Northern Bank cash verdict quashed
The Court of Criminal Appeal (CCA) has quashed the convictions of and ordered the retrial of a Cork financier found guilty of alleged offences linked with the 2004 Northern Bank robbery.
In April 2009, Timothy 'Ted' Cunningham (63) was jailed for 10 years by Judge Cornelius Murphy after a jury, following a 44 day trial, found him guilty by majority verdicts of laundering more than £3 million sterling from the robbery of the Northern Bank in Belfast in December 2004.
Mr Cunningham, of Farran, Co Cork, had pleaded not guilty at Cork Circuit Criminal Court to 10 charges of money-laundering, and appealed his convictions.
This morning, the three judge CCA comprised of Mr Justice Adrian Hardiman, sitting with Mr Justice Michael Moriarty and Mr Justice Gerard Hogan quashed the convictions, indicating a warrant obtained by the gardaí under section 29 of the Offences Against the State Act to search Mr Cunningham's home in February 2005, as part of investigations into the robbery, was not valid.
This was because the warrant was issued by the senior Garda in charge of the investigation, who could not be described as being the person in charge of the investigation.
Mr Justice Hardiman said that the court was satisfied to quash Mr Cunningham's convictions and order a retrial on nine of the 10 courts of alleged money laundering. In light of the CCA's ruling, the tenth count of alleged money laundering, which referred to a sum of £2.4 million allegedly found in Mr Cunningham's house during the search, will not proceed to a retrial.
Mr Cunningham's appeal was the first brought on the basis of a recent Supreme Court ruling on search warrants issued under a key piece of anti-terrorist legislation.
In February, 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.
The court found that Article 40.5 of the Constitution expressly provides that a person’s home is inviolable and shall not be forcibly entered except in accordance with the law.
The court made its ruling in the case of Ali Charaf Damache, where a search warrant had been issued by a member of the Garda team investigating the matter. Section 29 has been routinely used in the past by gardaí to search the homes of suspects in terrorist cases.
Mr Damache was living in Waterford when he was arrested as a suspect in an alleged conspiracy to murder Swedish cartoonist Lars Vilks over his drawing of the prophet Muhammad.
Opposing the appeal, the DPP had argued that the Mr Cunningham was not entitled to rely on the Damache decision on grounds including that he had been conviction prior to the Supreme Courts ruling.
The DPP further argued that the Damache verdict could not have been anticipated and that the case against Mr Cunningham was fully concluded by the jury's verdict.
In its judgment the CCA rejected all of the DPP's arguments. Following the CCA's verdict, Mr Cunningham was remanded in custody with consent to bail.