The Supreme Court has refused an application by Mr Michael McKevitt, the alleged leader of the "Real IRA", for leave to take a legal challenge to the refusal of further disclosure of documents relating to FBI agent Mr David Rupert, the main witness against Mr McKevitt in his forthcoming trial.
The decision means Mr McKevitt's trial on charges of directing terrorism and IRA membership can proceed on June 18th next before the non-jury Special Criminal Court.
Mr McKevitt (51), with an address at Blackrock, Dundalk, but currently in custody in Portlaoise Prison, is the first person in the State to be charged with the offence of directing terrorism. He is charged with doing so between August 29th, 1991, and March 28th, 2001.
After a four-day hearing last year, the Special Criminal Court (SCC) refused an application by Mr McKevitt for further disclosure of documents, particularly material in the possession of the British security services and FBI relating to the credibility of Mr Rupert.
Mr McKevitt has received substantial documents relating to Mr Rupert but his lawyers were unhappy both with the manner in which that material was disclosed and the extent of it.
During the hearing of McKevitt's application to the High Court for leave to challenge the SCC's refusal, Mr George Birmingham SC, for the DPP, argued the DPP had met his disclosure obligations in full and claimed the application was an effort to prevent Mr McKevitt from ever being tried.
Last January, the High Court refused leave to Mr McKevitt to take the judicial review challenge. Mr Justice O'Neill found Mr McKevitt had established no arguable case in law on foot of which leave could be granted.
Yesterday, the five-judge Supreme Court unanimously dismissed Mr McKevitt's appeal against the High Court decision.
Giving the court's judgment, the Chief Justice, Mr Justice Keane, said the High Court's refusal of leave was "entirely correct" and it was not appropriate for the Supreme Court to grant leave for judicial review proceedings which would have the effect of restraining Mr McKevitt's trial.
Whether the SCC's decision refusing further disclosure was right or wrong, it was made within that court's jurisdiction and reached in a manner which was fair. It should not be interfered with by the Supreme Court.
The issue of discovery might arise again during the trial and the SCC might be asked to make further rulings, the Chief Justice said. Mr McKevitt had the option of appealing against any such decisions.
The Chief Justice said Mr McKevitt's lawyers had criticised the absence here of a prosecution procedure for cataloguing or indexing discovery documents which, it was contended, would give a concrete reality to the disclosure process. The Supreme Court took no view as to the desirability for such a system and how it might be introduced. It was not necessary to take a view because of the Supreme Court's decision that it was within the SCC's jurisdiction to deal with discovery as it had.
Earlier, Mr Hugh Hartnett SC, for Mr McKevitt, argued the disclosure procedures adopted by the prosecution were inappropriate and unfair and would deprive his client of a fair trial.
The only evidence against Mr McKevitt in relation to the directing terrorism charge was the evidence of Mr Rupert, the "paid agent" of the British security services and FBI. Material regarding Mr Rupert was in the control of foreign agencies over which the Irish courts had no jurisdiction.
Mr Hartnett said some material had been disclosed "hinting at David Rupert's prior criminal activity" but his side suspected there was more such material that had not been disclosed. Mr Justice Hardiman remarked Mr Rupert had no convictions. Mr Hartnett said his side suspected a decision had been made not to prosecute Mr Rupert because he was "of some use" to the FBI.
