Two judges who heard an appeal against a murder conviction may have to step away from the case after they discovered that one of them prosecuted the killer while the other defended him on a previous murder charge.
Seamus Morgan (53) last week appealed to the three-judge Court of Appeal against his conviction for murdering dissident republican Larry 'Bomber' Keane. Morgan was previously found not guilty of murder but guilty of manslaughter for the killing of 29-year-old James Hand outside a Dublin pub in 2002.
On Thursday morning President of the Court of Appeal Mr Justice George Birmingham said that as he read through details of Mr Hand's killing he realised that it seemed familiar. He said he is "pretty certain" that he defended Morgan in that trial and that his colleague on the appeal court panel, Mr Justice Patrick McCarthy, prosecuted him.
He added: "If we are right, two members had an involvement when Mr Morgan was previously on trial for murder and was acquitted of murder and convicted of manslaughter, and we thought we should bring that to the attention of the parties. If either side has a qualm, neither of us would have any further involvement and the appeal would be reheard with a different panel."
Mr Justice Birmingham said the details hadn't struck him earlier because the previous trial related to matters in the north inner city of Dublin, whereas Keane was murdered in Kildare. Lawyers for Morgan and for the Director of Public Prosecutions thanked Mr Justice Birmingham and said they would take instructions before saying whether they would prefer to rehear the appeal with a different panel.
Morgan, of The Hollands, Athy, Co Kildare was jailed for life in 2016 for murdering Keane, a 56-year-old who himself served a prison term for possession of a bomb that was twice the size of the one used to kill 31 people, including unborn twins, in Omagh in August 1998. Gardai said at the time that the Real IRA intended to detonate the bomb at the Aintree Grand National.
Following a trial in 2005 in which he was defended by then senior counsel George Birmingham, Morgan was found not guilty of murder but guilty of manslaughter for killing James Hand on or between August 22 and September 5, 2002 at The Meeting Point pub on Dorset Street Upper in Dublin's north inner city.
At an appeal hearing last week Sean Gillane SC for Morgan said the murder conviction should be overturned because of a misleading suggestion that witnesses in the trial were intimidated by his client. Mr Gillane said he was unable to challenge the suggestion due to a ruling by the trial judge that if he introduced evidence of Keane's criminal background the prosecution would be allowed to introduce evidence of his client's previous conviction for manslaughter.
The court reserved judgement.