The son of a man who was convicted but later cleared of the 1998 Omagh bombing has today been granted bail pending an appeal against his conviction for explosives offences.
Conan Murphy (aged 25) is the son of Dundalk man Colm Murphy who was convicted of the Real IRA bombing but successfully appealed his conviction in a retrial.
Conan Murphy, with an address at Plaster, Mount Pleasant, Dundalk, Co Louth, was jailed for eight-and-half-years last March having been found guilty by the Special Criminal Court (SCC) of the possession of explosive substances at Aghaboys, Mount Pleasant on May 22, 2010.
His co-accused Philip McKevitt (aged 58) 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. Neither of the men have any previous convictions.
The Court of Criminal Appeal this morning granted bail to both men, having found they had identified discreet grounds of appeal upon which they had a sufficient prospect of success.
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 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.
The court heard that although a warrant under Section 29 of the Offences Against the State Act had been issued to search McKevitt’s premises, gardai gave evidence that they entered the premises under Section 6 of the Criminal Law Act, 1997.
The latter Act states that, for the purpose of arresting a person without a warrant for an arrestable offence, gardaí may enter and search any premises where that person is if, among other things, they reasonably suspect the person will commit an arrestable offence or abscond before a warrant can be obtained.
During the trial, Detective Sergeant Padraig Boyce gave evidence that members of the garda Emergency Response Unit entered the premises because they believed the two men were in the advanced stages of making an explosive device which was about to be moved.
On February 23 of this year, one day before the SCC delivered judgement against the two men, 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.
Section 29 had been routinely used in the past by gardaí to search the homes of suspects in terrorist cases.
Ms Deirdre Murphy SC, for Murphy, submitted that Mr Murphy’s solicitors wrote to the SCC on the morning of February 23rd requesting that counsel be allowed to address the decision of the Supreme Court, yet the SCC took the view that the case was “over”.
Ms Murphy also submitted that the first time gardai made reference to having entered the premises pursuant to Section 6 of the 1997 Act was at trial.
Counsel for the State, Mr Paul Greene SC, said that Conan Murphy did not have an entitlement to assert a breach of constitutional rights as he was a visitor to the premises at Aghaboys.
He said Philip McKevitt was in a different situation as he lived in house attached to the premises where the bomb was found.
However, Mr Greene submitted that even if entry under Section 6 did not command the requisite degree of credibility this would only render the gardai trespassers, whose presence at Aghaboys was unlawful but not unconstitutional, allowing the SCC a discretionary power to hear the evidence.
Mr Greene said that Sgt Boyce gave evidence that he believed the men were in advanced stages of constructing an explosive device and it happened “from time to time” that evidence given in court was not “chapter and verse” of that given in statements before the trial.
Mr Justice Adrian Hardiman, presiding, said the appeal court would not say “more than was strictly necessary” but was of the view that at least one of the grounds was of sufficient cogency to have a reasonable chance of success.
He said that it appeared the applicants were on bail prior to the trial and the court was disposed to admit the applicants bail on the same terms, which included the lodgement of an independent surety of €20,000 for Philip McKevitt.