Judgment spells out issues with evidence against Hutch

Updated / Thursday, 20 Apr 2023 07:31

Legal Affairs Correspondent

Legal Affairs Correspondent Orla O’Donnell examines the ruling of the Special Criminal Court and how the verdict of not guilty was reached in the case of Gerard Hutch.

The writing was on the wall for the prosecution case against Gerard Hutch from the moment Ms Justice Tara Burns turned the court’s focus on him, just before 2pm yesterday afternoon.

Her first words were to spell out what the case against Mr Hutch was about but also, more crucially, what it was not about.

The case against him was that he was one of the two shooters who murdered David Byrne at the Regency Hotel, she said.

It was not the prosecution’s case that he planned the operation but wasn’t present. Again, the judge stressed, it was the prosecution case that he was present as an actual participant and an actual shooter.

It became clear that the court did not believe the prosecution came close to proving its case beyond a reasonable doubt.

In fact, the court found there was no evidence that Mr Hutch was present at the Regency or that he was directly involved in the murder of Mr Byrne and it found a number of reasonable alternatives were possible.

The second fatal problem for the prosecution was that the case against Mr Hutch depended on the evidence of Jonathan Dowdall. He was a former successful businessman and Sinn Féin councillor, but was also a convicted torturer and found by the court to be a ruthless, callous, convincing liar.

Dowdall made two major allegations against Mr Hutch.

The first was that on 4 February 2016, the day before the Regency attack, Dowdall and his father gave a key card for a room in the Regency Hotel to Mr Hutch.

The second allegation was that a few days after the attack, Dowdall met Mr Hutch in a park in Whitehall where Mr Hutch admitted that he was at the Regency and that he and another man shot Mr Byrne.

Dowdall claimed Mr Hutch was agitated and upset after telling him this.

To corroborate Dowdall’s allegations, the prosecution relied heavily on a recording made of Mr Hutch and Dowdall as they travelled to Northern Ireland on 7 and 8 March 2016. The prosecution claimed the tapes provided independent evidence of Mr Hutch’s involvement in the Regency attack.

Judge Burns outlined the dangers of uncorroborated evidence from someone like Dowdall. As well as being an accomplice in the attack, she said he was also someone who may enter the Witness Protection Programme.

She noted the law in relation to uncorroborated evidence, quoting from a 1969 court ruling, which states that judges and juries must bear in mind that it is dangerous to convict on uncorroborated evidence from an accomplice.

The ruling continues that if, having given that warning due weight, the evidence is still so clearly acceptable that the judge or jury are satisfied beyond doubt of the guilt of the accused, to the extent that the danger is not present, then they can convict.

The Special Criminal Court judges were in no doubt that the evidence in this case in no way reached this threshold.

Judge Burns said Dowdall gave a statement about the Regency to gardaí, ten days before his trial for murder was due to commence.

“It cannot be said that Jonathan Dowdall found God or decided to do what was right,” the judge said. “He was acting out of his own self-interests” when other methods of stopping the proceedings had failed.

Ms Justice Burns said the court was of the view that Dowdall had obtained a significant benefit from providing the statement. He and his family would live looking over their shoulder, she said, but he now had a chance at life, instead of a possible murder conviction.

He had indicated in evidence that he would come back from this and had given himself that chance by providing the statement. The court had to have regard to this significant benefit in its considerations about his credibility, she ruled.

Scathing assessment

By far the most scathing passages of the judgment were reserved for the court’s assessment of Dowdall’s character.

Judge Burns noted that Dowdall was serving eight years in prison for false imprisonment, threats to kill and assault, offences she described as “shocking”. Dowdall had tied up and waterboarded a man he believed had been engaged in fraud against him.

The judge said it was disturbing that Dowdall had been involved in such a vicious attack and pointed out that he had been an elected Sinn Féin councillor, who was expected to adhere to certain standards.

She said it could be the case that people who carried out appalling crimes could still give truthful evidence. But she then proceeded to outline the catalogue of lies told by Dowdall, which gave rise to serious concerns for the court about his truthfulness.

The judge said Dowdall had called RTÉ’S Liveline programme with Joe Duffy after his arrest and gave a staunch denial that he had ever been involved in criminality.

That he was prepared to make these comments having been involved in the waterboarding incident, which had been taped, gave cause for concern about his reliability and his relationship with the truth, she said.

She mentioned that he had lied to another division of the Special Criminal Court and had told “lie after lie” to gardaí when he was arrested. The manner in which he told these convincing lies was extremely concerning, the judge said.

Finally, Judge Burns said, the tapes played to the court showed not a respectable, successful businessman and elected representative, but a “ruthless, base, callous criminal, involved in making bombs, suggesting assassinations of people, involved with the Hutch organised crime group and playing the system” even though he was an elected representative.

“Who is the Court dealing with?” she asked and said a significant question mark hung over his character and reliability.

The judge said she would have expected Dowdall to come to court to tell the whole story in a forthright manner, warts and all. But that was not the case.

He came to give specific evidence as contained in his statement but had “bizarrely” not envisaged a wider analysis of his involvement in the attack and his IRA connections.

In its ruling, the court gave examples of Dowdall’s reluctance to give certain evidence.

‘A bare-faced lie to the court’

These included his reluctance to acknowledge his relationship with Pearse McAuley “an infamous dangerous terrorist of long standing”. He initially alleged he had only visited McAuley in prison two or three times when visiting records showed it was 14 times.

This, the judge said, was “a bare-faced lie to the court”.

Judge Burns then demolished Dowdall’s main allegations against Mr Hutch.

She said Dowdall had stated that he was “nonplussed” when he learned of the Regency attack. If he had actually given Hutch a key card for a room in the Regency, she said, one would have expected extreme panic on his part at this point, yet there was none.

And she said if Hutch had made an admission to Dowdall that he had murdered a Kinahan associate at a shocking gangland event, which dominated the media and the nation, it would have made a searing impression on Dowdall’s memory, particularly because of his own involvement.

But she said he got the time and day of the alleged meeting with Hutch wrong and did not appear to have any sense of shock that the Hutch-Kinahan feud had entered a tit for tat, which may have had serious implications for himself.

In a central ruling that was fatal to the prosecution case, the judge said that in light of the serious difficulties Dowdall’s evidence presented, it was not prepared to act on his statement alone and required corroborative evidence.

That corroboration simply was not there.

The court said it was satisfied members of the Hutch family were responsible for the Regency attack and the murder of Mr Byrne.

They orchestrated “an organised and meticulously planned attack”, the judge said. But she repeated again, that was not the case against Mr Hutch. As she signalled at the beginning of her ruling on his case, he had to defend himself against allegations that he was actually in the Regency and actually shot Mr Byrne.

The tapes did not provide the required corroboration, the court found.

They did not contain any direct admission by Mr Hutch that he was actually present at the Regency and was a shooter. The judge said the opposite was the case, as Hutch had commented that the six people involved in the attack did not know who was involved.

She also commented on the disparity between Hutch’s age and the movements of the shooters.

The CCTV footage of the attack, showed a “high velocity” event with the shooters running around the place at a fast pace. One shooter jumped up and down from the reception desk “with agility”. She said there was a reasonable possibility that Mr Hutch, who was in his mid 50s at the time, did not fit the movements of the shooters.

At most, the judge said, the tape recordings gave rise to the possible inference that Mr Hutch gave the go ahead for the attack. They did not establish that he was even in the country at the time, and they also showed that he did not know a lot of the details of what had happened in the immediate aftermath.

She said there was a reasonable possibility that the Regency attack was actually planned by Gerry Hutch’s brother, Patsy, and that Mr Hutch stepped in, as head of the family, to try to sort out the aftermath, because his own life was at risk.

There was no corroboration of Dowdall’s central allegations. And as the court had determined it could not rely on Dowdall’s evidence without such corroboration, it could not be satisfied of Gerard Hutch’s guilt, and returned a not guilty verdict.

The scenes outside the Criminal Courts as Hutch silently tried to get a taxi, followed by a large crowd of journalists and camera operators, were unprecedented and chaotic, but there was little shock at the verdict itself from those who had followed the trial closely.

Legal sources had thought his conviction unlikely, given the state of the evidence against him.

The clinical evisceration by Judge Burns of Dowdall’s character and credibility showed Mr Hutch’s acquittal had been almost inevitable.