SBP - McKevitt verdict and the shadow of bad law

Sunday Business Post
Sunday August 10, 2003

McKevitt verdict and the shadow of bad law
By Ross Maguire

The conviction of Michael McKevitt by the Special Criminal Court on charges of directing terrorism and membership of an unlawful organisation was greeted with almost universal acclaim, but the verdict gives rise to issues of concern in the operation of our system of criminal justice.

Nobody could deny the right of society to protect itself from attack and to prosecute the perpetrators of terrorism. On the other hand, the method and system of that prosecution is of the most profound importance for society. If the method and its operations are deficient or questionable, the system of criminal justice itself is weakened.The inevitable result must be that society itself, in the form of a liberal democracy, is undermined.

The Special Criminal Court, which by definition removes the right to trial by jury, is, with the exception of the Diplock courts in the North, unique in the common law world. Trial by jury is a cornerstone of our criminal law system. It ensures that twelve members of the community - each of whom brings to the process the benefit of his or her life experience - determine the guilt or innocence of a person charged with a
criminal offence.

It is no exaggeration to say that for any totalitarian regime to exist, two institutions must be abolished: the democratically-elected parliament and the right to trial by jury. For a constitutional democracy to remove one of these institutions, the reason must clearly be compelling. However, the argument for the existence of the Special Criminal Court is essentially one of convenience.

A non-jury court is more convenient for the prosecution primarily because the risk of intimidation of jurors is eliminated. However, the evidence of threat to juries in this jurisdiction is weak and insubstantial. In any case juries can be protected either through anonymity or, for example, through the use of a videolink procedure.

In addition, studies have consistently shown that the prospects of conviction are increased where there is no jury. While this does not in any way cast any aspersion on the work of the Special Criminal Court, it does give rise to an adverse impression regarding trial by that court.

Apart from the absence of a jury, the legislation comprising the various Offences Against the State Acts permits the admission of evidence which would be inadmissible under the general rules of evidence. A chief superintendent may give evidence as to his belief that a person is a member of an unlawful organisation and, in certain cases, this is enough to obtain a conviction. It should be stressed that this is not the evidence of an expert in a recognised field of scientific knowledge. In almost all cases, the belief of the chief superintendent will be based on hearsay or other inadmissible sources.

For the defence, the opportunity to cross-examine the chief superintendent to test the substance on which his belief is based will be frustrated by the inevitable claim of privilege over the sources of the information. It may well be that the chief superintendent really does believe that the accused is a member of an unlawful organisation, but that in itself is meaningless.

If the basis upon which the belief is formed is not capable of being tested in any real way, this gives rise to - at the very least - an obvious unfairness and, at worst, a real injustice. It is probable that this provision would be held to be incompatible with Article 6 of the European Convention on Human Rights.

The Offences Against the State (Amendment) Act 1998, introduced in the aftermath of the Omagh bombing, restricts the right to silence in that it permits a court to draw inferences adverse to the accused, where the accused has failed to answer any question material to the investigation. That inference can be used to corroborate other evidence, which will almost certainly be the belief of the chief superintendent.

The act also permits a court to draw inferences from a failure by the accused to mention, during the course of questioning by gardai, any fact subsequently relied on at the trial. That inference can also be used to corroborate other evidence, again almost certainly being the belief of the chief superintendent.

These inference-drawing provisions carry a real and substantial r isk of injustice. Taken together with the nature of the Special Criminal Court and the admissibility of evidence of belief, that risk is unacceptably high.

Other provisions in the 1998 Act include the requirement on the defence to disclose to the prosecution the names and addresses of all witnesses proposed to be called, and the establishment of the new offence of directing an unlawful organisation. The act is silent as to what constitutes "directing".

The evidence against McKevitt consisted of the opinion of a chief superintendent as to membership of an unlawful organisation and the evidence of David Rupert, a witness paid handsomely and afforded protection. The court distinguished Rupert from a supergrass or informer by describing him as "a contracted and paid agent of the FBI" and as "a witness under protection."

Before a judge and jury - and operating under the normal rule of evidence - the case against the accused could only be described as weak. The evidence of the chief superintendent would be inadmissible and Rupert, as he was being paid, could not be seen to be entirely independent. Given that the prosecution is required to prove its case to the standard of beyond reasonable doubt, it is not difficult to envisage the defence.

Lawyers acting on behalf of McKevitt had sought disclosure from the prosecution of documents relating to Rupert. While large quantities of documents were handed over before the trial, McKevitt's lawyers were concerned that they had not been given full disclosure. An application was made to the Supreme Court but that court ruled that disclosure was properly a matter for the trial judges. Applications were then made to the Special Criminal Court before the trial for full disclosure.

During the course of the trial, documents came to light that had not been disclosed to the defence. The judges themselves inspected the documents concerned before deciding whether or not the documents were relevant and ought to be disclosed. This is clearly unsatisfactory.

It must be a matter for the defence to decide on what is relevant to the case it has to meet. It is the defence lawyers, not the judges, who are responsible for the presentation of the defence, and it is the defence alone which can determine what documentation is relevant to its case.

The judges may see documents not disclosed to the defence and then have to decide the facts of the case while attempting to put out of their minds the documents that they have seen. Where such a situation arises in the case of trial by jury, the jurors would be unaware of the existence of the undisclosed documents, so there would be no possibility of being affected by those documents or of any perception that they had been so affected.

Rupert gave evidence that he had been at a meeting of the Army Council on February 17, 2000. He said McKevitt was in attendance and had handed over money given to him by Rupert. This coincided with Rupert's statement in the book of evidence.

However, Garda surveillance documents not disclosed to the defence prior to trial but disclosed during the course of the trial put McKevitt at home at the time that Rupert said he was attending the Army Council meeting. Additionally, while emails from Rupert had recorded his own attendance at the Army Council meeting, he had made no reference to the presence of McKevitt at the meeting.

In those circumstances, the defence claimed that these - and perhaps other documents - had been withheld. They argued that all documents ought to be disclosed to them prior to the trial to allow them to scrutinise and cross-reference them. Such scrutiny and cross-reference would simply not be possible during the trial and might well determine the strategic approach to the trial.

The court refused the defence application for a direction staying the indictment on the basis of non-disclosure. The court held that the problem could be overcome by recalling Rupert. In the event, Rupert was never recalled.

The problem of disclosure in criminal trials is not confined to trials in the Special Criminal Court and is due to the absence of any statutory framework providing rules and procedures.

However, the proble m is greatly exacerbated when judges are required to act as judge and jury.

In the circumstances, despite the inconveniences involved, it is arguable that trial by jury ought not have been abandoned. The maxim that hard cases make bad law is both true and important. Draconian provisions which alter the principles and foundation of our legal system may serve in the long run to undermine that system and give rise to perfidies not initially contemplated.

Ross Maguire is a practising barrister