A decision is to be made on Friday whether secret footage of Gerry “The Monk” Hutch can be used as evidence
The Special Criminal Court is expected to decide this Friday whether classified recordings of Gerry “The Monk” Hutch’s conversations can be admitted as evidence in the Regency murder trial.
The court’s three judges are due to rule on the admissibility of surveillance tapes made when Mr Hutch was driven to Northern Ireland by ex-Sinn-Féin councilor Jonathan Dowdall weeks after the gangland shooting.
Mr Hutch’s lawyer, who argues wiretapping across the border is illegal, said today admitting the evidence would mean a “strange and very wrong” interpretation of surveillance laws.
The audio evidence was played in three days of non-jury trial last week and an admissibility hearing concluded today. Depending on the verdict, all, part, or none of the recordings may be admitted as evidence.
Dowdall is expected to be subpoenaed to testify for the prosecution sometime thereafter.
Mr Hutch is accused of murdering David Byrne, who was shot dead at the Regency on February 5, 2016. Two other men, Jason Bonney and Paul Murphy, are accused of helping the criminal organization responsible by providing cars that were used to evict the attackers after the shooting.
Mr Byrne, 33, a member of the Kinahan gang, was killed when three masked assault rifle attackers dressed as ERU Gardaí, along with a gunman dressed as a woman with a blonde wig and another gunman, stormed the north Dublin Regency in a flat cap.
The attack on a boxing weigh-in event has fueled a bloody feud between crime gangs Kinahan and Hutch.
Mr Hutch (59) of The Paddocks, Clontarf, Dublin, Mr Murphy (61) of Cherry Avenue, Swords and Mr Bonney (51) of Drumnigh Wood, Portmarnock deny the charges against them.
Jonathan Dowdall had also been accused of murder, but before the trial began he instead admitted facilitating Mr Byrne’s murder by booking a hotel room for the perpetrators.
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A member of the Garda Armed Support Unit (TUES) helps manage traffic outside the Special Criminal Court yesterday as a prison van prepares to depart. Photo: Collins Courts
The court has heard that as he drove Mr Hutch north on March 7, 2016, tracking and audio devices from the Garda National Surveillance Unit were deployed to Dowdall’s Toyota Land Cruiser SUV.
Prosecutors are trying to use a 10-hour recording of conversations from that trip as evidence. Mr Hutch’s attorney Brendan Grehan SC today responded to submissions from State Attorney Sean Gillane SC.
Mr Grehan argues that the Criminal Justice (Surveillance) Act 2009 clarified that a permit for a surveillance device could only apply within the State.
Mr Gillane has said he has no extraterritorial claim to the Garda surveillance, but argues that the beetle was an “inanimate object” and records it “accidentally” made crossing the border are admissible here in evidence as long as the device was lawfully provided, accessed and downloaded in the Republic.
He said the defense’s contention that the law would not allow it could not be correct, as it would mean the Oireachtas were “blind, deaf and unaware” of the existence of the northern border and the law in investigating serious crimes such as it would become useless like terrorism or drug trafficking.
In reply, Mr Grehan said that if the Oireachtas wanted to legislate beyond their borders they could do so, but it should have been done clearly.
Nothing in the law indicated it would apply beyond that state’s borders, he said.
The use of the device and the recovery of its data took place in that jurisdiction, but this was “sideline to the primary purpose of the law, which is surveillance,” which was done outside the state’s borders, Mr Grehan said.
“If that’s going to be done, it has to be done with legal authority,” he said.
Prosecutors have been “dancing around” on the issue of whether the law allows them to conduct out-of-state surveillance, he said.
Mr Grehan said describing the bug as an inanimate object was a “fairly innocuous phrase”. It reminded him of a book that referred to murderers who stabbed people and described their crime by saying, “The knife went in,” as if the gun had a will of its own.
He said it suggested the bug was like a fly buzzing around; that it was uncontrollable, could go anywhere, and when it “picked up” things, the gardaí benefited. If Mr Gillane was right, it could travel not just north, but anywhere – “France, Spain or Asia” – as long as it returns to that jurisdiction, he said.
This fails to recognize that surveillance – the very heart of the law – takes place outside of jurisdiction, argued Mr Grehan. He said Mr Gillane “did not actually say the words that the law requires for the object to travel out of jurisdiction and conduct surveillance”.
However, prosecutors relied on this, arguing that if the data were recovered the law “had this in mind,” Mr Grehan said.
Mr Hutch’s lawyer Brendan Grehan SC said describing the beetle as an inanimate object was a “pretty harmless phrase”.
What mattered was whether the court, in interpreting the law, should allow surveillance activities in that jurisdiction to be “international”.
Referring to the law covering planes and ships, Mr Grehan said it must apply within that country’s territorial waters and skies.
To the extent that “expanding” territorial boundaries goes under the law, it is clearly going the other way and “within the state,” he said.
“It asks the court to propose a strange and very wrong interpretation of the law to suggest otherwise.
“Creeptly capturing people’s voices is surveillance, everything else is secondary. The crux of the matter is that these matters are recorded.”
Mr Grehan also argued that collecting the evidence did not adequately respect his client’s right to privacy under the Constitution and the European Convention on Human Rights.
He accepted that the law can be interfered with, but with just cause and it must be proportionate and in accordance with the law.
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Members of the Garda Armed Support Unit on duty at the Special Criminal Court today. Photo: Collins Courts
Otherwise, the state organs could encroach on the rights of everyone in an unregulated manner. To suggest that the right to privacy is gone when there has been a criminal-type discussion is to “take things from the other side” and say “look at what we have”.
Mr Gillane had argued Mr Hutch’s expectation of privacy was “muted” as he was in someone else’s vehicle talking about murder.
Mr Grehan said prosecutors have claimed we all have a right to privacy “except for Mr Hutch because there are a couple of comments” suggesting the right doesn’t apply when a crime is being planned.
Mr Hutch has been charged in connection with a crime said to have been committed weeks earlier, he said.
“Mr Gillane’s overall position is that the end justifies the means,” Mr Grehan said. “If so, that’s the end of the rule of law.”
Ms Judge Tara Burns said she expects the court to make its decision on the recordings on Friday.
https://www.independent.ie/irish-news/courts/ruling-over-whether-secret-recordings-of-gerry-the-monk-hutch-can-be-used-in-evidence-at-trial-is-due-on-friday-42182645.html A decision is to be made on Friday whether secret footage of Gerry “The Monk” Hutch can be used as evidence