Lawyers for Gerard Hutch, who is accused of the murder of Kinahan cartel member David Byrne at the Regency Hotel, have argued that “a cloak of secrecy” would descend over their client’s case if gardaí from the National Surveillance Unit (NSU) were allowed to give evidence anonymously.
Following lengthy legal applications on Wednesday by the prosecution and by defence counsel Brendan Grehan SC for Mr Hutch, the Special Criminal Court will rule on Thursday on whether 27 officers from the NSU can give evidence anonymously and their names, which are handed in writing into the court, can be withheld from the defence and from the public.
Mr Hutch (59), last of the Paddocks, Clontarf, Dublin 3, denies the murder of Mr Byrne (33) during a boxing weigh-in at the Regency Hotel on February 5th, 2016.
The prosecution made an application to the three-judge court on Wednesday that the public should be excluded from the court when members of the NSU give evidence and that each member should be “anonymised” according to an alphabetical letter, which is the same letter assigned to them in every case.
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Mr Grehan, for Mr Hutch, objected to the application and said the Special Criminal Court did not have the jurisdiction to make the order. He said the legal basis for the application should be established.
Fiona Murphy SC, prosecuting, called Det Supt Eugene Lynch, head of the NSU, who outlined his concerns in connection to the reporting of the names, addresses and physical description of its members.
Det Supt Lynch asked the court to prohibit the reporting of such details “to protect current covert operations and the integrity of future ones”. He said if his officers’ details were read aloud in court it would curtail the ability of the State to prevent terrorist attacks and would jeopardise investigations into serious crime.
Det Supt Lynch agreed with Ms Murphy that 27 members of the NSU were in the book of evidence and that six of them had since retired.
Under cross-examination by Mr Grehan, Det Supt Lynch said he had not sought to protect his own identity because he is now in a management role.
Referring to the trial of Real IRA leader Michael McKevitt, Mr Grehan said members of the NSU who gave evidence had been identified. McKevitt was jailed for 20 years by the Special Criminal Court in 2003 after he was convicted of directing the activities of a terrorist organisation between August 1999 and October 2000.
Mr Grehan put it to the witness that if the court decided it had the power to grant the application, would he be seeking it on a “blanket basis” whether his members were active or retired. Det Supt Lynch said he was.
In her submissions to the three judges, Ms Murphy said Det Supt Lynch had given particular reasons for the anonymity sought and that he had a genuine concern for the safety of the witnesses and their future engagement in such activities. The three-judge court had jurisdiction to make the order, she added.
In reply, Mr Grehan argued that nowhere is it stated that the court “can make up rules” to provide for the anonymising of witnesses that appear before it. “The rule in this case that the prosecution seeks to rely on is ultra vires to the Offences Against the State Act 1939,” he added.
Mr Grehan said it was not possible for witnesses in the Central Criminal Court to get anonymity as it was in the Special Criminal Court and asked the three judges not to depart from “the norm” and from what is done in every other case.
He asked the court to be “scrupulous” in ensuring that “a clear basis of necessity is made out” for the application and that there was no “overreaching”.
Presiding judge Ms Justice Tara Burns said she was specifically asking how Mr Grehan said his client’s fair trial rights were being interfered with. Mr Grehan stressed: “Because he [Mr Hutch] should have a trial in public as far as possible and witnesses should give evidence in a public trial.”
Counsel for the two co-accused, Jason Bonney and Paul Murphy, adopted Mr Grehan’s submissions. Mr Murphy (59), of Cherry Avenue, Swords, Co Dublin and Mr 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 February 5th, 2016.
Ms Justice Burns, sitting with Judge Sarah Berkeley and Judge Gráinne Malone, will rule on the issue on Thursday afternoon.