Gerard "The Monk" Hutch has failed in a bid to recoup his legal costs from the State after he was acquitted seven weeks ago of the murder of Kinahan Cartel member David Byrne at the Regency Hotel.
Delivering the court's judgement on Mr Hutch's costs application on Wednesday evening, Ms Justice Tara Burns, sitting with Judge Sarah Berkeley and Judge Grainne Malone, said that an unfairness did not arise in denying the applicant his costs and there was a reasonable possibility that nothing was carried out by the Hutch Organised Crime Group (HOCG) without Mr Hutch's "say so".
Ms Justice Burns, presiding, in the non-jury court, said that while the court had rejected the prosecution case that Mr Hutch was one of the shooters in the Regency attack, the court was satisfied that he was recognised as the "figurehead" and "patriarchal figure of the HOCG", an organisation which the court had found was responsible for and had orchestrated the attack.
She said that although the applicant was acquitted of the murder charge against him, there were other relevant considerations in the mix. "He was involved in serious criminal conduct underlying the charge against him in terms of his possession of the guns from the Regency which he knew had been used to murder David Byrne," she stated.
The judge said in the context of the murder charge, the Special Criminal Court was asked to determine that he had possession of the three AK-47's by March 7th, 2016 at least, as part of the case that he was guilty of the murder of Mr Byrne. She went on to say that: “The court was satisfied beyond reasonable doubt this was the case, this was serious criminal conduct by him accompanied by specific knowledge the guns were used in the Regency attack and had been used to murder David Byrne.”
In summary, Ms Justice Burns ruled that it was not unfair to deny Mr Hutch his costs and refused his application.
'Vindicated'
Earlier on Wednesday, lawyers for Mr Hutch argued that he was "vindicated" by the Special Criminal Court after he was acquitted of the murder of Mr Byrne at the Regency Hotel last April and that there was "no strong, valid ground" as to why their client shouldn't be entitled to his legal costs for the trial.
Mr Hutch’s defence lawyer Brendan Grehan SC alongside Michael D Hourigan BL submitted that it would be unfair if their client, who was not legally aided, was "denied the substantial costs of defending himself from the allegation and particularly unfair if there was any suggestion that he could or would have been charged with other offences". Counsel said whilst Mr Hutch was acquitted of the only charge brought against him, it was important to "lay down as a marker" that "others decide what charges are brought".
Mr Grehan told the non-jury court that the initial decision to prosecute his client for the offence of murder based on secret audio recordings was "a wrong decision", which had since been vindicated by the Special Criminal Court's judgment. "In our submission the prosecution for murder was never warranted on the audio in the context of which there were multiple matters which the court had averred to. In terms of what Mr Hutch knew or didn't know, there isn't one single unambiguous admission of involvement of what happened in the Regency through ten hours of unguarded conversation," he submitted.
The lawyer added that "it certainly was the case" that former Sinn Fein councillor and convicted torturer Jonathan Dowdall had "played his hand" to exert the maximum amount of pressure on the prosecution before giving a statement to gardai on the eve of the trial, which had resulted in a fundamental reappraisal of the defence case. His side had not unduly elongated the trial and only sought a two-week adjournment after the DPP accepted Dowdall's plea to the lesser charge.
"One is left wondering what the prosecution case ever was before Jonathan Dowdall came on board. Dowdall coming on board, rather than strengthening what was there in any way, had the opposite effect," he added.
The lawyer said his lengthy cross-examination of Dowdall was necessary to expose "his true nature" and the issue of his credibility given the allegations he was making against Mr Hutch. The barrister said the stance taken by the defence had been vindicated by the court's judgement.
Mr Grehan said it did seem extraordinary that the kind of due diligence that resulted in the cross-examination of Dowdall by the defence did not appear to have occurred in the prosecution's examination of him as a witness. "The type of due diligence regarding the gathering of information on Dowdall does not seem to have been done prior to him being called as a witness," he said.
Taking the court’s findings about other matters into account in deciding costs would be contrary to the principle of innocent until proven guilty, and create a danger of guilt by association especially when operating in the context of other family members, counsel said. People can choose their friends but not their family, he stated.
Mr Grehan said Mr Hutch was acquitted of the only charge against him and that the Special Criminal Court had given detailed and very firm findings in their judgement so that no one was left in any doubt as to why it arrived at its conclusion.
Mr Grehan went on to say there was no dispute that the starting point for an award of costs is a person being acquitted and that the actual result of a prosecution is still the most important consideration when regarding the award. He said Mr Hutch on the advice of his lawyers had not made an application for legal aid.
However, Sean Gillane SC, for the Director of Public Prosecutions (DPP), argued that the costs issue comes down to judicial discretion in relation to the facts and circumstances of the case. He stated that it was not unfair to remind the court of some of the findings it made in relation to Mr Hutch as Mr Grehan had submitted that the court's verdict "involved some kind of vindication of Gerard Hutch". "The court's verdict does not amount to an approbation of him or his conduct," he argued.
Mr Gillane said he took "full responsibility" for decisions made in the carriage of the prosecution case. There was, he said, an established sequence of Mr Hutch's association with firearms used to carry out the killing of Mr Byrne. "It's not a passing or glancing association. It's an involved possession and contribution to what the court found to be an orchestrated series of events to have these weapons moved," he said.
Mr Gillane said it was clearly not the law that a conviction was required for an award of legal costs and that Mr Hutch had previously conducted himself in "such a way as to bring suspicion on himself".
This investigation involved a number of agencies, the collection of an “incredible” range of material and the assessment of evidence in connection with a number of people. "This was a prosecution of originally five people, against four of whom convictions were recorded and substantial sentences imposed and in terms of the global picture the prosecution [of Mr Hutch] was absolutely warranted," he submitted.
The barrister said this was a case where an award of costs should not be exercised in Mr Hutch's favour and urged the court not to award costs in this matter.
Acquittal
Mr Hutch (60) was seeking an order from the Special Criminal Court providing for his legal costs on the basis of his acquittal by the non-jury court last April. The hearing on the costs application, which the State opposed, went ahead on Wednesday on the first day of the Trinity term before the three-judge court.
Last April following the 52-day trial at the Special Criminal Court, Mr Hutch was acquitted by the three judges of the murder of Mr Byrne and walked from court a free man. It is believed Mr Hutch left Ireland for Spain last month but it is unknown if the father-of-five has permanently moved back to Spain.
In acquitting Mr Hutch, the Special Criminal Court found that it could not rely on the unsupported evidence of Jonathan Dowdall. It also found that surveillance audio recordings of a conversation between Dowdall and Mr Hutch did not corroborate Dowdall's claim that Mr Hutch had confessed to being one of the hitmen at the Regency Hotel where Mr Byrne was shot dead.
In returning judgement on the murder charge, Ms Justice Burns said that a reasonable possibility arose on the evidence that the Regency attack was planned by Gerard Hutch's older brother Patsy Hutch and that Gerard Hutch stepped in, as head of the family, to attempt to sort out the aftermath "particularly as his own life was at risk". She also remarked that Patsy Hutch was centrally involved in the movement of the weapons based on the evidence given by the National Surveillance Unit.
The judge said the court was of the opinion that the segments of the audio which the prosecution sought to rely on did not inevitably give rise to the inference that Mr Hutch was present at the Regency. At most, the segments gave rise to a possible inference that Mr Hutch gave the go-ahead for the Regency, she said. "However, the case against Mr Hutch is not one of common design but rather participation, although one wonders what the case was intended to be before the introduction of Jonathan Dowdall as a prosecution witness," she continued.
Referring to Dowdall, the court was of the view that the State's witness "being an accomplice and a potential witness protection entrant is a witness in respect of whom great care has to be taken in relation to his allegations. In the instant case, in light of the serious difficulties which his evidence presents for the court as outlined above, the court is not prepared to act on his statement alone and requires corroborative evidence of his allegations."
Mr Hutch (60), of The Paddocks, Clontarf, Dublin 3, had denied the murder of Kinahan Cartel member David Byrne (33) during a boxing weigh-in at the Regency Hotel on the Swords Road, Whitehall, Dublin 9 on February 5th, 2016.
It was the State's case that Gerard Hutch was one of two gunmen disguised in tactical gear who shot Kinahan Cartel member Byrne in a "brutal and callous execution" as the victim scrambled on the ground of the Regency Hotel amongst "complete carnage".
Mr Hutch, who was wanted to face trial in Ireland, was arrested in Spain on August 12th, 2021 on foot of a European Arrest Warrant which was issued the previous March. On September 29th, 2021 Mr Hutch appeared before the Special Criminal Court and was charged with the murder of David Byrne at the Regency Hotel on February 5th, 2016. He was remanded in custody, where he remained until the conclusion of his 52-day trial on April 17th last, when he walked free from court.
Mr Hutch had arrived under armed escort on the evening of September 29th, 2021, to Casement Aerodrome, Baldonnell in Dublin having flown from Madrid onboard a Casa 235 military plane
Regency shooting
The three-judge, non-jury Special Criminal Court previously heard that the shooting took place during a boxing weigh-in at the Regency Hotel. A man dressed as a woman and another man wearing a flat cap, who were armed with handguns, stormed the hotel followed by three people dressed in tactical-style garda uniforms carrying assault rifles.
Mr Byrne (33), from Crumlin, was shot by two of the tactical assailants and further rounds were delivered to his head and body at the hotel in Whitehall, Dublin 9.
Mr Byrne died after suffering catastrophic injuries from six gunshots fired from a high-velocity weapon to the head, face, stomach, hand and legs.
Last month, two long-time friends of the Hutch family received combined jail sentences totalling 17-and-a-half years at the Special Criminal Court for acting as getaway drivers during the notorious Regency Hotel attack in 2016 during which Mr Byrne was murdered.
The court imposed a sentence of nine years on Paul Murphy (61), of Cherry Avenue, Swords, Co Dublin and jailed his co-accused Jason Bonney (52), of Drumnigh Wood, Portmarnock, Dublin 13 for eight and a half years.
Jonathan Dowdall (44) – a married father of four with an address at Navan Road, Cabra, Dublin 7 – was due to stand trial for Mr Byrne's murder alongside Mr Hutch but pleaded guilty in advance of the trial to a lesser charge of facilitating the Hutch gang by making a hotel room available for use by the perpetrators the night before the attack.
Dowdall - who previously served as an elected Sinn Fein councillor in the north inner city ward in May 2014 and resigned less than one year later - was jailed by the Special Criminal Court for four years for the facilitation offence.
Following Dowdall's sentence on October 3rd, 2022, a nolle prosequi – a decision not to proceed – was entered on the murder charge against the former Dublin city councillor.
