The Special Criminal Court has ruled that a secret recording of the conversations of Gerard ‘The Monk’ Hutch, charged with murder at the Regency, can be used as evidence against him.
It contains part of the conversations recorded in Northern Ireland which were illegally sourced – but will be admitted in the process.
The court ruled today that surveillance tapes of Garda, made as he was driven north by ex-Sinn Fein councilor Jonathan Dowdall weeks after the shooting, are admissible in Mr Hutch’s trial.
Ms Judge Tara Burns said in a judgment today that eight of the 10 hours of audio came from unlawful Garda surveillance across the border in Northern Ireland.
However, she ruled that the full 10 hours could be allowed by law and at the court’s discretion “in the interests of justice”.
She said the Garda surveillance unit acted in good faith in using the bug and was unaware at the time it was illegal.
The tapes, which were played last week, were described as “the crux” of the prosecution’s case against Mr Hutch.
His defense had objected to their admissibility, arguing that their authorization was invalid and eight of the 10 hours of audio came from ‘illegal’ Garda surveillance across the border in Northern Ireland
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 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 disguised as ERU-Gardai, along with a gunman disguised as a woman in a blonde wig and another gunman, stormed the Regency in north Dublin 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.
The court heard as he was driving Mr Hutch north on March 7, 2016 that tracking and audio equipment had been deployed by the Garda National Surveillance Unit on Dowdall’s Toyota Land Cruiser Jeep.
Brendan Grehan SC for Mr Hutch and prosecutor Sean Gillane SC had presented their arguments earlier this week.
Mr Grehan argued that the approval for the audio device was “unlawfully granted” by a district court judge due to a “lack of candor” in the information provided to him by the NSU.
He said the judge should have been told a location tracker had already been authorized for the jeep and there was a chance it might enter Northern Ireland.
He also said there were no proper records of the district court’s request.
On the issue of covert recording in the North, Mr Grehan said the Criminal Justice (Surveillance) Act 2009 was clear that a surveillance device license could only be valid within the State.
He also argued that his client’s right to privacy under the Constitution and the European Convention on Human Rights was not adequately respected.
Mr. Gillane countered that the NSU had been completely frank with the district judge by presenting the grounds for the application “in black and white”.
These included suspicions that Dowdall had previously traveled north to meet the Continuity IRA and it was always in the state’s case for its Jeep to “go north,” he said.
The NSU’s application document is the record of what the judge was told, he said.
The audio device was meant to record conversations when there was no other option and the tracker was separate, he said.
Mr Gillane said he had no extraterritorial claim in relation to Garda surveillance. Instead, he argued that the beetle was an “inanimate object” and records he “accidentally” made crossing the border into Northern Ireland were admissible in evidence here so long as the device was lawfully used, accessed and used in the Republic will be downloaded.
He said the defense’s contention that the law does not allow such devices to be used across borders could not be correct, as it would mean that the Oireachtas were “blind, deaf and unaware” of the existence of the northern border and the law useless in investigating serious crimes such as terrorism or drug trafficking.
Mr Hutch’s expectation of privacy was “dampened” as he was in someone else’s vehicle talking about murder, he said.
In response, Mr Grehan said prosecutors were treating the bug as if it had a mind of its own and if prosecutors were right it could go anywhere in the world and the Gardai could use what he recorded as evidence.
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.
“Secretly collecting people’s voices is surveillance, everything else is secondary,” he said.
Regarding his client’s data protection rights, he argued that prosecutors could not take the end-justifies-the-means approach and attempt to retrospectively justify an interference with those rights.
https://www.independent.ie/irish-news/crime/regency-trial-illegally-taped-gerry-hutch-conversations-can-be-used-in-evidence-in-the-interest-of-justice-42190897.html Regency trial: Illegally recorded Gerry Hutch conversations may be used in evidence ‘in the interest of justice’