Gerry Hutch’s lawyer says ‘illegally’ bugged conversations should not be used in evidence

Brendan Grehan SC argued gardai who got authorisation for the covert listening device from a district court judge were not as candid as they should have been because of a “culture of secrecy and secrets."

Mr Grehan also maintains the state was acting illegally when it continued to gather surveillance from the jeep while it was in Northern Ireland and it would be unlawful to use the audio in evidence.

He today challenged the admissibility of the recording that was made as Mr Hutch and Dowdall travelled to Northern Ireland for alleged meetings with republicans in the aftermath of the Regency shooting.

The three judges of the non-jury court will rule on whether to allow the evidence after hearing prosecution arguments.

Mr Hutch is charged with 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 organisation responsible by providing cars used to drive the assailants away after the shooting.

Mr Byrne (33), a Kinahan gang member, was killed when three assault rifle-wielding masked raiders, disguised as ERU gardai, stormed the Regency in north Dublin along with a gunman dressed as a woman in a blonde wig, and another armed man in a flat cap.

The attack on a boxing weigh-in event fuelled a bloody feud between the Kinahan and Hutch crime gangs.

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 started, he instead admitted facilitating Mr Byrne’s killing by booking a hotel room for the perpetrators.

The court has heard when he drove Mr Hutch north on March 7, 2016, tracking and audio devices had been deployed on Dowdall’s Toyota Land Cruiser jeep by the garda National Surveillance Unit.

The prosecution is seeking to use in evidence a 10-hour recording of conversations from that journey.

The audio was played over the last three days in a voir dire, or trial within the trial over the admissibility of the evidence.

The first part of Mr Grehan's challenge is to the authorisation for the audio device which he said was “unlawfully issued” by a district court judge on foot of the information provided by the NSU.

He argues no evidence gathered on the foot of it should be admitted.

Mr Grehan said a pre-prepared document was used which in effect simply requires a judge to put their signature on the end.

There was no sworn evidence or proper record kept at the district court when the authorisation was given, he said.

He also argued there was a “lack of candour” in the information the applying officer provided to the district judge.

The NSU had themselves authorised the use of a location tracking device on Dowdall’s jeep 36 hours earlier but the judge had not been told this, Mr Grehan said.

Mr Grehan said the district judge should also have been told the jeep may be travelling outside the jurisdiction.

Both matters may have provoked an enquiry from the judge, who he had no doubt “diligently read all these matters” that were put before him.

He said “there’s a certain culture of secrecy that may be a throwback" to the fact that the garda Crime and Security intelligence service was operating surveillance long before the Surveillance Act 2009 came into being, "without any form of oversight.”

He said disclosure to the district judge was not as candid as it should have been.

He accepted that the lack of candour was “perhaps unintentional” in circumstances where there appeared to be this culture of secrecy or secrets in Crime and Security, which “may be a legacy of the past.”

The second part of the challenge was on what Mr Grehan said was the “illegal use” of the audio device outside the jurisdiction.

The "bug" deployed by gardai recorded about ten hours of conversation but for almost eight of those hours, from 3.10pm to 10.50pm, the Land Cruiser was in Northern Ireland, he said.

He said the Criminal Surveillance Act 2009 is "as clear as can be" that an authorisation for a surveillance device can only apply within the State.

He argued this illegal operation of the Act was something a judge could never authorise and the prosecution was now seeking to “wheel it in” as evidence and say “none of that matters.”

That did not adequately respect his client’s right to privacy under the Constitution and the European Convention on Human Rights.

There was nothing in the Act to suggest it could apply outside the state and “what occurred by way of harvesting conversations from within Northern Ireland was unlawful… and ought to be excluded by the court.”

Prosecutor Sean Gillane is due to reply to Mr Grehan’s submissions on Monday.

The trial continues before Ms Justice Tara Burns, Judge Sarah Berkeley and Judge Grainne Malone.