Owing
to the inadequate disclosure of required documents
in Michael’s Dublin case, a number of disclosure
hearings took place in the Special Criminal Court.
In one disclosure hearing in 2001 disclosure was
denied due to the premature nature of the disclosure
application. Significantly one of the presiding
judges was O’Donovan J. who later took part
in Michael’s appeal. This same judge took part
in a number of the preliminary hearings prior to
the trial.
One
major impediment Michael faced in seeking disclosure,
pointed out by the Irish Courts, was that the Court
didn’t have jurisdiction to compel agencies
outside the state (MI5/FBI) to disclose any of their
files. However, the same court had no difficulty
in accepting evidence from a witness supplied by
these agencies. Equally, it was accepted that both
agencies conspired with Gardai in framing an Irish
citizen, yet it was unacceptable for an Irish citizen
to access vital information withheld by these agencies
that would enable him to prepare a proper defence.
This resulted in an unfair disadvantage to Michael’s
defence team.
Michael
also requested disclosure from the Irish authorities.
One disclosure document which he sought was the
document that detailed who exactly was responsible
for authorising the external agencies to operate
within the Irish jurisdiction. This request was
refused on National Security grounds. Bernadette
confronted Irish Taoiseach Bertie Ahern (recorded
by television crews) whilst he was electioneering
in Portlaoise town. She asked him if he or the government
were aware that MI5 were operating within the Irish
jurisdiction. He denied he or the government had
any knowledge of MI5 working within Irish jurisdiction.
If this is true, one must ask the question was the
arrest and subsequent conviction of Michael McKevitt
on the evidence of an MI5 agent lawful?
There
is no doubt that the non disclosure of vital documentation
created an unfair situation from the outset and
resulted in Michael’s defence team being handicapped
in preparing and properly structuring a preferred
defence case in a meaningful way. They were met
with obstacle after obstacle, consequently only
one result could emerge from such a trial.
Throughout
the pre trial hearings and the trial itself, in
an attempt to deflect from the non disclosure of
vital documents, the prosecution pointed to the
disclosure of thousands of other documents. However,
from a logical point of view the quantity of disclosure
documents is of little relevance, what is relevant
is the quality of the disclosure. In Michael’s
case the argument could be made that the documents
disclosed were misleading in content. Many of the
documents disclosed were heavily edited; others
were completely blanked out rendering them useless.
Although
the Defence did receive thousands of documents by
way of disclosure on various dates between 2001
and 2003, they also received documents while the
trial was in progress. There was no logical reason
why these documents weren’t disclosed from
the outset. All claims of privilege were fully accepted
by the trial court without being scrutinised by
the judges.
Over
two thousand e-mail reports supposedly between Rupert
and his handlers were disclosed as contemporaneous
notes but were not submitted as evidence. During
the trial it was discovered that many of them were
cut and pasted by someone somewhere before being
disclosed to the defence. The prosecution were fully
aware that the e-mails wouldn’t stand up to
scrutiny and that is why they were not submitted
as evidence.
Many
of the disclosed MI5 documents described Mr Rupert
as being financially motivated with a criminal past
and some described him as a liar. Other MI5 reports
outlined where Rupert described himself to his MI5
handler as a “whore” and a “mercenary”
who would do anything for money. One document described
where Rupert pointed out to his handler “tell
me what to do make it worth my while and as long
as the money is right I’ll do it to the best
of my ability…” Another report refers
to Rupert saying to his handler that “he
may have to perjure himself…” However
during Rupert’s cross-examination he described
the reports as inaccurate, incredibly his evidence
was accepted by the court.
Prior
to Michael’s trial his eldest son Stephen who
was helping him with the case was arrested and all
the documents relating to the case including the
book of evidence were seized by the ERU. The same
police officers involved in Michael’s arrest
were also involved in Stephen’s arrest. He
was held for two days and offered inducements to
give information against Michael whilst in custody.
He was released after two days. This is recorded
and complaints were sent to the state prosecutor’s
office. Not all of the documents taken at the time
of the arrest were returned.
In
June 2003 just before the trial was about to get
under way the Defence were informed by the DPP (Irish
prosecution) that Mr Rupert had given interviews
to a number of journalists in the US from as early
as 2001. The journalists were ghost writing a book
for Rupert from which he secured $1 million as an
initial payment. This detail was conceded during
his cross-examination and it was confirmed that
the package was solely dependent on a guilty verdict.
The Defence were also informed that all statements
and other disclosed documents to be used at the
trial were made available to the journalists by
Rupert between 2001 and 2003. The trial court seemed
to accept this development and indicated this in
their judgment by stating that Rupert needed the
money as insurance in case the FBI money dried up.
Initially
disclosure of the journalists’ interview tapes
were refused on the grounds of privilege. When this
was highlighted to the Irish Court they pointed
out that they didn’t have jurisdiction to order
disclosure. However, as the trial got under way
in Dublin the defence lawyers went to the US courts
seeking disclosure of Rupert’s interview notes
and tape recordings. The US courts had no hesitation
in ordering disclosure in the interest of fair trial.
Details
of this US court decision are available.
This was a landmark ruling in the US and is also
available on the web.
These
developments confirmed that the FBI withheld relevant
documentation and would also suggest that they were
withholding disclosure documentation. The information
on the book deal was available to the FBI when they
gave evidence to the disclosure hearing in October
2002. This information was obviously withheld from
the Irish court and Michael’s legal representatives.
The Irish courts ignored this issue and didn’t
even query why this information was withheld by
the FBI agents during the four day disclosure hearing.
After
the US courts ordered the disclosure of the interview
tapes, the FBI and MI5 informed the Irish prosecution
that they would be editing the journalists’
taped interviews before disclosing them to the defence
on the grounds of national security. Eventually
the edited taped interviews were disclosed and were
found to be of poor quality with many parts inaudible.
It was astounding that the journalists had possession
of the unedited versions of the interviews yet the
defence were denied the same on national security
grounds. Much of the detail contained in the interviews
between Rupert and the journalists conflicted with
Rupert’s statement of proposed evidence and
some of his evidence to the court. Interestingly,
Rupert also informed the journalists that the only
reason the Dublin trial was taking place was to
bolster the civil case in Belfast.
Other
details emerged which included an alleged arrest
for white slavery, which Rupert had forgot to mention
in his statement of proposed evidence. Rupert told
the journalists that he and another truck driver
had picked up two young run-away teenage girls and
had drove around for a number of weeks crossing
state lines before “off loading” one of
the girls. He claimed his colleague who had slept
with the other fifteen year old girl intended to
take her home to keep as a “puppy dog”!
When asked by the Defence why he had failed to mention
this arrest, he said he was not arrested! He agreed
he had been stopped by the police, handcuffed and
taken to the police station and questioned, however
he said he did not view this as an arrest. He claimed
in America things were done differently! This explanation
was accepted by the Irish court.
All
of this information should have been made available
earlier and there can be no doubt that it was deliberately
withheld until the very last minute. The defence
had no knowledge of its existence until the trial
had begun and were not in a position to examine
or have examined the tapes or their contents in
a timely manner.
Throughout
the
trial the non-jury Special Criminal court was
packed with FBI agents and members of the Irish
National Security Unit. In addition, a backroom
of the court was given over to members of MI5 to
use.
Whenever
the court was asked to enforce the defence request
for further disclosure documents it would refuse
such an order on the grounds that it did not have
the jurisdiction. In addition, it accepted assurances
from senior members of the Gardai that all the relevant
documents they possessed where already given over.
This proved to be untrue at a later stage in the
trial. Despite the obstacles placed in the defence
way the trial continued.
Rupert
was crossed examined for just over a week. During
that time his responses were limited and at times
contradicted his earlier testimony. He used “I
don’t recall” over 1000 times!
During
cross-examination Rupert revealed that the British
Security Services (MI5) trained him over the previous
few years and coached him in the lead up to the
trial. During cross-examination he admitted that
he was coached on ‘court etiquette’. Throughout
the trial it was abundantly clear that he was directed,
influenced and financed, primarily by MI5 and also
by the FBI. Undeniably on Rupert’s own evidence
he was career informant since 1974 and was financially
motivated throughout his adult life. However, the
wider sections of the print media ignored it. One
would have thought that the blatant abuse of the
law would leave a considerable sense of unease amongst
those who profess to value the independence of the
rule of law in Ireland, however in relation to Michael’s
case their silence has been deafening.
After
Rupert left the box, a number of Gardai from the
National Surveillance Unit gave evidence that they
had observed Rupert and others including Michael
enter a house in Oakland park, a local authority
housing estate in Dundalk. They stated they had
remained there until Rupert and Michael left. The
purpose of their evidence was to corroborate Rupert’s
evidence. However, each of the three gardai contradicted
each other, Rupert and their own original statements
during their evidence in chief! When cross examined
it was confirmed that they did not make their original
statements, which incidentally were identical, until
a year after the alleged meeting
took place and a month after Michael’s arrest.
It
transpired during the cross examination of a senior
member of the unit that there were no written contemporaneous
notes of the alleged incident. Instead he explained
that he had stood in an adjoining laneway, recording
his observations onto a Dictaphone tape, whilst
at the same time he was in radio contact with the
other members of the team receiving their observations
and recording them onto the tape also. He also claimed
that he left his location to follow Rupert by car
to another location twenty minutes away yet still
made it back to the original location in time to
take up his position and record his observations
and the observations of the other unit members as
Michael left the house. He confirmed there was no
photographic evidence as they didn’t have a
camera that could take photographs in the dark!
He appeared to be embarrassed when the defence produced
copies of photographs of the same street taken at
night by a photographer employed by them.
Incidentally
another member of the team stated that he had observed
the comings and goings of Rupert and Michael while
hiding behind a curtain in a van parked in a lay-by
in the street where his view was further hindered
by a wall and a tree yet he claimed he could see
clearly. He also admitted to having no watch or
pen or paper to record accurately his observations.
Bear in mind these were members of the elite national
surveillance unit who according to them had prior
knowledge of the meeting taking place yet came unprepared.
When
the senior member was asked if the original tapes
could be produced to the court he claimed the tapes
had been wiped after he had transferred the information
onto a personal organiser. When asked if the personal
organiser could be produced he said it broke after
he had transferred the information onto a computer
in Garda headquarters. He stated that it was from
this computer containing the surveillance log that
the members of the unit made their identical statements
a year later.
This
surveillance log had been withheld from the Defence
team despite the numerous requests for relevant
disclosure documents over the previous two years.
The prosecution claimed they were unaware of its
existence. Yet, the gradai when asked by the defence
to produce it were able to furnish the defence with
an edited copy approximately an hour later.
The
surveillance log consisted of two pages that contained
the surveillance observations of that week including
the night in question.
The
entries of the Oakland Park observations were short
and did not correspond with the elaborate detail
given by the gardai in the court. Furthermore they
were disjointed and not in sequence with the rest
of the log. Michael’s solicitor James MacGuill
studied the other details contained in the week’s
log and found what was clearly alibi evidence for
Michael. The document placed Michael in the front
room of his home at the time when Rupert stated
he had met him at an IRA Army Council meeting on
the 17th February 2000. It also contradicted Rupert’s
evidence in Chief were he said he had been picked
up from McKevitt’s house and driven to the
meeting house by Michael’s son Stephen. The
surveillance report did not record Rupert anywhere
near McKevitt’s home that evening. Furthermore,
it logged Stephen McKevitt driving alone in a southern
part of the county at the same time Rupert had claimed
he had taken him to a house north of Dundalk.
The
defence team protested to the court that this relevant
document should have been disclosed. They questioned
what else was being withheld. They stated they could
no longer provide a proper defence for Michael as
their strategy had been irreparably damaged. They
moved for the trial to be stopped. The court refused
and ordered that the trial should proceed. The defence
called for the court to dismiss itself, as it had
not ordered an investigation into the circumstances
surrounding the withholding of this document to
determine if in fact there were sinister reasons
behind the nondisclosure. This was refused also.
After
consulting with his legal team, Michael found he
had no option but to dismiss his legal team and
withdraw from the case. He addressed the court detailing
his reasons for withdrawing citing the proceedings
as nothing other than a ‘show trial’.
He stated he was told by a senior Garda at the time
of his arrest that the decision to frame him was
a political one. He stated that he was withdrawing
from the ‘show trial’ with his dignity
intact.
The
trial continued in the absence of the defence and
the defendant. Michael remained in his cell beneath
the court refusing any requests from the court to
attend. At one point the court ordered that he be
taken before the court. A number of guards tried
to forcibly drag Michael up the stairs into the
dock. However Judge Johnston realising the spectacle
unfolding halted the course of action ordering that
Michael should not be harmed and that if he chose
to remain in the cell that was his choice.
The
remaining prosecution witnesses were hurriedly dealt
with without any challenge to them. In the lengthy
judgement at the conclusion of the six-week trial,
the court said they were impressed with the performance
in the witness box of David Rupert, the chief prosecution
witness. Mr Justice Johnson presiding said that
the court was satisfied that Rupert had a considerable
knowledge of the republican movement. However during
his evidence Rupert didn’t say anything, which
would indicate that he was an expert on Irish Republicanism,
on the contrary anything, which emerged in his evidence,
is freely available in the public domain, and would
be common knowledge by anyone even loosely associated
with Irish Republicans since 1992 as Rupert was.
The
court was particularly struck by the witness’s
ability to recall on day 4 and day 19 of the trial,
the seating arrangements of the first meeting where
he allegedly met McKevitt in the foyer of the Four
Seasons Hotel in Monaghan. “Overall he had
very considerable knowledge of the facts to which
he testified”, the court found. However, the
special non jury court didn’t check the layout
of the Hotel. Nor were any witnesses put forward
by the state to verify what Rupert had stated. In
fact the Defence had employed an engineer who would
have proven Rupert’s description of the Hotel
Foyer was inaccurate. However, his evidence never
was heard, like the other defence witnesses evidence
because of Michael’s withdrawal from the trial.
It was therefore the court’s duty in the absence
of a defence to eliminate any doubts by seeking
corroboration. Instead they accepted Rupert’s
uncorroborated evidence.
At
no time was it denied that Rupert was at the McKevitt
home in Blackrock, in fact Michael’s defence
lawyer Mr Hartnett S.C. during the cross-examination
of Rupert did confirm that he was in contact with
Michael’s wife. Michael’s wife Bernadette
was due to give evidence to the court as a defence
witness.
Given
that Rupert was a ‘co-operating witness’
his evidence in court had the advantage of extensive
and careful rehearsal with the MI5 and FBI intelligence
agencies for almost 3 years before the trial. However,
none of these issues mattered to the court and his
performance certainly impressed Judge Johnston and
his two colleagues O’Hagan and O’Reilly.
On one hand the Special non jury court found that
Rupert was “a very truthful witness”.
This was in stark contrast to the opinion of the
head of the Garda Crime and Security branch Dermot
Jennings, who, in other circumstances, found him
to be a “liar” and a “bullshitter”.
(MI5 Disclosed documents)
