A 34-year-old man who successfully appealed his conviction for conspiring to steal the getaway car used in a credit union robbery in which a garda was shot dead will now face a fresh trial.
“We are of the opinion that the balance of justice lies with permitting a retrial,” said Ms Justice Tara Burns at the Court of Appeal on Thursday, rejecting an argument by James Flynn (34) that it would be unfair to send him for a retrial given he has been in custody since July 2021.
Mr Flynn, with an address in Ravensglen, Newry, Co Down, was originally charged with conspiracy to steal cars at various locations in the northeast. He was further charged with participation in the robbery of the Lordship Credit Union in Bellurgan, Co Louth, on January 25th, 2013, in which Aaron Brady shot and killed Det Gda Adrian Donohoe.
The three-judge, non-jury Special Criminal Court acquitted Mr Flynn of the robbery charge but amended the conspiracy indictment to find him guilty of conspiring to steal the Volkswagen Passat used as the getaway car from a property in Clogherhead, Co Louth, in January 2013.
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The three-judge Court of Appeal subsequently found that the decision by the Special Criminal Court to amend the indictment after Mr Flynn’s three-month long trial had finished, and without consulting either the prosecution or defence legal teams, was a breach of Mr Flynn’s right to constitutional natural justice.
In those circumstances, the court quashed his conviction. The Director of Public Prosecutions then sought for the court to order a retrial on the original count on the indictment, while the appellant said that if there were to be a retrial, the appropriate offence to be retried was the amended offence.
Lawyers for Mr Flynn argued that it would be unfair to send him for a retrial given he has been in custody since July 2021, when the Irish authorities brought extradition proceedings against him in the UK.
It was also submitted that the court had no jurisdiction to order a retrial on the original conspiracy charge because Mr Flynn had already been acquitted of that charge.
In delivering the Court of Appeal’s judgment, Ms Justice Burns said that the court had already found that the Special Criminal Court’s amendment of the charge against Mr Flynn was unlawfully made.
She noted that the appellant had been sentenced to eight years in prison, backdated to reflect his time in custody. She said that as he had spent almost four years in custody, he had not fully served the sentence imposed on him. The court found that the period of time already served was not a reason for not ordering a retrial.
In relation to a submission by the appellant that the memory of witnesses will have faded since the alleged offence over 12 years ago, Ms Justice Burns said that 12 years was not an inordinate amount of time. She said the trial court can deal with issues arising from a lack of detail.
Mr Justice Kerida Naidoo remanded Mr Flynn in custody for a bail hearing on April 28.
