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Dissident republican clears first stage of partially secret trial

By Alan Erwin

Published 18/12/2015

A prominent dissident republican cleared the first stage today in a legal battle over the choice of lawyer to represent his interests at a landmark bid for a partially secret court hearing.

Belfast man Terence McCafferty is suing the British Government for being returned to prison based on intelligence alleging he was a Real IRA leader.

The authorities are seeking a closed material procedure (CMP) for part of that action due to issues of national security.

Attempts to secure the so-called secret court are being advanced under powers contained in the Justice and Security Act 2013.

It would involve intelligence documents being assessed by a judge and a special advocate barrister appointed to protect the rights of a plaintiff shut out from the hearing.

But McCafferty, 47, is seeking to judicially review the Advocate General over the two senior counsel identified for the role in his case.

He wants another leading Belfast-based QC, Gerald Simpson, to represent him. Mr Simpson is believed to have already seen the material in separate proceedings.

McCafferty, with a previous address at Carlisle Road in Belfast, received a 12-year sentence in July 2005 for possessing explosives after an attempt to blow up a Belfast motor tax office.

He was released on licence in November 2008 but a few weeks later was arrested on the basis that his continued liberty was a risk to others and returned to prison.

Although now back out of jail once again, he is suing the Secretary of State for alleged unlawful detention.

An application for a CMP in the case was set to take place next month.

But that hearing has now been put on hold after he was granted leave to seek a judicial review over the barristers identified to perform the special advocate's role.

His legal team claim the decision taken is irrational and imposes an unlawfully restrictive requirement for the representative to be "develop vetted".

Counsel for McCafferty, Frank O'Donoghue QC, told the High Court today that he wants Mr Simpson - a lawyer he described as "a go-to counsel for government bodies in cases involving sensitive material".

Mr O'Donoghue added: "My client had his licence revoked for certain definable reasons.

"This is not a case about what information the Secretary of State or any other government body might have about Mr McCafferty in the past, or since 2009/2010, this is about reasons for revoking his licence."

Granting leave to apply for a judicial review, Mr Justice Stephens emphasised the low test of establishing an arguable case required for the challenge to continue.

"It does not express any opinion at all of this court in relation to the ultimate outcome of the application," he added.

A full hearing will now take place in March.

The application for a CMP in McCafferty's case was set to be the first of its kind in Northern Ireland.

Outside court his solicitor, Claire McKeegan of KRW Law, said: "In circumstances where our client is to be excluded from crucial parts of his case it is vital that he has confidence in the Special Advocate who is tasked with representing his interests in the course of the closed hearings.

"Mr Simpson QC has acted for our client in this capacity previously and has viewed all of the security sensitive material."

She added: "It is irrational that the Advocate General cannot accede to our clients request in these circumstances. 

"We have grave concerns regarding the lack of transparency in the process of nominating the Special Advocates."

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