THE SUCCESS of Ted Cunningham in appealing his 10 convictions for laundering the suspected proceeds of the 2004 Northern Bank raid is rooted in the outcome of an unrelated case in March of this year.
Ali Charaf Damache was arrested over an alleged conspiracy to murder Lars Vilks, a Swedish cartoonist who had depicted the prophet Muhammad with the body of a dog.
On March 10th, 2010, the superintendent heading the investigation granted a search warrant for Mr Damache’s house. The warrant was issued under section 29 of the Offences Against the State Act. Mr Damache was arrested at his Irish home and subsequently charged with sending a threatening message by telephone.
The Supreme Court found that the section of the Act permitting the issuing of a search warrant by the superintendent investigating the matter was unconstitutional. It found the person issuing the warrant was not independent of the investigation.
Normally a search warrant is issued by a judge, but in cases of urgency may be issued by a senior Garda officer.
This ruling in March rendered unconstitutional section 29 (1) of Offences Against the State Act.
It was under this same provision that a Garda superintendent leading the investigation into Ted Cunningham in 2005 issued a warrant to gardaí to search his house.
While Mr Cunningham’s conviction occurred in March 2009, an appeal was still pending at the time of the Damache ruling – a crucial factor.
Had the appeal already gone ahead, the option of invoking the Damache ruling would not have been open to Mr Cunningham because his case would have been closed.
But the fact the appeal was still pending meant Mr Cunningham could go to the Court of Criminal Appeal and argue that the search warrant used against him had been issued on legislation now deemed to be unconstitutional.
The Court of Criminal Appeal has agreed and has set aside his 10 convictions. However, the process for him is far from over.
The contentious search warrant only applied to one of those 10 charges, charge 10. This related to the discovery of £2.4 million at his home in Farran, Co Cork, in February 2005.
Because charge 10 exclusively rested on the search of his house and the money it yielded, the appeal court has decided he cannot be retried on that charge.
However, a retrial on charges one to nine has been ordered. These charges relate to smaller sums of money found at various locations. The State has claimed that Cunningham effectively controlled this money but had given it to other people.
His trial three years ago bundled all 10 charges together. The same jury heard evidence relating to all 10 charges and then convicted him on all counts. However, the evidence relating to charge 10 – which involved the biggest sum of money – was very damning.
The appeal court has now said this evidence would have prejudiced the jury against Mr Cunningham in relation to the other nine charges, meaning they needed to be quashed and a retrial ordered.
That retrial can go ahead because there are no difficulties around the search warrants used to ground those nine charges.
The Morris tribunal in its 2008 report into Garda corruption in Donegal flagged its concerns around section 29 warrants – provided for in 1976 – saying it should be a judge and not a senior Garda that issued search warrants.
Mr Justice Morris said that in one of the cases he had examined a Garda sergeant had clearly manipulated his superintendent into granting him a search warrant for which there was no honest or reasonable basis.
“There is a danger that the power to issue a section 29 warrant thereby becomes a mere formality in which the investigating sergeant might as well be empowered to issue a search warrant himself.”
