File photo of Gerard Hutch (2008). Credit: RTÉ.
regency trial

Special Criminal Court to rule on admissibility of Hutch recordings on Friday

Hutch’s defence team said there is nothing in the Surveillance Act to suggest it has scope beyond the State’s borders.

GERARD HUTCH’S DEFENCE team have told his Special Criminal Court murder trial that there is nothing in the Criminal Justice (Surveillance) Act 2009 to suggest it has scope beyond the borders of the State and that the Oireachtas would have legislated for this with “irresistible clearness” if this had been the case.

Senior counsel Brendan Grehan, for Gerard ‘The Monk’ Hutch, said today that the State had “danced around” the jurisdiction issue concerning conversations between Regency Hotel murder accused Hutch and ex Sinn Fein councillor Jonathan Dowdall that were captured by a garda bugging device. Counsel said that the prosecution was asking the court to put “a strange” and “very wrong” interpretation on the Act.

The three-judge court will rule on Friday morning whether the contents of the recorded conversations are admissible in evidence having regard to the extraterritoriality issue.

Sean Gillane SC, for the Director of Public Prosecutions, submitted yesterday that the conversations captured by the two men on the garda bugging device, which the State says is “part of the core” of their case, should be admissible in evidence and that any issue about where the device travelled to is “a cloud” which the defence has placed over the case.

Prosecution counsel has agreed with the presiding judge it was the State’s case that, once a surveillance device is placed and retrieved lawfully on a car within this jurisdiction, “then it does not matter a damn where the vehicle was in the meantime”.

The trial has heard that the jeep crossed the border at the Carrickdale Hotel in Dundalk Co Louth at 3.12pm on 7 March, crossing back into the Republic at 10.50pm that night at Aughnacloy in Co Monaghan.

Last Friday, Grehan set out his stall telling the non-jury court that “on its face” there had been an illegal operation of the Act in this case and that the prosecution was seeking to “wheel the evidence in” which “extended beyond the territorial boundaries” and say “none of that matters”.

He stated that an audio surveillance device being deployed on a vehicle gathering intelligence whilst operating outside of the jurisdiction was in “contravention” of the terms of the Act.

Hutch (59), last of The Paddocks, Clontarf, Dublin 3, denies the murder of Kinahan Cartel member David Byrne (33) during a boxing weigh-in at the Regency Hotel on 5 February, 2016.

The defence is objecting to the admissibility of almost eight hours of the contents of a ten hour audio recording of conversations between Hutch and Dowdall captured by a garda bugging device on 7 March, 2016. Grehan argued that Dowdall’s Toyota Land Cruiser jeep was outside the State in Northern Ireland from 3.10pm to 10.50pm that day, when Dowdall allegedly drove the two men to the North to meet with republicans.

The prosecution’s case is that Hutch had asked Dowdall to arrange a meeting with his provisional republican contacts to mediate or resolve the Hutch-Kinahan feud due to the threats against the accused’s family and friends.

Replying to the State’s submissions today, Grehan said the description of the bug as “an intimate object” reminds him of a very famous book “The Knife Went In” by UK doctor Theodore Dalrymple.

The doctor, he said, had interviewed people who had killed others with knives and none of them seemed capable of saying “they did anything at all; that the knife was in their hand and went in as if the knife was an inanimate object”.

The barrister said that by Gillane calling the bugging device “an inanimate object” it seemed to suggest that it was “almost like flying, buzzing around”, that it was totally incapable of being controlled and that it might go anywhere. “If it happens to pick up loads of things out there then great,” he added.

Gillane argued yesterday that an audio surveillance device is “simply an inanimate movable item” which had been “applied, sought, deployed, initiated and retrieved within the State” and that the data was recovered within the State. He stated: “No question of extraterritoriality in truth arises”.

Grehan said the prosecution had suggested that it must have been in the minds of the Oireachtas that the bug deployed under the Act would travel north. “If Mr Gillane is right we are not talking about the bug just travelling north, according to him it can travel anywhere,” he continued.

Grehan submitted that the Oireachtas may exercise extraterritorial jurisdiction or “past its borders” when enacting legislation but if this is the case then it must expressly state this in the Act.

Counsel said he had “great difficulty” with Gillane’s submission, who was suggesting that the Act is limited to the granting of the authorisation, deployment and recovery of data within this jurisdiction and within the purview of the Act.

“All those things he listed are merely incidental to the meaning of what the Act is,” he stated.

Grehan said the defence objected to the carrying out of surveillance outside the borders of the State and that if it was to be done then it must be done with “legal authority”. “There must be some power to do this,” he continued.

Referring to retired Detective Superintendent William Johnston, Grehan said the witness was reluctant to answer under cross-examination whether the Act permitted gardai to carry out surveillance outside the State. This, counsel said, was from a man who was in charge of operating the Act at the time.

Det Supt Johnston had applied for authorisation to the District Court on 17 February, 2016 to employ the audio device on Dowdall’s jeep with a view to “monitoring” the conversations of Dowdall and his associates.

Grehan said it was the prosecution’s submission that it would not have mattered if the audio surveillance device had gone to “France, Spain and Asia” once it came back to this jurisdiction. “This fails to recognise the very essence of the Act that surveillance is being carried on outside the jurisdiction,” he said.

Counsel said the Oireachtas could have legislated for surveillance outside the jurisdiction and if they had intended to do what the court is being asked to accept by the prosecution then they would have expressed it clearly and explicitly.

He said there was nothing in the Act or in its long title to suggest it had a scope beyond the extent of this territory or the borders of the State and if the legislators were going to do so then they would have done so with “irresistible clearness”.

“If that was their natural intent then why didn’t they say it,” he pointed out.

Gillane, the lawyer said, had “danced” around the jurisdiction issue and was not prepared to say the words that the Act provided for objects to travel outside the State and conduct surveillance.

“Where in the Act has Gillane pointed to this clear and express intention and I say it is not there,” he argued.

He said that reference to the words “aircraft” and “a vessel, whether sea-going or not” in the interpretation section of the Act did not mean that aircraft can fly anywhere and still be captured by the laws of this country.

“It must mean it must apply within the territorial waters and sky of this country,” he added.

He said the prosecution was asking the court to put “a strange” and very wrong interpretation on the Act and that the judges should be very wary of suggesting ingenious interpretations of the legislation.

In summary, Grehan said the gathering of conversations between both men in the North was an unlawful operation of the Act in terms of the bug being operational in Northern Ireland and that the fruits of it being downloaded “were the fruits from the poison tree”.

The Special Criminal Court has viewed CCTV footage of what the State says is Hutch making two separate journeys to Northern Ireland with Dowdall on 20 February and 7 March, 2016, just weeks after Byrne was murdered.

CCTV footage has been shown to the court of Hutch getting into the front passenger seat of Dowdall’s Land Cruiser at 2.23pm on 7 March at Kealy’s pub of Cloghran on the Swords Road. Further CCTV footage showed the jeep at the Maldron Hotel in Belfast at 5.35pm that evening.

Another clip showed the jeep returning to Kealy’s car park at 00.15 in the early hours of the morning on 8 March, where Hutch gets out of the jeep and into a BMW.

Jonathan Dowdall (44) – a married father of four with an address at Navan Road, Cabra, Dublin 7 – was due to stand trial for Byrne’s murder alongside Gerard Hutch but pleaded guilty in advance of the trial to a lesser charge of facilitating the Hutch gang by making a hotel room available ahead of the murder.

Dowdall has been jailed by the Special Criminal Court for four years for facilitating the Hutch gang in the notorious murder of Kinahan Cartel member David Byrne.

The former Dublin councillor is currently being assessed for the Witness Protection Program after agreeing to testify against former co-accused Gerard Hutch, who is charged with Byrne’s murder.

Byrne, from Crumlin, was shot dead at the hotel in Whitehall, Dublin 9 after five men, three disguised as armed gardaí in tactical clothing and carrying AK-47 assault rifles, stormed the building during the attack, which was hosting a boxing weigh-in at the time.

The victim was shot by two of the tactical assailants and further rounds were delivered to his head and body.

Byrne died after suffering catastrophic injuries from six gunshots fired from a high-velocity weapon to the head, face, stomach, hand and legs.

Hutch’s two co-accused – Paul Murphy (61), of Cherry Avenue, Swords, Co Dublin and Jason Bonney (50), of Drumnigh Wood, Portmarnock, Dublin 13 have pleaded not guilty to participating in or contributing to the murder of David Byrne by providing access to motor vehicles on 5 February, 2016.

The trial continues on Friday before Ms Justice Tara Burns sitting with Judge Sarah Berkeley and Judge Grainne Malone.

Alison O'Riordan