The Framing of Michael McKevitt

By Marcella Sands

 

 

Preliminary hearings

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 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 17^th 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)

 

 

Michael McKevitt Justice Campaign