Double Miscarriage of Justice?

national | crime and justice | opinion/analysis Tuesday September 08, 2009 21:15 by I. Greene

By all accounts it appears that members of the Gardai were not truthful in their dealings throughout Michael McKevitt’s case. The latest conflicting evidence between two senior Garda officers certainly warrant an immediate investigation to identify if flawed evidence also contaminated the civil case in Belfast, resulting in a double miscarriage of justice.

Not surprisingly, both sides in the Omagh civil case have appealed the outcome. The yearlong case returned a result, which favoured the plaintiffs and found that four of the defendants were liable. The evidence used against the four men was highly questionable and certainly not convincing. Several aspects of the case left too many questions unanswered and the judgment didn’t resemble anything that could be described as closure. By any stretch of the imagination, due process was not the winner in this case and it was left entirely tainted and unfinished. While civil cases require lower standards of proof [58%], the evidence throughout this particular case came in well short of the required standard. When the judgment was read out the Plaintiffs’ in the case were relieved, it was a result that they had not been confident of securing, their spokesperson said afterwards to the waiting media. This was a good indication of how unconvincing the entire case unfolded.

The Rupert evidence alone needs a fresh examination in the forthcoming appeal. David Rupert refused to cooperate in the civil case fearful of a cross-examination. Initially he had agreed to give evidence by video link only be advised later by his handlers to withdraw his cooperation.

Significantly, Mr Justice (Sir) Declan Morgan conceded in the civil case judgment that David Rupert wasn’t totally honest with his evidence in the Dublin trial of Michael McKevitt, yet Morgan allowed the same evidence to be used (uncontested) in the civil case.
Apart from Mr Justice Morgan’s observations on Rupert’s ‘questionable evidence’ from the Dublin trial, other evidence which emerged during the civil case should have categorised all the uncontested evidence as unreliable.
Statements from five former senior police officers in Upstate New York revealed that Rupert was a lifelong criminal and not worthy of belief in any court of law. The statements also revealed that the FBI did not request details on Rupert from the police in the area before the McKevitt trial. In fact, according to the police officers the FBI were aware that the entire police force in the Upstate New York area knew that Rupert was involved in criminality yet they decided not to divulge this information in McKevitt’s trial.

Other significant revelations show that between 2001 and 2003 David Rupert met with three journalists in the US and several interviews were carried out. The interviews were conducted with a view to publishing a book on Rupert’s ‘work’ as an informant. It is believed [not confirmed] that the book venture was to be financed by Lord Conrad Black a former Tory peer who was later imprisoned in the US for embezzlement.
Rupert gave selected details of his own background to the journalists about his time in Ireland and his ‘work’ as an MI5 informant. The tapes (which were of poor quality) of the journalists’ interviews were subsequently disclosed to McKevitt during the trial in 2003 and details have since filtered into the public domain. As a result of the disclosure of the interview tapes, the book project was abandoned after the journalists’ feared that the content of the interviews with Rupert would become public knowledge.
Significant aspects of the interviews revealed that Rupert was an unreliable witness and someone who manipulated every situation for his own financial gratification.
During the interviews, Rupert outlined personal details including the family bigotry ‘…We were prejudice against Catholics…’ he also told how his family had a long association with the Klu Klux Klan. When Rupert was asked to describe what religious upbringing he had, he revealed, ‘We had no religious upbringing.’
However, in the judgment from McKevitt’s 2003 trial the non-jury court found that because of Rupert’s evidence of his religious upbringing and his moral teachings, this rendered him, a believable witness.
The interview transcripts also reveal that he told the journalists how his handlers assured him that McKevitt’s trial in Dublin was a foregone conclusion, specifically designed to secure a favourable result for the Omagh civil case. Rupert also revealed details of the coaching he received for the Dublin trial by an MI5 financed consultancy firm.
He was the pivotal figure who supplied the ‘evidence’ in McKevitt’s trial with the remaining essentials added to corroborate the ‘evidence.’ Scrutiny of the trial transcripts clearly reveal that the evidence provided by Rupert was compiled of opinionated and innuendo without any verification whatsoever.

Further disturbing detail to surface in the civil case emerged on 16th October 2008 during the cross-examination of Assistant Garda Commissioner Dermot Jennings. The cross-examination revealed that serious conflicts were evident between Garda evidence in McKevitt’s 2003 trial in Dublin and in the civil case in 2008. In 2008 during cross-examination Mr Jennings was asked by defence counsel Michael O’Higgins S.C if the Gardai retained a file on David Rupert. Jennings told the court ‘yes we have a Rupert file…and I viewed it before I came here today.’ He also confirmed that the Gardai opened the file during the mid 1990’s and it was held in the ‘Crime and Security Branch section.’ Up to that point however, McKevitt’s lawyers had been assured that the Gardai retained no files or reports on David Rupert.
Mr Jennings evidence was in conflict with previous evidence given by his colleague senior Garda Martin Callinan (now Assistant Commissioner). In October 2002 during a disclosure hearing Mr Callinan under cross-examination told the court that he was in charge of all files retained in ‘Crime and Security Brach’ and he confirmed that ‘The Gardai have no files or other documentation on David Rupert.’
The conflicting evidence between the two senior Gardai, Jennings and Callinan clearly suggests that something was seriously wrong with the Garda disclosure process in the McKevitt case. It would also appear that one of the senior Garda officers was dishonest while giving evidence in the case. Evidently, either Callinan in 2002 or Jennings in 2008 gave misleading evidence to the court during the cross-examination.
A source close to McKevitt’s legal team confirmed that they received no disclosure on David Rupert from the Gardai at any time and they were informed on several occasions that none was in existence.

During the trial in 2003 a Garda surveillance document was disclosed towards the end of the hearing. The document revealed that the Gardai were in possession of information that contradicted Rupert’s evidence and his proposed evidence. The surveillance document was withheld from McKevitt’s defence team for more than two years and was only produced after Rupert had left the witness box.

By all accounts it appears that the Gardai were not truthful in their dealings throughout McKevitt’s case. This latest conflicting evidence between two senior Garda officers would certainly warrant an immediate investigation to identify if flawed evidence also contaminated the civil case in Belfast, resulting in a double miscarriage of justice.
End.