By Ruaidhrí Giblin
Brian Rattigan remains in jail this evening after the Court of Appeal dismissed an appeal against his conviction for directing the supply of drugs from prison.
Rattigan (37), formerly of Cooley Road, in Drimnagh, had pleaded not guilty at the non-jury Special Criminal Court to possession of heroin and two counts of possession of the drug for sale or supply on Hughes Road South, Walkinstown, Dublin 12 on May 21st, 2008.
The three-judge Special Criminal Court agreed with the prosecution case that Rattigan was the director of a drugs gang conducting a €1m heroin deal. He became the first drug dealer to be found guilty of charges connected to directing the supply of drugs while in prison.
During the trial he was cleared of two counts relating to the possession of two mobile phones at Cell 42, E1 Landing, Portlaoise Prison while an inmate at the prison on May 22, 2008, which he had also denied.
Sentencing Rattigan to 17 years in prison, Mr Justice Paul Butler, presiding, said the Special Criminal Court had regard to the “very frightening” evidence of drugs expert Detective Sergeant Brian Roberts, who detailed the effects heroin had on society as well as the “alarming” 3,972 drug-related deaths in Ireland between 2004 and 2010.
The sentence, imposed on March 20, 2013 and backdated to June 2008, was directed to run in tandem with a life sentence he was then serving for the murder of 21-year-old Declan Gavin outside an Abrakebabra fast-food restaurant in Crumlin on August 25, 2001.
However, in December last year, the Supreme Court quashed Rattigan's conviction for the murder of Mr Gavin over closing remarks made by the trial judge to the jury which, a majority of the Supreme Court found, had gone further than was desirable.
Rattigan moved to appeal his drugs conviction in July on eight grounds related to search warrants, the admission of certain evidence as well as rulings made by the Special Criminal Court in respect of the value and purity of drugs.
Dismissing his appeal today, Mr Justice John Edwards, who sat with Mr Justice John Hedigan and Mr Justice Brian McGovern, said the three-judge court was satisfied that Rattigan’s trial was satisfactory and his conviction safe.
Rattigan acknowledged the court’s decision with a nod to the judges and shook the hands of senior detectives in the case who were sitting at the back of the courtroom, after judgment was delivered. Rattigan and the senior gardaí shared brief pleasantries before he was lead away through the custody area and returned to prison.
His lawyers submitted that the trial court erred in upholding the lawfulness of various search warrants, erred in admitting evidence relating to a mobile phone, erred in accepting Garda expertise in respect of the value of the drugs seized, erred in convicting Rattigan where there was no evidence of the purity of the drugs and erred in convicting Rattigan in circumstances where, it was contended, there was insufficient evidence that he was in possession of the drugs seized.
His barrister, Brendan Grehan SC, submitted that the prosecution had come to court “without bothering to test” any of the samples of the drugs for purity. In a case of such magnitude, the idea that that wasn’t done was “extraordinary”, Mr Grehan said, as it was not possible to say how much heroin was present in the substance that was usually “bulked up”.
In the UK, Mr Grehan said the authorities had moved from measuring market value to measuring purity. “It is at least scientific”. He referred to the historical case of a man caught with a tea spoon’s worth of drugs in two pounds worth of substance and added “he should have been convicted of fraud”.
In a 44-page judgment, Mr Justice Edwards said the evidence of Sergeant Roberts was properly admitted, as his expertise in the profiling of actors, activities and methods of the drugs trade was sufficient for the trial court to be satisfied that he had the necessary knowledge to testify as an expert.
He said then Detective Superintendent Brian Sutton gave evidence in the trial that the market value of a gram of heroin, in May 2008, would have been €200. He stated that 4,973.6 grams of heroin, the quantity in question, would therefore have had a street value of €994,720.
His evidence was that the purity of heroin in Ireland ranged from 30% to 50% but that the street value did not depend on the purity of heroin in the deal. He said it wasn't relevant from the gardaí's perspective, because at street level "the buyer is blind" as to what purity the substance might be.
Mr Justice Edwards said the street value was determined by the weight or volume involved in the deal regardless of its purity and the Special Criminal Court was entitled to draw the inferences that it did.
He said the trial court’s ruling with respect to deficiencies in the form of the warrant to search Hughes Road South was open to it and no error could be found in the trial court’s approach. Furthermore, he said there was no basis to criticise the trial court’s ruling on the warrant to search the cell in Portlaoise Prison.
Mr Justice Edwards said it was “fanciful” to suggest that Rattigan was prejudiced because it was not possible to make out the name of the judge on a warrant to search a premises on the Cooley Road. Rattigan’s lawyers argued that because he was tried before three judges of the Special Criminal Court, one of whom being a District Court judge, there was no way of knowing if the judge who signed the warrant was the same judge on the panel. Mr Justice Edwards said a simple enquiry to the District Court office would have “solved the mystery for anyone concerned to verify ownership of the illegible signature”.