Gerard Hutch has failed to get orders requiring the State to pay his substantial legal costs following his acquittal of the murder of Kinahan gang member David Byrne at Dublin’s Regency Hotel.
The three judge Special Criminal Court (SCC) ruled on Wednesday there was “no unfairness” in refusing to make orders to have the Director of Public Prosecutions (DPP) pay Mr Hutch’s costs of the 52-day trial, believed to be well in excess of €500,000.
Ms Justice Tara Burns, giving the court’s ruling, said an acquittal is the starting point for considering costs issues but there are other relevant factors. The prosecution of Mr Hutch was warranted and not improper or unreasonable, she said.
Stressing the court was exercising its discretion concerning legal costs, not deciding issues of criminal culpability, she said factors taken into account including who Mr Hutch was associating with.
As part of the prosecution case, the court was asked to determine Mr Hutch had possession of three weapons used in the February 5th, 2016, Regency Hotel attack by March 7th, 2016, at least, she said.
“The court was satisfied beyond reasonable doubt this was the case. This was serious criminal conduct by him accompanied by specific knowledge the guns were used in the Regency attack and had been used to murder David Byrne.”
While the court had rejected the prosecution case that Gerard Hutch was present at the Regency and was one of the shooters of David Byrne, Gerard Hutch is recognised as the “figurehead” and “patriarchal” figure in the Hutch criminal organisation, an organisation which the court had found had orchestrated the attack, she said.
The court had found it was a reasonable possibility that Patsy Hutch, brother of Gerard, had organised the Regency attack and Gerard Hutch had stepped in afterwards as leader of the family, she noted.
In terms of issuing the prosecution against Gerard Hutch, it was a reasonable proposition for the prosecution to act on that nothing in the nature of an “audacious” attack like the Regency would be carried out without his authority, she said.
“There was a reasonable possibility that nothing was carried out by the Hutch organised crime group without his say so,” she said. There was no unfairness in refusing his costs application, she concluded.
On advice of his lawyers, Gerard Hutch did not seek legal aid for the trial, in which he was represented by senior counsel Brendan Grehan and barrister Michael D Hourigan, instructed by Ferrys Solicitors.
In the court’s judgment last April, Ms Justice Burns, Judge Sarah Berkeley and Judge Gráinne Malone found the Regency attack on February 5th, 2016, was orchestrated by the Hutch criminal organisation.
It acquitted Mr Hutch (60), of The Paddocks, Clontarf, Dublin 3, of the murder charge after it found evidence from Jonathan Dowdall, the main prosecution witness against Mr Hutch, was unreliable unless corroborated. Other evidence, including audio recordings, did not provide sufficient corroboration of the murder charge, it concluded.
It convicted two co-accused - Paul Murphy (61), of Cherry Avenue, Swords, and Jason Bonney (52), of Druimnigh Woods, Portmarnock, Dublin- of facilitating the attack by providing getaway vehicles.
Jonathan Dowdall, from Navan Road, Dublin, had been charged with the murder of David Byrne but that charge was dropped after he admitted a lesser charge of facilitating the murder by booking a room in the Regency hotel on the night before the attack. His father Patrick pleaded guilty to the same charge. The hotel room was used by one of the attackers, a former dissident republican, Kevin ‘Flatcap’ Murray, since deceased.
On Wednesday, the court heard submissions on costs from Mr Grehan, for Mr Hutch, and Seán Gillane SC, for the DPP.
Mr Grehan said the only charge brought against Mr Hutch was murder and he was acquitted of that. The initial decision to prosecute him for murder was a wrong decision and that was vindicated by the SCC’s judgment, he said.
It would be unfair to deny Mr Hutch the substantial costs of defending himself on the murder charge on the basis he could or should have been charged with other offences, counsel said. Decisions on other charges were up to others, he said.
Taking the court’s findings about other matters into account in deciding costs would be contrary to the principle of innocent until proven guilty, and create a danger of guilt by association, especially when operating in the context of other family members, counsel said. “People can choose their friends but not their family”.
This very lengthy trial initially involved five accused and ultimately three, he said. His side had not unduly elongated it and only sought a two-week adjournment after the DPP accepted, days before the trial, Dowdall’s plea to the lesser charge and his offer to testify against Mr Hutch which involved a fundamental reappraisal of the defence case.
Before that, the prosecution case centred on audio recordings of conversations between Mr Hutch and Dowdall but neither the audio evidence, or Dowdall’s evidence, supported a murder charge, he said.
A trial court may grant costs to an acquitted persons who has not got legal aid, he said. An acquittal is the starting point and the most important factor, although not the only relevant factor when considering costs issues.
Mr Gillane, for the DPP, argued the costs issue comes down to judicial discretion in relation to the facts and circumstances of the case. The court should resist the defence contention that its verdict amounted to some “vindication” of Mr Hutch, he argued.
Mr Gillane said he took “full responsibility” for decisions made in carriage of the prosecution case. There was, he said, an established sequence of Mr Hutch’s association with firearms used in the Regency killing. That was an “involved”, not a “glancing”, possession, and a contribution to what the court found was an orchestrated series of events to have the weapons moved.
The defence appeared to suggest this prosecution could only be justified if there was a conviction but that is not the law, he said.
This investigation involved a number of agencies, the collection of an “incredible” range of material and the assessment of evidence in connection with a number of people. It was a prosecution of five people originally, convictions had been recorded for four and, in that global picture, the prosecution was “absolutely warranted” and costs should not be granted to Mr Hutch against the DPP.
Gerard Hutch remains ‘very wealthy’ due to property assets
While Gerard Hutch was one of the first targets of the Criminal Assets Bureau (Cab) when it was established in the 1990s, and eventually settled for £1.2 million - or €1.4 million - with the bureau, Garda sources said he remains very wealthy due to his property assets.
He began building a property portfolio, including investing in an apartment block in Dublin’s north inner city, in the years before the Celtic Tiger property boom.
Gardaí believe he still owns some of those properties, as well as having other assets abroad, including in Spain.
The Garda sources also suggested Hutch took the highly unusual decision not to apply for free legal aid at the start of the murder trial because he did not want to furnish the court with a statement of means.
Gardaí believe he would be very reluctant to disclose any information about his income or assets to any arm of the State. - Conor Lally