Monk falls silent as judges rule against him in bugging battle 

Judge ruled the evidence on the tapes gathered in the North was unlawful and this was 'significant', but said they ought to be included into evidence 'in the interest of justice'

Judge said Gerry Hutch, pictured, and Jonathan Dowdall were 'clearly discussing criminal behaviour' on the tapes, including a 'combative strategy' on behalf of the Hutch family, and that 'criminality is generally being discussed'. File picture: RollingNews.ie

When Ms Justice Tara Burns took her seat flanked by her fellow judges Sarah Berkeley and Gráinne Malone, the amount of paper she was carrying was akin to a tome.

It was clear this would take some time.

In just a few days, the judges had compiled a ruling that took just under an hour and a half to deliver before the Special Criminal Court on Friday morning.

The stakes were high.

Part of the “core” of the State’s case against Gerard ‘The Monk’ Hutch, accused of the murder of David Byrne in the Regency Hotel, was on the line.

As he entered court, the Monk shared a joke with his co-accused Paul Murphy and Jason Bonney. But when the judges took their seats, he was deadly serious, listening intently through his headphones as Ms Justice Burns began speaking.

Ms Burns was clear and forceful in her delivery. And she was thorough.

She began by stating what was at play here, namely the recording of the conversation from when gardaí bugged the car of Jonathan Dowdall on March 7.

He and Hutch travelled to the North that day. It is the State’s case they met with republicans with a view to getting them to help broker a peace deal with the Kinahans amid the escalating gang feud.

“Identity is not an issue,” Ms Burns said, referring to the fact it is not disputed who is speaking on this recording. It is indeed Jonathan Dowdall and Gerry Hutch.

She noted Brendan Grehan SC, for Hutch, had expressed his desire for the audio not to be played until there was a ruling on its admissibility. The court did it the other way round. They listened to it all first, and then made the ruling on its admissibility.

It will be the three judges that decide the verdict in this case, and Ms Justice Burns was clear that if “ultimately” a decision was made not to admit to evidence, “it would not have any regard to the audio whatsoever”.

Mr Grehan had challenged the admissibility of the tapes on two grounds — the first on the granting of the warrant to place the bug in the first place and also the conversations captured while the pair were in the North.

Ms Burns thoroughly dismissed the first ground and said the court was satisfied that the authorisation for the bugging device issued by a sistrict court judge was a valid authorisation.

Things got interesting

It was then that things got interesting.

Mr Grehan had frequently alluded to the recordings as “illicit fruit” and Ms Justice Burns took up that metaphor as she turned to “the fruits”.

And which way would it go?

For the lay listener, amid the quoting of previous legal precedence and drawing on previous cases, it is about paying close attention for the clues and hints as to what the overall ruling might be.

At first, it had appeared Mr Hutch would be successful in his bid.

Referencing a particular aspect of what Mr Grehan had put forward, she said there was “merit to that argument”. 

She said it “improbable” that the legislature would have granted powers to overturn principles and infringe on rights without setting out their intention with clarity.

And there we had it, the authorisation to bug Dowdall’s car “was only effective within the State”. The parts of the 10-hour recording, a good seven hours of them, when Hutch and Dowdall were in the North were “unlawfully obtained”.

The thought immediately turned to the rest of the recordings — what was said south of the border that is of relevance to the prosecution’s case? Has the State’s case lost its “core” if the Northern Ireland conversations were omitted?

But Ms Justice Burns was not finished.

Having outlined how the material on the recording was unlawfully gathered, she pondered if it could be admitted into evidence.

She said the unlawfulness related to the gathering of material in the North was “significant”. “The power to gather this evidence didn’t exist,” she said.

But, there was no mala fides, or bad faith, from the gardaí. They were under the impression what they were doing was lawful. And what about the Monk’s right to privacy? Ms Justice Burns looked at that in great length.

'Clearly discussing criminal behaviour'

She said the pair were “clearly discussing criminal behaviour” on the tapes, including a “combative strategy” on behalf of the Hutch family, and that “criminality is generally being discussed”.

Although, at this point, the court had not yet determined the significance of what is said on the tapes, the judge said.

And, having ruled the evidence on the tapes gathered in the North was unlawful and this was “significant”, they ought to be included into evidence “in the interest of justice”.

The members of the Garda National Surveillance Unit “acted in good faith” and any illegality of what they were doing was “unknown” to them.

And so that was that.

Having appeared initially to have been going one way, the judges’ ruling then went another.

In a battle it really would not have wanted to lose, the State still has a core part of its case.

“I accept the court’s ruling as I must,” Mr Grehan said, standing up immediately as Ms Justice Burns finished.

Having failed in this bid, Mr Grehan is already planning another.

Next week will begin with Hutch’s legal team challenging the admissibility of the evidence of Jonathan Dowdall in this case. After that, it will finally be Dowdall himself taking the stand.

“We’ll certainly deal with Mr Dowdall this side of Christmas,” Mr Grehan said.

“Barring something falling out of the sky.” 

 Given the twists and turns so far at the Special Criminal Court in this case, not even that would cause a surprise at this stage.