Michael McKevitt, the alleged leader of the "Real IRA" and first person in the State to be charged with directing terrorism, has brought a High Court application to compel the disclosure of documents relating to the credibility of the main prosecution witness in his trial.
FBI agent David Rupert has received £297,647 sterling and $250,000 for his "services" to date, Mr Justice O'Neill was told.
It was also claimed the British Security Services (BSS) had "successfully and deliberately" misled prosecution counsel in Dublin into a belief that there were no acknowledgements of criminality on the part of Mr Rupert, during a recent discovery hearing in McKevitt's case before the Special Criminal Court (SCC).
"This illustrates the dangers in accepting assurances from foreign investigating authorities, whose standards of probity are at the very least questionable and whose conduct in this case has been demonstrated to mislead both the prosecution authorities here and the SCC," Mr James MacGuill, solicitor for Mr McKevitt, said.
Mr McKevitt (51), with an address in Blackrock, Dundalk, Co Louth, is in custody awaiting trial before the non-jury SCC next February. He is charged with membership of an unlawful organisation, otherwise "Óglaigh na hÉireann", and with directing terrorism between August 29th, 1991, and March 28th, 2001.
The SCC recently refused an application by his lawyers for the disclosure of documents, particularly material in the possession of the FBI and the BSS relating to Mr Rupert.
At the High Court yesterday, Mr Hugh Hartnett SC, for Mr McKevitt, sought leave to apply for orders quashing that refusal and preventing any further steps in Mr McKevitt's prosecution until the disclosure matter is determined. The hearing of the application resumes on Thursday before Mr Justice O'Neill.
In an affidavit, Mr MacGuill said certain documents furnished to the defence to date "show very clearly that a great deal of material relating to David Rupert has been redacted and/or edited by people involved in the evidence-gathering process".
Various aspects of documents disclosed to date "have been treated in such a manner as to erase significant portions of the material in such a way as to make them incomprehensible", Mr MacGuill said.
He said the credibility of Mr Rupert would be the principal issue in McKevitt's prosecution. It appeared Mr Rupert had been investigated on at least two occasions in relation to crimes of dishonesty "and that he appears to have had a lifelong association with criminality". There were "vague" references in papers to his being involved in the smuggling of drugs, aliens and it appeared, in relation to a specific allegation of the fraudulent passing of cheques, that the FBI had decided to discontinue that investigation about the time Mr Rupert became an FBI agent.
It was an essential requirement of any fair trial process that Mr Rupert be closely scrutinised as to his credibility and bona fides. Such members of law enforcement agencies here, in Britain and the US, who might have had an interest in the gathering of evidence from Mr Rupert, should be similarly scrutinised as to the means by which they obtained testimony and on what basis his evidence was given to them.
A number of motions had been brought before the SCC because of the "irregular disclosure arrangements" devised by the prosecution. Mr MacGuill said he received the original disclosure in a box. The prosecution had to date failed/and or refused to inform the defence of the reasons for editing and redactions in documents.
No information had been disclosed relating to the relationship between Mr Rupert and the Garda, notwithstanding it being apparent from other materials that there was extensive contact between him and members of the force. It was alleged Mr Rupert did not receive any monies from the Garda but there was clear evidence that senior officials in the Garda took a sceptical view of Mr Rupert's bona fides and his motives for providing information to agencies in the Britain and US.
Mr MacGuill said the DPP has not been given all the material in the possession of the BSS relating to Mr Rupert. That material had not even been disclosed to leading prosecution counsel, Mr George Bermingham SC.
It was a unique feature of this case that a UK Treasury Counsel, Mr Simon Denison, was the person charged with evaluating material held by the BSS in the matter, the solicitor added. It was Mr Denison and not the DPP who had the role of deciding what might be disclosed to the defence in a criminal trial in Ireland. Mr Denison had already told the SCC he could not say he had been given all the relevant material.
It was also clear from documents related to meetings between the BSS and Assistant Garda Commissioner Dermot Jennings, which were opened to the SCC, that a senior member of the Garda was prepared to withhold disclosure of a document from the defence as it impugned the credibility of Mr Rupert, Mr MacGuill added. From that same document, it appeared the BSS was prepared to redact and/or edit that document so as to remove material which would impugn Mr Rupert's credibility and to do that on the grounds of "liaison sensitivity" This document was not initially disclosed to the defence team but was later provided and Mr Denison had conceded such material "read unhappily".
Where material harmful to the credibility of Mr Rupert existed, the BSS had suggested bringing into evidence a further statement casting doubt on alleged admissions by Mr Rupert of involvement in criminality and suggesting such comments had been misunderstood or misreported.
It was clear from a summary document provided by Mr Denison that whatever documents were viewed by Mr Denison contained "unqualified admissions of criminality on the part of David Rupert", Mr MacGuill added.
Such admissions were unhelpful to the prosecution but the defence had not been given the source documents from which the summary document was prepared. Mr Bermingham had told the SCC it was not true that Mr Rupert had acknowledged his criminal past and the effect of that intervention was to suggest there was no acknowledgement of criminal conduct on the part of Mr Rupert.
Mr MacGuill claimed the BSS, recognising the great difficulty a document relating to Mr Rupert's alleged acknowledgements of criminality posed, had immediately brought into existence a further statement attempting to neutralise what they had to disclose.
