or at any stage of a trial, the court is of the opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment, or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in an indictment, the court may order a separate trial on any count or counts of such indictment.”
In the instant case, the Special Criminal Court was extremely well qualified to segregate the evidence relevant to one count from that appropriate to another. The court is satisfied that this ground of complaint is completely without substance.
For all the reasons stated the court will dismiss the appeal.