The Court of Criminal Appeal has reserved judgement in the case of the only person convicted in relation to the Northern Bank robbery, who has brought the first appeal on the basis of a recent Supreme Court ruling on search warrants issued under a key piece of anti-terrorist legislation.
In April 2009 financier Ted Cunningham (aged 63) was jailed for 10 years by Judge Cornelius Murphy after a jury found him guilty by majority verdicts of laundering more than £3m from the robbery of the Northern Bank in Belfast in December 2004.
Cunningham, of Farran, Co Cork, had pleaded not guilty at Cork Circuit Criminal Court to 10 charges of money-laundering.
His trial heard that detectives uncovered £2.4m in a cupboard in the basement of Cunningham’s home during a search in 2005, which he claimed was the proceeds of the sale of a gravel pit to a group of Bulgarian businessmen.
In February this year the Supreme Court declared that section 29 (1) of the Offences Against the State Act (as inserted by section 5 of the Criminal Law Act 1976) was repugnant to the Constitution, as it permitted a search of a person’s home on foot of a warrant not issued by an independent person.
The court found that Article 40.5 of the Constitution expressly provides that a person’s home is inviolable and shall not be forcibly entered except in accordance with the law.
The court made its ruling in the case of Ali Charaf Damache, where a search warrant had been issued by a member of the garda team investigating the matter. Section 29 has been routinely used in the past by gardaí to search the homes of suspects in terrorist cases.
Damache was living in Waterford when he was arrested as a suspect in an alleged conspiracy to murder Swedish cartoonist Lars Vilks over his drawing of the prophet Muhammad.
Counsel for the applicant, Mr Paul McDermott SC, told the court that the rules in relation to the admissibility of the evidence against Cunningham were “substantially affected” by the decision of the Supreme Court in the Damache case and this was the core component of the appeal.
He said that Superintendant Tony Quilter, who was in charge of the garda investigation, had issued the warrant to search Cunningham’s home but was not an independent person as envisioned.
Mr McDermott said that the £2.4m gleaned from the search of Cunningham’s home was the sole evidence against the applicant in relation to one count and amounted to the substantive evidence against him on the remaining nine counts.
He said that the facts of the case came “four square” within the facts of the Damache case and that the appeal was in no sense a “floodgates” case.
Mr Tom O’Connell SC, for the State, told the court that, having considered all previous cases, there was no “general principle of retrospectivity” open to the court, which was being asked to apply a ruling on a recent case to a warrant issued in 2005.
He said that nobody in the applicant’s position had succeeded in bringing a case subsequent to a declaration of unconstitutionality by the Supreme Court and to grant the applicant the benefit of the Damache case would be “unique”.
Mr O’Connell said that when the case came before the courts the warrant to search Cunningham’s home was presumed to be constitutional and no issue was raised at trial with regard to its issue by a non-independent person.
He said the applicant was in effect trying to “piggy-back” on the decision in the Damache case and that it could not be in the interest of public order to revisit the case.
Mr O’Connell told the court it had been open to Cunningham to challenge the validity of the warrant issued by Superintendant Quilter via judicial review before the Supreme Court ruling this year.
Presiding judge Mr Justice Adrian Hardiman said the court would reserve judgement until a later date.