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Cite as: [2008] IESC 51, [2009] 1 ILRM 401, [2009] 2 IR 525, [2009] 1 IR 525

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Judgment Title: DPP -v- McKevitt

Neutral Citation: [2008] IESC 51

Supreme Court Record Number: 467/06

High Court Record Number: 2003 No 174 CA

Date of Delivery: 30 July 2008

Court: Supreme Court

Composition of Court: Murray C.J., Denham J., Hardiman J., Geoghegan J., Fennelly J.

Judgment by: Geoghegan J.

Status of Judgment: Approved


Judgments by	Result	Concurring
Geoghegan J.	Appeal dismissed - affirm High Court Order	Murray C.J., Denham J., Hardiman J., Fennelly J.

Outcome: Dismiss

Notes on Memo: Dismiss appeal. Certified Question answered in affirmative.

THE SUPREME COURT

Record No. 467/2006

Murray C.J.
Denham J.
Hardiman J.
Geoghegan J.
Fennelly J.

IN THE MATTER OF SECTION 29 OF
THE COURTS OF JUSTICE ACT, 1924

BETWEEN/

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

Respondent

and

MICHAEL McKEVITT

Appellant

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

Introduction

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

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

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

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

Issues

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

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

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

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

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

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

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

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

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

Disclosure

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

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

Leaving aside for the moment the added problems of foreign disclosure, even on the ordinary rules of domestic disclosure there would appear to have been a certain amount of confusion on the part of the defence both as to the distinction between a document not disclosed because it was believed to be irrelevant and a document the existence of which is disclosed but in respect of which privilege was pleaded. Secondly, there was also confusion as to the role of the court in deciding whether a document was relevant or not. This latter confusion largely arose from a particular interpretation (probably incorrect) of dicta by Carney J. in DPP v. The Special Criminal Court [1999] 1 IR 60. Carney J. had stated in the High Court that there could be no question of the gardaí or counsel for the prosecution deciding that any material might be withheld from disclosure to the court or the defence. But I think it reasonably clear that Carney J. was talking of a situation where there was a dispute between the parties. The case went on appeal to the Supreme Court and in a judgment with which the four other members of the court agreed O’Flaherty J. stated as follows:

“… Counsel for the prosecution must have a role in disclosing all relevant material to the defence but counsel must also be in a position to take a stance on the matter of informer privilege which, in turn, is subject to the

‘innocence at stake’

exceptions. It is a position, to adopt McLachlin J.’s phrase speaking for the Supreme Court of Canada in

R. v. Leipert

2 LRC 260 at p. 270

‘The right to disclosure is not to trump privilege’

. They must both be accommodated and prosecution counsel has a key role in this concord. However, when it comes to a stage where there is any doubt in the matter, it will be essential to get the ruling of the trial judge. Sometimes the matter will be straightforward. No doubt, judges allow claims of privilege in routine cases day in and day out without ever examining any documents. Other cases – this may be one – will be more complicated and then the judge or judges (as in the case of the Special Criminal Court) will examine the documents. However, I do not think trial judges should feel they have any obligation to look at documents in every case. That is why prosecution counsel’s role is so critical. While the prosecution cannot appear to be a judge in its own cause, it is common case that the role of counsel for the prosecution is very different from the role of counsel for the defence. The role of counsel for the defence is always to put the prosecution to the proof of its case and seek by every fair and just means for the acquittal of their client. By contrast counsel for the prosecution has an overall responsibility to assist in ensuring a fair and just trial.”

My firm impression from reading the judgment of the Special Criminal Court and from the general approach to the case by counsel for the prosecution is that every effort was made to achieve a fair trial. My impression, however, as such is not particularly relevant. To succeed in this appeal on the grounds of inadequate disclosure, the appellants would have to show that particular rulings by the Special Criminal Court were clearly wrong in law and that the Court of Criminal Appeal should have so held.

Not only does there not appear to be a legal infirmity in the disclosure decisions by the trial court but the court also seems to have gone out of its way to adopt fair procedures. There was a four day pre-trial hearing at which all issues were argued and there was substantial cross-examination. Disclosed material in its unredacted form was made available for inspection by the trial court and this was documentation in the custody of officers of the British Security Services. At this stage, the issue of privilege did not arise because the prosecution’s primary position was that these redacted portions of the material were not relevant to the defence. Therefore, if the trial court chose to inspect the documentation it would be for the purposes of deciding whether any of the redacted parts were relevant to the appellant’s defence or not. But if the trial court was to determine that any of the redacted portions were relevant it had been proposed to claim privilege over those portions. The basis of the privilege was that lives would be placed at risk and that therefore there should be a public interest immunity. If this stage had been reached, the court would have been furnished with full information as to the basis of the privilege claimed. But it would not have been disclosed to the defence. In the event, the appellant objected to the trial court inspecting any of the documents and objected also to the trial court having sight of any of the reasons for claiming privilege. At a later stage and during the trial, the court was requested by the appellant to view a few documents as to their relevance and the court held that the redacted portions were irrelevant.

With that history, it is difficult to see how the appellant can have a legitimate complaint as to the disclosure procedures adopted.

It was complained also of course that there had been piecemeal and late disclosure which prejudiced the right to a fair trial as there was not proper time to consider and prepare the defence. It is argued on behalf of the prosecution that no adjournment was ever sought for this purpose and that at any rate the only relevant late disclosure was those garda surveillance records which I have already mentioned. An offer to recall Mr. Rupert for further cross-examination was never taken up and the appellant dismissed his legal team bringing them back only at a much later stage.

In DPP v. Special Criminal Court, cited above, O’Flaherty J. made it clear that there was no obligation on a court to examine documents in dispute. That, of course, was always the law on the civil side. The court has a discretion whether to examine the documents or not.

With regard to the claim of privilege referred to in grounds 4, 5 and 6 of the notice of appeal, the main submission of the Director of Public Prosecutions is that the issue of privilege never in fact arose for determination by the trial court except for a claim asserted by the Deputy Commissioner Martin Callinan over intelligence reports. As already, mentioned, there were undoubtedly redactions made by the foreign agencies but the redacted material was viewed by counsel for the prosecution and it was not considered by him to be relevant to the defence. As I have already explained there was no objection to the trial court viewing the documentation to assess its relevance but it did not do so there having been objection by the defence. The issue of privilege was, therefore, never reached. During the trial, the court was requested to view five redacted documents. It examined the documents in an unredacted state and decided they were not relevant, therefore again the issue of privilege was not an issue a similar conclusion was reached by the Court of Criminal Appeal.

The evidence was that relevant documentation coming from the FBI and the BSS was provided to the Director of Public Prosecutions and disclosed to the appellant with the redactions clearly blacked out and, therefore, obvious. The BSS and FBI retained the unredacted material but were willing to show it to the trial court at any stage during the trial. The evidence established that the concept of relevancy within Irish law was fully explained to the agencies at a high level.

It must be accepted that in theory the FBI and/or the BSS could have cheated and withheld material that they knew was relevant. In assessing that situation, the trial court had to have regard to the overall attitude of the agencies. It would seem to me that the submissions of the respondent to the effect that those attitudes appeared to have been continually positive is correct. It could never be the law that if there was any conceivable possibility of some document being withheld that might be relevant there would be a risk of an unfair trial which would lead to a mistrial. That would be a wholly unbalanced view to take.

The appellant has been critical of the approach adopted by the Director of Public Prosecutions and by the foreign agencies in relation to assessing relevance but it is not entirely clear what alternative approach is being advocated. What has been criticised first of all is an averment by Chief Superintendent Callinan in an affidavit sworn by him at the stage of the pre-trial disclosure application in which he said the following:

“The prosecutor has furnished all documents in its possession, power or procurement which are of relevance to the defence of this prosecution, in that all the materials which might assist the defence in attacking the prosecution case or in the alternative in making a positive case of its own together with all material which may reasonably be regarded as providing a lead to other such information have been disclosed.”

In the same affidavit, the Chief Superintendent goes on to aver that “nothing in the material over which privilege is claimed is relevant within the test referred to at paragraph 3 above.”. That is the test which I have already cited. The appellant is critical of a similar approach to disclosure claimed in the affidavit of the officer of the FBI. In the case of the British approach, a barrister, Simon Denison, who was a Treasury Counsel with a great deal of experience in these matters behind him was engaged to take responsibility for the disclosure. He referred to the obligation to disclose “any document which could be of assistance to the defence in establishing a defence, in damaging the prosecution, or in providing a lead on evidence that goes to either of those things.” I cannot see anything wrong with these various formulations of what I think has always been considered to be the test. The defence seems to be relying in this regard especially on dicta of the English Court of Appeal in R. v. Judith Ward [1993] 1 WLR 619 at 645 which were as follows:

“We would emphasize that

‘all relevant evidence of help to the accused’

is not limited to evidence which will obviously advance the accused’s case. It is of help to the accused to have the opportunity of considering all the material evidence which the prosecution have gathered and from which the prosecution have made their own selection of evidence to be led.”

If the decision in the Judith Ward case means that there can be no selectivity as to relevance made by the prosecution authorities for the purposes of assessing their obligation of disclosure that does not represent Irish law in my view. There cannot be an absolutely foolproof system, there has to be an element of trust in relation to disclosure as indeed, of course, there always has been in relation to civil discovery. Indeed for the most part it was generally understood that leave to cross-examine an opponent on an affidavit of discovery would not normally be permitted.

This case undoubtedly had the unusual feature of the foreign agencies. But the problems associated with that feature appear to have been handled with great skill and fairness by the Irish authorities. They appear to have done their utmost to ensure that principles acceptable to the Irish courts would be adopted. Engagement by the British authorities of special counsel and the apparent approach by that counsel were clearly impressive. As was pointed out by Kearns J. in the judgment of the Court of Criminal Appeal, it was not in dispute that voluntary disclosure of a substantial amount of documentation had been made. It comprised 2,300 pages of emails and documents contained in four ring-binder folders. Most of the documents came from the FBI and the BSS and mostly contained email communications.

The judgment of the Court of Criminal Appeal details the information given to the British Securities Service and the Federal Bureau of Investigation as to the definition of relevancy in Irish law and of the manner in which each of these agencies apply these principles. I do not think it necessary to repeat all this evidence in this judgment but I think it is apposite to repeat the full ruling of the Special Criminal Court on the disclosure issue. It reads as follows:

“1. The court has no power to make an order that would compel the BSS or the FBI to make disclosure. Further, the court will not make an order as against any party which is not capable of enforcement.

2. Chief Superintendent Martin Callinan gave sworn testimony as to the existence of documents in the possession of the gardaí concerning Mr. McKevitt, the applicant in this case, which span a period of some 30 years. He claimed privilege relative to the public interest in respect of that documentation and has sworn both to us in his affidavit and to the court that he maintains that position. The court accepts, in its discretion, that that interest outweighs any other public interest in that regard and consequently will not order disclosure of such documentation.

3. The court has received the assurances of prosecuting counsel, Mr. George Birmingham, S.C. that in relation to all relevant domestic documents which are in the prosecution’s power, possession or procurement that the same had been disclosed to the defence and that the court accepts that assurance.

4. At this point in time, the court feels that no case has been made out that would satisfy the court that an order for disclosure in the terms of the notice of motion should be made.

5. The court has not examined the documents in unredacted form which have been voluntarily disclosed to the defence in redacted form for two reasons.

(a) The defence have objected to such inspection and examination.

(b) The court has exercised its discretion not to do so at this time having regard to the law herein before recited.

6. The court states there is a continuing obligation also on the prosecution regarding disclosure.

7. The court is mindful of its obligations and for all the reasons set out above refuse the applicants their application.”

In all the circumstances, I am satisfied that the approach of the trial court, as indicated above, was impeccable. The submissions on behalf of the respondent, both written and oral, urge on the court that the extent of the duty to disclose material has been definitively set out and approved by this court in DPP v. Special Criminal Court, cited above. That being so, the respondent has not entered into a detailed analysis of the English Court of Appeal judgment in R. v. Judith Ward [1993] 1 WLR, cited above. It would seem to me, however, that at any rate, the appellants have placed too wide an interpretation on the judgment in that case delivered by Glidewell L.J. The court accepted that the expression “relevant material” meant evidence which tended either to weaken the prosecution case or to strengthen the defence case, but that this necessarily involved the police disclosing to the prosecution all witness statements and that the prosecution was then under an obligation to supply copies of such witness statements to the defence or to allow them inspect the statements and make copies of them. There would seem to me to be nothing surprising in that proposition. It is referring to statements made by a person with a view to becoming a witness. The court also held that the prosecution were under a duty which continued during the pre-trial period and throughout the trial to disclose to the defence all relevant scientific material whether it strengthened or weakened the prosecution case or assisted the defence case and whether or not the defence made a specific request for disclosure. Again, this is essentially witness material, i.e., it is material emanating from an expert witness engaged for the purposes of the trial. It is understandable that the court took the view that the prosecution was not entitled to second-guess the usefulness or otherwise to the defence of such material, I am doubtful that there is any inconsistency between that decision and Irish law but if there is, the law of this jurisdiction must apply.

Turning again to the special problems relating to documents in a foreign jurisdiction and in the possession of a person or body residing in that jurisdiction, it is important, at the outset, to cite paragraph 4.13 of the written submissions of the respondent.

“To correct a point in the appellant’s submissions, a situation never arose that the foreign agencies refused to disclose any document to the court. The trial court never ordered them to make any further disclosure. Indeed in the course of his evidence in the disclosure hearing, Mr. Krupowski indicated that if there was a court order requiring the FBI to make further disclosure of a specific file which was then being referred to they would consider it.”

I have already observed that the evidence established that all reasonable efforts were made to explain to the foreign agencies the Irish law on prosecution disclosure and in the particular context of those agencies producing the documents which were “relevant”. One of the grounds of appeal is that the court of trial erred in law and in fact in failing to hold that the appellant’s trial had been rendered unsafe by the refusal of the Federal Bureau of Investigation’s agents who gave evidence at the disclosure hearing in October, 2002 to disclose documentation that was central to the credibility of the chief prosecution witness on unspecified policy grounds. This ground of appeal seems to me to have been satisfactorily answered by the respondents. It is pointed out on behalf of the respondent that the FBI objection to disclosing any remaining documentation was on the basis that it was not relevant. In the event, it was made clear at the trial that if the court ordered the production of any of this further documentation, they would reconsider their position. This arose in the context that Mr. Krupowski, on behalf of the FBI and in the course of cross-examination, told Mr. Hartnett, counsel for the appellant, that there was in existence a schedule of documents unredacted but that it was “classified”. He refused to show it to Mr. Hartnett but indicated that he would show it to the judges if the court so sought it. At that point, counsel for the respondent, Mr. Birmingham, pointed out that that offer had been made the previous day but that Mr. Hartnett had said that the court was not to see it. The presiding judge, Johnson J., agreed with that summation. It is necessary to emphasize again that controversy in relation to the foreign agencies appears to have related to relevance only and not privilege. Any controversy relating to relevance could only conceivably be resolved by the court looking at the documents but the defence requested the court not to do so.

I have already referred to the engagement by the British Security Service of an English Treasury counsel, Mr. Simon Denison, to go through their documentation and advise on relevance. There is nothing in the evidence to indicate that there was any element of either mala fides or negligence in this exercise and it would seem to be wholly appropriate.

It is important now to see what the Court of Criminal Appeal had to say about this.

The court was clearly impressed by the huge quantity of emails and documents which had been furnished on behalf of the FBI and BSS. The court also noted that the trial court had been informed that both the FBI and BSS had other material in their possession. The court, in its judgment, reviewed the steps which had been taken to educate the BSS and FBI on the Irish law of disclosure. The judgment went on to refer to evidence given by the then British Ambassador, Sir Ivor Roberts, and the evidence of Mr. Krupowski, mentioned above. The court in its judgment then made the following observation:

“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 U.S. 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.”

It would seem to me that that paragraph in the judgment, perhaps unconsciously, telescopes the issues of relevance and privilege. The refusal on the part of the U.S. authorities to produce some documents appears to have been based in the first place on relevance but if they did have to produce them to the court they would, in some instances at least, plead privilege in respect of production to the defence. For the reasons already explained, that scenario never arose.

The judgment of the Court of Criminal Appeal then made clear that the questions which that court had to consider were:

“(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.”

The court having adverted to a number of matters already covered by this judgment concluded as follows:

“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. …”

The court then went on refer to the famous principles laid down by Finlay C.J. in his judgment in Z v. Director of Public Prosecutions [1994] 2 I.R. 476 at p. 507.

I am in complete agreement with the view taken by the Court of Criminal Appeal in relation to the approach adopted by the trial court and it would seem to be a suitable point at which to give an affirmative answer to the question of law certified by the Court of Criminal Appeal.

One further comment in the judgment of that court is worth quoting. It reads as follows:

“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.”

Credibility

I now turn to the second of the three issues on appeal identified in the judgment of the Court of Criminal Appeal, that is to say, that the Special Criminal Court should not have found that David Rupert was a credible witness whose evidence could be safely relied upon. In my view, this ground of appeal must fail on the simple basis that the Special Criminal Court believed Mr. Rupert. That finding cannot be interfered with by an appellate court unless it was not open rationally to have had that belief or at least not to have had a reasonable doubt. If it had been a traditional jury verdict the question would have been was it a perverse verdict? I think it is impossible to conclude that the verdict was, in any sense, perverse or that it was not open to the Special Criminal Court to accept the evidence of Mr. Rupert. The fact that Mr. Rupert may or may not have had a shady background, depending on your point of view, and the fact that as a paid agent he might be suspect as a witness at any rate are neither here nor there, as far as an appellate court is concerned. Numerous criminal trials over the years have been conducted in circumstances where a key witness such as an accomplice, for example, has a background which might make his evidence suspect. If it was a jury trial, a jury would always be warned of the danger in relation to such evidence but it was never the law that in the last analysis the jury was not entitled to accept the evidence. In this instance, there is abundant evidence that the Special Criminal Court was fully mindful of the potential unreliability of Mr. Rupert’s evidence but nevertheless believed him. I do not see how that finding of belief can be overturned.

In fairness to the appellant, the main thrust of the attack on the credibility findings by the Special Criminal Court is the alleged inadequacy of reasons given for the belief and the omission expressly to deal with each of the credibility points against Mr. Rupert raised by the appellant at the trial. Strictly speaking these issues are not included in the three headings of appeal listed by Kearns J.

However, I find this criticism equally unjustified. It has never been the law that a trial court must trawl through every credibility point raised against a key witness and explain why it has rejected it in its judgment. Under the jurisprudence of the European Court of Human Rights, there would be a requirement for a judge who has listened to two opposing points of view in the same area to explain his reasons in a general way as to why he favoured one rather than the other. This could be especially so in a field of specialist expertise. But that is a long way from saying that every credibility point against a key witness must be expressly touched on and commented upon and dealt with in a judgment.

The Court of Criminal Appeal had this to say:

“As previously noted, this case is one which is agreed to be without precedent in Irish legal history. The seventeen day presence of the main prosecution witness, David Rupert, in the witness box is in one respect reflective of that fact. Over the course of fourteen days, he was cross-examined on virtually every aspect and particular of his personal life by eminent senior counsel before a court of professional judges with wide experience of criminal trials wherein the veracity and credibility of witnesses are habitually in issue. The greatest possible latitude was extended by the court to the defence in the cross-examination of David Rupert and this court marks its approbation of how rare and few were the interventions from the bench during the course of cross-examination. It may be therefore safely said that the greatest opportunity was availed of by the trial court because of the length of cross-examination in this case to assess the veracity and credibility of the main prosecution witness.”

That passage would seem to me to be very apposite. The court went on to review the detailed manner in which the trial court did, in fact, review the history of Mr. Rupert. The Court of Criminal Appeal concluded that the trial court had conducted a careful and balanced assessment of the evidence which had been presented and which of necessity had to be summarised in condense form in the judgment of the trial court. I also agree with this comment. The Court of Criminal Appeal, in its judgment, then referred to what was commonly known as “the collateral issue rule”. The court observed as follows:

“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.”

Another complaint which was made on behalf of the appellant was that Mr. Rupert had been dealt with as a special category of witness, somewhat analogous to a “supergrass”. Details of how this argument was spelled out are to be found in the judgment of the Court of Criminal Appeal and they were repeated before this court. The answer to this complaint is quite simple. It is perfectly obvious that the trial court was well aware that the evidence of Mr. Rupert had to be treated with caution and I think that the evidence indicates that that was done. The trial court, through Johnson J., delivered itself of a 52 page judgment on day 27 of the trial. The judgment is full of impressive detail. As far as the credibility of Mr. Rupert is concerned, the court listed the following areas to which it addressed its mind.

(1) His knowledge of the facts to which he testifies.

(2) His disinterestedness.

(3) His integrity.

(4) His veracity.

(5) Being bound to speak the truth by such an oath as he deems to be obligatory.

(6) The court’s overall opinion of the witness.

(7) Any evidence of corroboration.

(8) General.

The court then goes on to deal with each of these areas in detail. For instance on corroboration, the court found that the uncontested evidence of the finding of (a) the computer and (b) the guidebook on Yugoslavia in the McKevitt house and their identification by David Rupert as the computer he brought from the United States and as the guidebook he saw while installing a computer in the McKevitt house are corroborative of Rupert’s evidence as to his relationship with the accused and the accused’s family and home. The court also expressly found that the identification by Mr. Rupert of the accused’s house, the house in Oaklands and the house off the Greenore Road is corroborative of his evidence that he attended these locations and knew them. The court then found that the evidence of a number of gardaí relating to the attendance by Rupert at various meetings of the so called republican family, that is to say, the membership of the subversive movement in that direction over a number of years, supported Rupert’s evidence as to his closeness to that movement. In my view, the argument that the court was not entitled to believe Mr. Rupert is unstatable. In so far as any particular matters were referred to in cross-examination and are not referred to in the judgment that is not in any way a defect in the judgment. It is a careful judgment in which the correct approach is adopted.

Accordingly, I would reject the second, perhaps in the minds of the appellant most significant attack on the judgment.

Late disclosure of surveillance report

The third of the main headings of appeal orally put forward to the Court of Criminal Appeal was stated by the judgment of that court to be as follows:

“There was prejudice and unfairness to the appellant in the course of the trial arising from the late disclosure of a garda surveillance report relating to events on 17th February, 2000.”

Although at first sight, this is a discrete point, among numerous points, raised by the defence nevertheless it formed a major platform of the appeal. The respondent’s case has always been that a surveillance report of this kind is never disclosed to a defendant and that if sought, privilege would be claimed in relation to it, but that at any rate in this particular case, the report in question was never considered relevant until it was discovered in the course of the trial that contrary to the belief (and the prosecution would argue reasonable belief) of the prosecution the fact that the appellant and Mr. Rupert knew each other would not be an issue. As a consequence of cross-examination, it turned out that it was an issue. A very important step was then taken. A report was then disclosed. The respondent, on appeal to the Court of Criminal Appeal and in this appeal, is heavily relying on this fact as well as other matters to which I will be referring. In the meantime, it is important to outline the factual background to this dispute. It was undoubtedly part of the prosecution’s case that Mr. Rupert had met the appellant on several occasions where the activities of an unlawful organisation were discussed. It was indicated that it was intended to lead evidence showing that the appellant was at a meeting of the real I.R.A. Army Council in a house at Greenore on the 17th February, 2000. In the written and oral submissions on behalf of the appellant, the following points were made among others.

1. In his opening address to the court at the pre-trial hearing relating to disclosure, counsel for the prosecution had stated that Mr. Rupert attended an Army Council meeting in February, 2000 at which the appellant was present.

2. Mr. Rupert, in his statement of evidence contained in the book of evidence, said that he was at a meeting of the Army Council in Greenore when a sum of $9,000 was handed over to Mr. McLoughlin who was in charge of the finances for the real I.R.A.

3. The appellant’s attendance at this meeting was put to him in the course of his being questioned having been detained under section 30 of the Offences against the State Act, 1939.

4. An email sent by Mr. Rupert to his security handler indicated that he had been picked up by the appellant’s son, Stephen McKevitt, and driven to an Army Council meeting at 6.10 p.m. on 17th February, 2000 but did not indicate that the appellant was present at the meeting.

In the witness-box, however, David Rupert gave evidence that he did not remember whether the appellant was at the meeting or not. At the same time he gave evidence that he had been picked up from the appellant’s house by Stephen McKevitt, son of the appellant, and driven to the Army Council meeting. Because of particular sightings and timings in the Garda Síochána surveillance notes which were ultimately disclosed, it is submitted on behalf of the appellant that these notes contradicted the proposition that the appellant could have been present at this meeting in Greenore on the 17th February, 2000. The appellants refer in particular to a letter of the 12th June, 2001 seeking:

“Copies of any records of surveillance at or near each and every one of the locations put to the defendant at interview, whether in connection with the present case or otherwise. The appellant argues that the prosecution’s failure to disclose the surveillance report in advance of the trial rendered the trial unsafe. It is claimed on is behalf that the late disclosure of the material was not sufficient to remedy the failure of disclosure because the cross-examination of Mr. Rupert had already taken place. A further point is made that even if Mr. Rupert was recalled nevertheless the defence would have been denied the possibility of testing his credibility by confronting him with the contradictions.”

The appellant goes a step further by alleging a lack of good faith on the part of the Garda Síochána and indeed in black and white in the written submissions, it is stated that it appears that “David Rupert was encouraged to change his evidence in relation to the presence of the appellant at the alleged meeting at trial in light of the defence obtaining his email showing that the appellant was not present at the meeting, thereby indicating that somebody was aware of the contradictions between the email and Rupert’s proposed evidence. The submission goes on to state the following:

“However, the appellant did not change his evidence in relation to Stephen McKevitt’s movements on that date, presumably because the surveillance reports contradicting this evidence had not been disclosed to the defence. It is submitted that the Garda Síochána deliberately sought to withhold material that was damaging to Rupert’s credibility, and that any other interpretation of the events leading up to the disclosure of this material is simply not credible.”

It was certainly open to the trial court and indeed probably mandatory on it to reject speculative evidence of mala fides on the part of the Garda Síochána. Not only was there no direct evidence of it but the drawing of any such inference would not have been justified on such evidence as there was.

The response of the prosecution can be summarised as follows. The first point that is made (and it is an important one) is that the surveillance notes were in fact disclosed, albeit late, and that this indicates bona fides on the part of the prosecution. In particular, it vindicates their awareness of their obligation to continue to disclose relevant documentation throughout the trial. In the context of the pre-hearing on disclosure, the trial court approved of the withholding of (inter alia) documentation coming from intelligence sources on the basis that if the information was to be disclosed it could lead to identifying individuals etc. This had the approval of the court and the court refused to order such disclosure. As a consequence of that, the actual surveillance records were not disclosed but it was intended, according to the prosecution, that any material identified as relevant would be made known to the appellant by way of statements from the particular officers who observed it. It has been the respondent’s case that the particular surveillance report now considered important from the defence point of view was not originally considered relevant for the reason which I indicated. However, on day 21 and day 22 Detective Sergeant Healy, a surveillance officer, gave evidence that on the 18th February, 2000 in the course of his duty, he saw Mr. Rupert go into a house at Oaklands estate and that he later saw the appellant going into the same house. Later that evening, he observed the appellant and Mr. Rupert come out of the house together and talk to each other in the garden of the premises. As a consequence of cross-examination arising from that evidence, the respondent decided to disclose in a redacted fashion portions of the surveillance reports. In their written and oral submissions, the prosecution emphasized that “this was the first time in the history of the State that this type of material had been disclosed in a criminal trial.” What was being disclosed in the redacted fashion as portions of the surveillance reports which related to the appellant for the entire week around the 18th February, 2000. This meant there was a report of the 17th February, 2000 which read as follows:

“6.00 p.m. Stephen McKevitt was observed travelling from Blackrock towards the Dublin road in 98D 6057. He was alone in the car. At Dublin Road he turned left towards Castlebellingham. He did not travel as far as Castlebellingham. It is thought he turned off the road towards Dromisken. His car was not parked at Seamus McGrane’s house. He returned to Blackrock from the Dublin road direction at 6.18 p.m. and he was still on his own.

6.33 p.m. Vincent McKevitt arrived at Michael McKevitt’s house in 97D 20402. His car was still there at 7.10 p.m. Vincent’s car was gone at 7.35 p.m….

7.55 p.m. Michael McKevitt was seen in the front room of his house.”

The appellant argues that this document should have been disclosed earlier on the basis that it was a “crucial document” and that non-disclosure irreparably prejudiced the defence.

I am impressed by the respondent’s answer to these arguments. Put shortly, part of the respondent’s answer is that the prosecution was not making a case that the appellant had been present at a meeting of the Army Council on the 17th February, 2000 and that no evidence was led in that direction. It is, therefore, submitted on behalf of the respondent that the only significance which the report potentially had is that it could have been put to Mr. Rupert that his proposed statement of evidence was incorrect. That proposed statement had suggested that the appellant did attend the meeting but this was not his evidence in the witness-box. Furthermore, an email which had been produced contained a statement by Mr. Rupert that the appellant did not attend the meeting and this was in fact a contemporaneous account. However, the defence objected to it being produced at the trial. It was conceded that counsel for the respondent had said at the pre-trial disclosure hearing that Mr. Rupert claimed that the appellant had attended the meeting but since it was not repeated at the hearing, it is submitted that this was an irrelevant mistake. Although the precise timings do not correspond, it is pointed out that Mr. Rupert was not challenged in cross-examination as to his claim that Stephen McKevitt, son of the appellant, drove him to the location of the meeting. It is, therefore, argued with some force that the only use which could have been made of the document was to challenge the reliability of Mr. Rupert’s evidence as to the precise time when the particular events occurred. Most importantly of all, the respondent offered and the trial court indicated that it would direct that Mr. Rupert be recalled if the appellant so wished. Apparently, the appellant declined. In fact at that point, he dismissed his legal team. In my view, there was no unfairness in the trial arising out of any of this. What was involved was late disclosure in circumstances where the court was entitled to regard the lateness as bona fide. On the other hand, disclosure was made when it was realized that the documents gave some ammunition for cross-examination as to timing. If Mr. Rupert had been recalled, that cross-examination could have been pursued but, at any rate, it was for the purposes of credibility only. To quote the judgment of the Court of Criminal Appeal:

“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.”

That passage puts into perspective where this alleged late bit of evidence fits in. To suggest that because of that element of late disclosure, the trial was so unfair that the conviction should be quashed, seems to me to be far-fetched in the extreme and I can find no criticism of the trial court for proceeding with the trial accordingly.

While I have now dealt with the three headings identified in the judgment of the Court of Criminal Appeal, I think it appropriate specifically to refer to two discrete issues which featured heavily in the appeals. The first relates to what might be involved in the expression “trickinesses” appearing in the disclosure material. The second relates to a particular document described as “witness ‘C’ document”.

“trickinesses”

The document in which the word “trickinesses” appeared was a document disclosed to the appellant on the 14th June, 2002 and emanating from the British Security Service. It read as follows:

“At 17.00 on the 8th February, 2001, in response to a message left with his staff, AGS Chief Superintendent Dermot Jennings called me on the secure phone. I told Jennings it might help him to understand what we were trying to do regarding Rupert’s emails if I read to him an extract from one of them sent in 1998. I then read the extract which alleged Jennings expressing indifference to terrorism in N.I. and only been interesting in illegal activities in ROI. Jennings was shocked. He had expostulated that the statement was untrue and he would never have said any such a thing. I responded that the problem was that the allegation was there in the email and we now had to decide what to do about it. If the defence got hold of it and Jennings denied the report’s veracity that would make Rupert an untrustworthy source. Jennings urged that the report be removed. I said I felt strongly that this was a matter of liaison sensitively that justified redaction. I was discussing it with lawyers. There was a pause (presumably while the metaphorical penny dropped in Jennings’s brain). He suddenly became much more friendly. I explained there were a few more trickinesses in the paperwork that we were addressing.”

The respondent fairly makes the point that the actual disclosure of this document is “proof” (I would say more accurately “evidence”) of the fact that everything warts and all were disclosed. The respondent argues that if the intention had been not to make full disclosure to the appellant or if it had been the BSS’s intention to hide material, then the part of the email in which Mr. Rupert had alleged that Assistant Commissioner Jennings said he had no interest in terrorism in Northern Ireland would not have been disclosed because it could have been regarded as having no relevance at any rate. What actually happened was that the trial court examined the document and decided that the redacted parts were irrelevant to the defence. The author of the document and other relevant members of the BSS were made available for interview to the appellant’s counsel and were willing to give evidence but they were never called, even though the prosecution agreed that they could be cross-examined. The mere reference to “a few more such trickinesses in the paperwork” could not be regarded as in some way evidence of an unfair trial. The credibility of Mr. Rupert was, in the last analysis, a matter for the trial court and unless that court acted wholly irrationally in believing Mr. Rupert, neither the Court of Criminal Appeal nor this court can interfere with that court’s findings.

Witness ‘C’ document

I now turn to the “witness ‘C’ document”. I do not find it necessary to go into the details of this document. It is sufficient to state that the author of the document was made available to the appellant for interview and was interviewed by him and that he was prepared to given evidence, if called, but he was not in fact called. The document in question contained an account of how Mr. Rupert had relayed to the author “stories of smuggling activities that he was aware of emanating from North American Indian Reservations in Canada into the U.S.A.” It then goes on to recount stories about alcohol and tobacco smuggling by truckers out of the Reservations. The author indicated that he had formed the impression that the stories were based upon what he was aware of rather than what he was engaged in. This document was contrasted with minutes of a meeting where apparently, Mr. Rupert referred to “his earlier criminal and smuggling background”. It is, therefore, suggested that the “witness ‘C’ document” was fabricated by the British Security Service in order to water down the suggestion of Rupert’s criminality. While there could be some validity in the suspicions of the defence, there is nothing arising in the way this document may have featured at the trial which should lead either to a finding of an unfair trial or should render the verdict unsafe.

Conclusion

Fundamentally, there is no material difference between the view I take and the view taken by the Court of Criminal Appeal in the judgment delivered by Kearns J. For all the various reasons which I have

indicated, I believe the conviction to be safe and I would dismiss the appeal. I have already answered the certified question in the affirmative.

The People (DPP) v. McKevitt