The Court of Criminal Appeal has quashed the convictions of and ordered a retrial of three men jailed for the 'tiger kidnapping' of the family of a Securicor driver and forcing him to hand over €2.28m in cash.
In 2009 Jason Kavanagh (aged 35), of Parlickstown Court in Mulhuddart, and Mark Farrelly (aged 39), of Moatview Court in Priorswood, 63-year-old Christopher Corcoran from Bayside Boulevard were found guilty of falsely imprisoning Paul Richardson, his wife and their two sons on March 13 and 14, 2005 and robbing €2.28m from Mr Richardson and Securicor on the same date.
The trial lasted for 66 days. All three denied the charges. Mr Farrelly and Mr Kavanagh were jailed for 25 years, while Mr Kavanagh was sent to prison for 12 years by Judge Tony Hunt. All three appealed their convictions.
Today the CCA held their convictions "could not stand" on the grounds that evidence used during their trial was obtained on foot of warrants which the Supreme Court has found to be defective.
As a preliminary point of their appeal their lawyers argued their convictions were unsafe as during the course of the Garda investigation into the robbery the homes of each of the men were searched pursuant to warrants issued by the Garda Superintendent who was one of senior officers involved in the case.
The superintendent issued the warrant under Section 29 of the 1939 Offences against the State Act. Evidence in relation to the warrants was used by the prosecution during the men's trial.
The mens' lawyers argued claimed the warrants were defective in light of Supreme Court decision in another case (the Damache case) that Section 29 (1) of the Offences Against the State Act was repugnant to the Constitution because it permitted a search of a person’s home on foot of a warrant not issued by an independent person.
Article 40.5 of the Constitution expressly provides a person’s home is inviolable and shall not be forcibly entered except in accordance with law.
The Damache case related to Ali Charaf Damache, who was arrested as a suspect in an alleged conspiracy to murder Swedish cartoonist Lars Vilks over his drawing of the prophet Muhammad.
Mr Damache successfully challenged the validity of a warrant issued under Section 29 to search his home by a Garda involved in investigating the matter. The three men's legal team argued that they were entitled to avail of the Damache ruling.
This morning the three-Judge Court of Criminal Appeal comprised of the Chief Justice Ms Justice Susan Denham, Mr Justice Michael Moriarty and Mr Justice Gerard Hogan agreed that the Supreme Court's ruling in the Damache case applied to the three men's cases.
Giving the courts ruling the Chief Justice Ms Susan Denham said that the three were entitled to rely on the findings of unconstitutionality in the Damache case and that the warrants issued under Section 29 of the 1939 Act are invalid.
No other issues of the three men's appeal were considered the Chief Justice added.
"Thus the applications are entitled to succeed on the preliminary issue" said the Chief Justice quashing the appeal. The court also ordered a retrial in each of the applicants.