Lawyers for Gerard ‘The Monk’ Hutch, who is accused of the murder of Kinahan Cartel member David Byrne at the Regency Hotel, have argued that "a cloak of secrecy" will descend over their client's case if gardai from the National Surveillance Unit are allowed to give evidence anonymously.
Following lengthy legal applications today by the prosecution and defence counsel Brendan Grehan SC for Mr Hutch, the Special Criminal Court will rule on Thursday on whether 27 officers from the National Surveillance Unit (NSU) can give evidence anonymously and their names, which are handed in writing into the court, can be withheld from the defence and from the public.
Mr Hutch (59), last of The Paddocks, Clontarf, Dublin 3, denies the murder of Mr Byrne (33) during a boxing weigh-in at the Regency Hotel on February 5th, 2016.
The prosecution made an application to the three-judge court on Wednesday that the public should be excluded from the court when members of the NSU give evidence and that each member should be "anonymised" according to an alphabetical letter, which is the same letter assigned to them in every case.
Objection
Mr Grehan, for Mr Hutch, objected to the application and said the Special Criminal Court did not have the jurisdiction to make the order. He said that the legal basis for the application should be established.
Fiona Murphy SC, prosecuting, called Detective Superintendent Eugene Lynch, the head of the Garda National Surveillance Unit, who outlined his concerns in connection to the reporting of the names, addresses and physical description of its members.
Det Supt Lynch asked the court to prohibit the reporting of such details "to protect current covert operations and the integrity of future ones". He said if his officers details were read aloud in court it would curtail the ability of the State to prevent terrorist attacks and jeopardise investigations into serious crime.
Det Supt Lynch agreed with Ms Murphy that 27 members of the NSU are in the book of evidence and that six of them have since retired.
Under cross-examination by Mr Grehan, defending, Det Supt Lynch said that he had not sought to protect his own identity because he is now in a management role.
"But you are here asserting a general right that NSU personnel should not be identified?" pressed Mr Grehan. "Yes as they are involved in operations currently," he replied.
Retired officers
Mr Grehan told the witness that there was obviously a premium in protecting those officers currently involved in the NSU as it could endanger the situation but asked the witness what protection he was seeking if someone had left their role in the NSU and had since retired. "Some of their families are not aware that they were involved in high risk operations at a covert level,' replied Det Supt Lynch.
Referring to the trial of Real IRA leader Michael McKevitt, Mr Grehan said members of the NSU who gave evidence had been identified.
McKevitt was jailed for 20 years by the Special Criminal Court in 2003 after he was convicted of directing the activities of a terrorist organisation between August 1999 and October 2000.
Mr Grehan put it to the witness that if the Special Criminal Court decided it had the power to grant the application, would he be seeking it on a "blanket basis" whether his members were active or retired. Det Supt Lynch said he was.
Jurisdiction
In her submissions to the three judges, Ms Murphy said Det Supt Lynch had given particular reasons for the anonymity sought and that he had a genuine concern for the safety of the witnesses and their future engagement in such activities. The three-judge court had jurisdiction to make the order, she added.
In reply, Mr Grehan argued that nowhere is it stated that the Special Criminal Court "can make up rules" to provide for the anonymising of witnesses that appear before it. "The rule in this case that the prosecution seeks to rely on is ultra vires to the Offences Against the State Act 1939," he added.
Mr Grehan said it was not possible for witnesses in the Central Criminal Court to get anonymity as it was in the Special Criminal Court and asked the three judges not to depart from "the norm" and from what is done in every other case.
The lawyer asked the court to be "scrupulous" in ensuring that "a clear basis of necessity is made out" for the application and that there is no "overreaching".
"All of the CCTV civilian witnesses came up, gave their names and said where they were from; they didn't have any protection. Neither do any other gardai who are in court day in and day out where they are identified," Mr Grehan continued.
A "blanket application" was being made, he said, without the necessary justification for why it should apply to people who are not on active NSU duty. "An argument could be made by any of the gardaí in the country that they are entitled to anonymity, but that isn't the rule that applies. It should be seen as a very, very exceptional dispensation to be granted," he said.
Presiding judge Ms Justice Tara Burns asked Mr Grehan how he said that his client's right to a fair trial was being interfered with.
Mr Grehan said he could not point to a specific fair trial right other than that "a cloak of secrecy" was being "put over" this part of the case. "It reflects on him in the general perception of his trial taking place before this court," he added.
He suggested to the court that if one of the NSU witnesses had been the subject of disciplinary proceedings for giving false evidence then the defence would be "shut out" from knowing this where otherwise one might have recourse if this process wasn't adopted.
Counsel for the two co-accused Jason Bonney and Paul Murphy adopted Mr Grehan's submissions.
In the opening speech, Sean Gillane SC, prosecuting, said the court would hear evidence that Jonathan Dowdall drove Mr Hutch to a meeting in Strabane in Co Tyrone on March 7th, 2016.
Mr Byrne, from Crumlin, was shot dead at the hotel in Whitehall, Dublin 9 after five men, three disguised as armed gardaí in tactical clothing and carrying AK-47 assault rifles, stormed the building during the attack, which was hosting a boxing weigh-in at the time. The victim was shot by two of the tactical assailants and further rounds were delivered to his head and body.
Mr Byrne died after suffering catastrophic injuries from six gunshots fired from a high-velocity weapon to the head, face, stomach, hand and legs.
Mr Hutch's two co-accused - Mr Murphy (59), of Cherry Avenue, Swords, Co Dublin and Mr Bonney (50), of Drumnigh Wood, Portmarnock, Dublin 13 have pleaded not guilty to participating in or contributing to the murder of David Byrne by providing access to motor vehicles on February 5, 2016.
Ms Justice Burns, presiding, sitting with Judge Sarah Berkeley and Judge Grainne Malone will rule on the issue on Thursday afternoon.
