Judges at the Special Criminal Court have ruled that 10 hours of conversations between murder accused Gerard Hutch and ex-Sinn Féin councillor Jonathan Dowdall that were captured by a Garda bugging device are admissible in the trial, despite the majority of the evidence having been “gathered unlawfully” while Dowdall’s jeep was outside of the State.
The three judges on Friday delivered their ruling on a defence application to exclude either all or most of the conversations between Mr Hutch and Dowdall that were captured by a Garda bugging device outside the State, weeks after the shooting of Kinahan cartel member David Byrne at the Regency Hotel.
The prosecution is seeking to use in evidence the 10-hour recording of conversations from that journey on March 7th, 2016.
Following lengthy legal arguments by counsel for both sides in the trial, presiding judge Ms Justice Tara Burns delivered the judgment of the three-judge court. The judge said the court found that the National Surveillance Unit (NSU) officers “had no power” to gather evidence in Northern Ireland, that the evidence was “gathered unlawfully” and that the breach that had occurred was “of significance”. Nonetheless, she said the court was satisfied that the relevant NSU officers had acted in good faith, that there was no “mala fides” on their part and that the illegality was unknown at the time.
Ms Justice Burns went on to say that the court was satisfied that the conversations between the two men ought to be admitted into evidence in the “interests of justice”.
The judge rejected the defence’s challenge to the authorisation of the audio bugging device by the District Court judge, but accepted their second argument that the operation of the surveillance device was illegal. The court ruled on Friday that gardaí have no power to investigate or gather evidence in another state and that the gardaí cannot operate independently in another jurisdiction.
The conversations between Mr Hutch and Dowdall took place when they were allegedly travelling north to a meeting in Strabane in Co Tyrone on March 7th, 2016, in Dowdall’s Toyota Land Cruiser jeep, that had been bugged by Garda detectives.
The prosecution’s case is that Mr 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.
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.
Ruling on the challenge to the authorisation of the audio bugging device by the District Court judge, Ms Justice Burns said it was being challenged by the defence on several grounds but she rejected all of them.
The main part of the defence’s challenge was the authorisation for the bugging device granted by the District Court judge, which they argued was “unlawfully issued” and submitted that no evidence gathered on foot of it should be admitted.
Ms Justice Burns said the application before the District Court was for authorisation of a surveillance device of the recording of a group of people and that a tracking device was only used for providing locations of a person, place or thing. “These are completely different devices which record very different things, accordingly failure to disclose this fact does not breach a duty of candour,” she said.
Referring to the submission that the jeep may have been travelling outside the jurisdiction, the judge said that the detective superintendent did not have the intelligence that there would be “future visits” to Northern Ireland and any assumptions of this could only be based on speculation.
Ms Justice Burns said the court was satisfied that the authorisation for the bugging device issued by the District Court was a lawful and “valid” one.
Dealing with the defence’s second argument concerning the extraterritoriality issue raised about the audio recordings, the judge said the question which arises is whether information gathered when the bugging device was out of the jurisdiction and in a foreign jurisdiction was lawful. She said An Garda Síochana has no authority to investigate or gather intelligence in another jurisdiction and that “officer after officer” had given evidence that they were not permitted to operate in Northern Ireland. She said the unlawfulness relating to the gathering of the material is significant but that there was no “mala fides” on the part of An Garda Siochana.
It was also submitted by the defence that the use of the audio device was a breach of Mr Hutch’s “well established constitutional right to privacy”.
The court found today that a conditional right to privacy “cannot stand” when criminal matters are being planned and that a breach to the right of privacy does not arise in this case.
The trial continues on Monday before Ms Justice Burns sitting with Judge Sarah Berkeley and Judge Grainne Malone.