The Special Criminal Court "flagrantly disregarded" the right to silence and presumption of innocence of Colm Murphy when it convicted him on a charge arising from the Omagh bombing, the Court of Criminal Appeal was told yesterday.
Mr Michael O'Higgins SC, for Murphy, was continuing submissions in his appeal before the three-judge appeal court against his conviction and 14-year sentence.
Murphy (51), Jordans Corner, Ravensdale, Dundalk, was convicted in January 2002 on a charge of conspiring to cause an explosion after a lengthy trial before the non-jury Special Criminal Court.
Mr O'Higgins said yesterday the Special Criminal Court had identified nine factors as corroborative of the alleged admission of guilt by Murphy.
He argued there was either no corroboration of the alleged statements of admission or less corroboration than that which the court had held to exist.
Mr O'Higgins said the Special Criminal Court had listed as corroborative "the fact that the accused's admission of guilt recorded in Garda interview notes are uncontradicted in evidence".
Counsel said this statement by the Special Criminal Court was in flagrant disregard of his client's right to silence and thereby the presumption of innocence. He said the court was effectively saying that because he didn't give evidence, it was relying on the evidence in the case. It was also indicating that the fact Murphy did not give evidence was corroborative, and that he was more likely to have committed the offence.
Mr O'Higgins said such a finding offended against the most basic first principles of law.
Counsel also criticised a finding by the court that Murphy was a republican terrorist of long standing, having been convicted of serious offences in Ireland and in the US in each of which he served prison sentences - the most recent conviction being 20 years before the Omagh bombing.
Mr O'Higgins described as untenable the proposition that, 20 years after his last conviction, it was more likely that Murphy had committed the offence for which he was now imprisoned.
"This is an offensive proposition and has no place in our criminal law - that a man is to be convicted on the basis that he committed offences 20 years previously. It is not evidence that he is likely to have committed the offence [for which he was convicted]. It is merely evidence of bad character, " counsel said.
Counsel noted that the Special Criminal Court had said in its judgment that, in "the light of . . . his membership of a dissident terrorist group in Ireland which is not on ceasefire, he is a person likely to be involved in terrorist activities of the sort charged against him". Such a finding was untenable, he argued.
The hearing continues today.