It is always easy to be wise after the event and for armchair generals in the media and the law to criticise those involved in a major prosecution that results in an acquittal. That said, there are very real questions to be answered in relation to the outcome of the Gerard Hutch murder trial in the Special Criminal Court.
Not all those questions will be answered in public. The DPP is an independent officer of state carrying out the constitutional function of prosecuting alleged criminal offences in the name of the Irish people. The DPP is not under supervision or direction of the Government or the Attorney General and is not answerable to them or in the Oireachtas. The DPP’s decisions are arrived at independently.
Under the Prosecution of Offences Act 1974, the only formal channel of communication between the DPP and the executive arm of state is set out at section 2(6), which requires the Attorney General and the DPP “to consult together from time to time in relation to matters pertaining to the functions of the Director”.
However, there will not be any detailed public accountability in relation to the conduct of the Hutch prosecution. That does not end serious debate about its outcome.
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Likewise, the judiciary in the Special Criminal Court are entirely independent and appear to have dealt with the Hutch case correctly and impeccably. As the case went on, many criminal lawyers came to believe that the evidence adduced against Hutch was insufficient in reliability and extent to ground a conviction for direct physical involvement in the Regency Hotel murder on the criminal standard of proof – proof beyond reasonable doubt.
Many lay people will be scratching their heads as to how underlings in the Hutch organisation end up convicted for secondary involvement in the murder but no major figures on the Hutch side of the Kinahan/Hutch sustained murder campaign end up convicted. Especially so given the finding against a co-accused that he was beyond any reasonable doubt a member of the Hutch criminal organisation and a finding that the firearms used were Hutch’s.
With the benefit of hindsight and with the admittedly imperfect understanding of observation from a legal distance, it suggests that a less ambitious charge against Hutch of involvement in a criminal conspiracy to murder at the Regency Hotel might have succeeded.
There used to be a convention that criminal conspiracy charges were not brought as a fail-safe alternative in trials where the accused is tried as a principal for the substantive offence.
Whether that convention still exists or not, it does seem to many with experience of the criminal process that a conspiracy charge against Hutch in respect of the Regency Hotel murder would probably have resulted in a conviction and a very heavy sentence.
The problem posed by Hutch’s acquittal for murder is that it very probably extinguishes any chance of a related conspiracy charge being brought or succeeding. The doctrine of double jeopardy would not permit a second outing over the same factual terrain in the hope of securing a conviction for a lesser offence.
Moreover, there is the area of involvement in organised crime. Back in 2006, I introduced and pushed through the Oireachtas the Criminal Justice Act 2006. Part 7 of that Act created offences of involvement and conspiracy involving organised crime both here and overseas. Those provisions were strengthened in 2009. The Hutch gang described in the Court’s verdict does seem to fall squarely within the definition of a criminal organisation.
To those who challenge the continuing need for the Special Criminal Court, let us be very clear. To preserve jury trial as the vital constitutional norm in the Irish system of trial for indictable crime, provision must be made to defend us from those who are both capable of and likely to use intimidation of jurors and witnesses to escape justice.
The catalogue of at least 16 savage killings in the Hutch/Kinahan murder campaigns demonstrates the power and willingness of those involved in organised crime to do anything to prevent their conviction and imprisonment.
Asking ordinary citizens as volunteer jurors to shoulder the burden of ongoing threats to them and their families from paramilitaries and organised crime is simply asking too much.
There are questions for Sinn Féin. The main prosecution witness Jonathan Dowdall, an associate of Hutch who turned state’s evidence, was a Sinn Féin councillor up to 2014. Who vetted him? Who proposed his adoption as a candidate? Who approved his selection?
The evidence – particularly the taped recorded conversations between Hutch and Dowdall – shows that senior people in Sinn Féin must have done so. They also suspected his involvement in a gun attack on a Dublin home. What connection had he with the IRA (he claimed to be a member when carrying out a savage torture for which he was later convicted)?
Who in that organisation was important enough to conceal all that from the party’s public leadership – and from the Irish public?