In
December 2006, Michael McKevitt was informed that
a hesitant Mr Justice Morgan had recommended that
he should be granted limited legal aid to make
submissions outlining his defence in the Omagh
bomb civil litigation. The limited legal aid was
restricted to preparing and drafting submissions
on three points only,
- in
the matter of the evidence of David Rupert,
-
in the matter of being sued in the representative
capacity and
- in
the matter of issues arising out of the Sean
Hoey case.
On
20th December 2006, Mr Justice Morgan directed
the Court service in Belfast to inform Mr McKevitt
that he acknowledged points outlined in a letter
to him dated 14th November 2006. The letter, one
of many sent by Mr McKevitt to Mr Justice Morgan,
outlined that the evidence against him contained
in Rupert's e-mails was fabricated. The letter
also pointed out that Michael McKevitt would be
contesting the entitlement of the plaintiffs to
sue him in a representative capacity on behalf
of the (R)IRA. Issues were also raised in the
letter into aspects of the trial in Belfast of
Mr Sean Hoey. Over the previous two years Mr McKevitt
continually pointed out in his letters to Mr Justice
Morgan that as a result of the denial of legal
aid to him his fair trial rights at common law
was being breached.
For
over two years, although Mr Justice Morgan refused
to acknowledge the letters, Mr McKevitt continued
sending them, highlighting the breach of his rights
on each occasion. Eventually Mr Justice Morgan
relented, and reluctantly made the recommendation
to grant legal aid but in limited form only. Although
the gesture by Mr Justice Morgan was a smokescreen
to disguise the inequality in the civil case,
Mr McKevitt has succeeded in prising open the
door in his search for equality of arms in the
civil case. However, the substantive issues surrounding
full legal representation to allow McKevitt defend
himself is far from resolved. The attempt by Mr
Justice Morgan to make a gesture to create the
delusion of fairness in the case hasn't gone unnoticed
by McKevitt.
Because
of Mr McKevitt's sheer persistence to date, he
has partially succeeded in overturning what earlier
seemed to be an almost impossible stance taken
by Mr Justice Morgan and the Legal Services Commission
in Belfast. It seems as though the Judge has been
forced to do a u-turn, even though it is only
slight movement at this point in time. This no
doubt was due to the continual highlighting of
the unfairness of Michael McKevitt's case in correspondence
directly to Mr Justice Morgan. As far as granting
equality and fairness for the defendants in this
case is concerned, Mr Justice Morgan has a long
way to go.
The British state realise also that if they relent
and grant McKevitt full legal aid to defend the
case they will face exposure into the involvement
of their agents in the bombing of Omagh.
In August 2001 the civil writ was served on Mr
McKevitt at Portlaoise prison in a blaze of publicity
in which one of the plaintiff's, Mr Michael Gallagher,
participated. On that occasion, Mr Gallagher informed
the accompanying media that this was an opportunity
for the men to clear their names. From the outset
and to the surprise of many including the plaintiff's
Mr McKevitt made it known that he would defend
the litigation vigorously. On 12th August 2002
a legal aid certificated was granted to him to
contest the civil action. Realising that the civil
case would be contested Gallagher soon changed
his stance and opposed the granting of legal aid
to the defendants.
From the outset, the plaintiffs funded the civil
proceedings by accepting substantial private donations
from members of the British establishment. However,
over time, the exorbitant costs demanded by the
H20 legal firm who represents the families soon
eroded and the plaintiffs were forced to seek
additional funding to continue with the litigation.
After their unsuccessful campaign for extra funding
their legal representatives intimated that, the
British state should subsidise the civil action.
In December 2003 before the British state directly
intervened, the Legal Services Commission in Belfast
were instructed to inform Michael McKevitt that
his legal aid certificate was being withdrawn
as a result of his conviction in Dublin's non
jury Special Criminal Court.
This was the beginning of many ongoing attempts
to force Mr McKevitt out of the civil case in
anticipation that he would not contest the decision
and the civil case would proceed without any defendants
present.
A judicial review of the decision to revoke McKevitt's
legal aid proved unsuccessful before Mr Justice
Garvin in 2004. However, Mr McKevitt continued
in his quest to secure the legal aid to defend
himself in the civil case, but his options were
limited. The British state continually slammed
door after door in an attempt to deny him the
right to defend himself. At times, it appeared
hopeless; however, McKevitt wasn't for backing
down and with limited resources from his prison
cell in Portlaoise he continually demanded to
have justice, equality and to defend the civil
case.
In February 2004 the Lord Chancellor (Lord Falconer)
made an unprecedented decision and directed the
Legal Services Commission in Belfast to make substantial
payments (£742,702 plus vat) to the plaintiff's
which enabled them to continue with the civil
claim.
Michael McKevitt challenged by way of judicial
review the Lord Chancellors directive to the Legal
Services Commission on the grounds that the directive
was unlawful in that it exceeded the power conferred
upon the Lord Chancellor by the Access to Justice
[Northern Ireland] Order 2003.
The Access to Justice Order states that the Lord
Chancellor should not involve himself or his office
in any decision as to the funding of individual
cases. The Order was very clear but obviously
not to Lord Falconer.
The Belfast High Court accepted the legal argument
by McKevitt and declared the directive unlawful.
This decision by the Belfast court was a major
embarrassment to the Lord Chancellor. Although
McKevitt was successful with the legal argument
against the British state, he realised that it
was not the end of the matter.
In
late 2005, the British Government changed the
law and directed that the finances be made available
to the Omagh families to proceed with the civil
case, whilst at the same time denying Michael
McKevitt and the other defendants' legal assistance
to defend themselves. The events surrounding the
civil case are a blatant abuse of the rights of
the defendants to get a fair hearing.
By subsidising the Omagh families civil action
in such a manner the British government is attempting
to prosecute Michael McKevitt and the others using
a lower civil standard of proof [on the balance
of probabilities] than would be necessary in criminal
proceedings [beyond reasonable doubt].
Over
the past three years under Mr Justice Morgan the
one sided preliminary hearings have continued
and preparations for the civil case have been
ongoing with an input from the plaintiffs only.
The sole evidence against Michael McKevitt is
that of informer David Rupert. However, on this
occasion his evidence is conditional on whether
he is to face cross-examination or not. Mr Rupert
received an assurance that as Mr McKevitt will
have no legal representation he will not face
a rigorous cross-examination and he will have
a free run to give whatever evidence he wishes.
The assurances given to Rupert may ring hollow
and it is possible that the issue of legal aid
will be resolved in McKevitt's favour, no other
conclusion could be reached in the interest of
fairness. Under renewed circumstances, Mr Rupert
may not be as enthusiastic to face cross-examination
by McKevitt's legal team.
