The privacy rights of murderer Kevin Braney, the leader of the New IRA in Dublin, were not breached when gardaí used a surveillance device to listen in on him conversing with members of a criminal gang at a KFC restaurant, the Court of Appeal has found as it upheld his conviction.
Braney (49), of Glenshane Crescent, Tallaght, Dublin 24, was found guilty of murder by the three-judge, non-jury Special Criminal Court in February 2019.
The victim, dissident republican Peter Butterly (35), was shot dead in the car park of the Huntsman Inn pub in Gormanston, Co Meath, on March 6th, 2013.
Dismissing Braney’s appeal against his murder conviction on Friday, Judge Isobel Kennedy said the court had not been persuaded that any of the grounds raised had been made out.
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Kennedy noted Braney had originally sought to advance 51 grounds of appeal, though several of these were abandoned during the hearing.
Part of the evidence against Braney during his murder trial was that he met five others at a KFC restaurant in Charlestown Shopping Centre, Finglas, the day after the fatal shooting.
Braney’s lawyers had argued that gardaí did not seek proper authorisation before using the device and that the trial court should not have admitted the recording as evidence.
The listening device used by gardaí recorded “audible utterances” between the men in KFC, suggesting they were concerned as to why the Huntsman Inn had been saturated with gardaí the previous day and questioning why every move they made was being followed.
Gardaí had used legislation under the Criminal Law (Surveillance) Act 2009 that allows a superior officer to authorise the use of a listening device without making an application to a District Court judge where a delay might cause evidence to be lost.
Braney’s lawyers argued that the superintendent in Laytown who authorised the surveillance could have made an application at Balbriggan District Court, which was sitting at the time.
In delivering the judgment, the judge said the finding of fact made by the Special Criminal Court – that the superintendent’s belief was that he was dealing with an emergency – was “impossible to upset”.
She said the detective superintendent gave evidence that he considered going to court, but felt that if he did so, the opportunity to “plant the devices in time for the meeting would be lost”.
“The acceptance by the court of that evidence is not a finding which we would reverse,” the judge said.
She also rejected arguments that the trial judges were wrong in refusing to disclose the identity of eight members of the National Surveillance Unit (NSU) to the appellant’s legal team and that the Special Criminal Court erred in upholding a claim of privilege in respect of these members.
The court heard anonymity was required for the success of the NSU’s operations and that there was no evidence that naming the officers would afford a material benefit to Braney.
In a lengthy judgment running to almost 200 pages, Kennedy, sitting with Judge Brian O’Moore and Judge Michael MacGrath, dismissed further grounds relating to the audio recording’s intelligibility and the evidence of David Cullen, an accomplice who was charged with Butterly’s murder before turning State’s witness, as well as a motion to adduce new evidence, arguments that the court’s judgment was perverse and a refusal of the court to direct a not-guilty verdict.
Butterly was lured to a meeting at the Huntsman Inn on March 6th, 2013, where he was chased and shot dead in the car park in view of students waiting for their schoolbus. The father of three died from gunshot wounds to his neck and upper back.
Before his conviction, Braney was sentenced in 2018 to four years and six months after he was found guilty of IRA membership by the Special Criminal Court.
