One-time convicted Omagh bomber's son has conviction for possession of explosives quashed
The son of a man who was convicted of the 1998 Omagh bombing but later cleared in a retrial, has had his own conviction for explosives offences quashed by the Court of Appeal.
Conan Murphy (29), with an address at Plaster, Mount Pleasant, Dundalk, Co Louth, who is the son of Colm Murphy – a Dundalk man convicted of the Real IRA bombing of Omagh which killed 29 people but later cleared in a retrial following a successful appeal – now faces a retrial.
The Special Criminal Court found Conan Murphy guilty of the possession of explosive substances at Aghaboys, Mount Pleasant on May 22nd, 2010 and the non-jury court sentenced him to eight-and-a-half years imprisonment on March 9 2012.
His co-accused Philip McKevitt (62) of Aghaboys, Mount Pleasant, was also jailed for eight-and-a-half years having been found guilty of the same offence at his home on the same date.
The Court of Appeal quashed Conan Murphy's and Philip McKevitt's convictions today over the Special Criminal Court's failure to permit arguments in relation to a Supreme Court declaration the previous day.
Speaking on behalf of the three-judge court, Mr Justice George Birmingham said there was “one issue of overwhelming significance” the court felt it must address despite multiple grounds of appeal.
On February 23 2012, one day before Murphy and McKevitt were convicted by the Special Criminal Court, the Supreme Court declared that section 29 (1) of the Offences Against the State Act (as inserted by section 5 of the Criminal Law Act 1976) was repugnant to the Constitution, as it permitted a search of a person’s home on foot of a warrant not issued by an independent person.
Mr Justice Birmingham said Murphy's and McKevitt's legal teams were quick to respond. A letter was sent to the Special Criminal Court on the day of the Supreme Court's declaration and copied to the DPP asking for a suspension of deliberations so that counsel could address the changed legal landscape.
The Special Criminal Court indicated “with some firmness”, the judge said, that it would not permit the case to be reopened and it stated its intention to deliver its prepared judgment there and then on February 24, 2012.
Mr Justice Birmingham said the Court of Appeal had a degree of sympathy with the Special Criminal Court in that it had dealt with an extraordinarily lengthy case but it could not agree with the approach taken.
The landscape had changed in a “fundamental way”, Mr Justice Birmingham said. There was clearly a need to permit and require all sides to address the changed circumstances.
In all likelihood the evidence should have been reopened, Mr Justice Birmingham said. That would have been “very inconvenient” but “a trial in due course of law required no less”.
“Obviously their circumstances were not identical,” the judge said. It was McKevitt's property not Murphy's and their arguments on this point diverged.
The Court of Appeal felt that “it must quash the conviction,” Mr Justice Birmingham said.
It was submitted on the men's behalf that a retrial should not be ordered.
However, Mr Justice Birmingham said the case for a retrial was “overwhelming”.
He said the events which were the subject at trial were matters of “extreme seriousness” and the interests of justice required that guilt or otherwise should be determined by a trial in due course of law.
Mr Justice Birmingham, who sat with Mr Justice Garrett Sheehan and Mr Justice John Edwards, ordered the retrial and remanded both men back to the Special Criminal Court until Tuesday next.
The Court of Criminal Appeal had granted bail to both men in July 2012 pending the outcome of their appeal.
Counsel for McKevitt, Diarmaid McGuinness SC, asked the Court of Appeal to put a stay on the order for a retrial for 28 days to allow consideration of whether a case could be taken to the Supreme Court on the question of the order for a retrial only.
Mr Justice Birmingham said the court was not prepared to give such a stay. He said a retrial was very unlikely to take place within 28 days and the option of going to the Supreme Court would still be available.
There was a “very large number” of grounds of appeal submitted by Murphy's barristers, Gíollaíosa Ó Lideadha SC and Kerida Naidoo SC as well as McKevitt's barristers Dairmaid McGuinness SC and Philip Rahn BL.
In a situation where “there is to be a retrial” and where evidence will diverge due to the changed landscape, Mr Justice Birmingham said it was not appropriate for the Court of Appeal to say more in relation to those grounds.
In the court's view, there was ample evidence for the case against Murphy and McKevitt to go before a jury or to be decided by judges of fact in the Special Criminal Court, Mr Justice Birmingham said.
During their trial, which began in December 2011, the court heard that gardaí who raided Philip McKevitt’s home discovered in an outbuilding an “adaptive” advertising trailer constructed for the purposes of concealing two gas containers which in turn had been modified to cause an explosion.
Gardai gave evidence that the device, which carried an advertisement for “FlogTheLot.ie”, had reached the final stages of construction before its intended deployment against security forces in the North.
Chief Superintendant Diarmuid O’Sullivan had told the court that the device had a capacity of approximately 500lbs of explosive mix, giving it the potential to cause death and destruction comparable to a device which killed 29 people in the past.
By Ruaidhrí Giblin