Hutch trial highlights worrying Garda failures

The National Surveillance Unit (NSU), without question the most secretive unit within An Garda Síochána, is not used to having to explain itself in the Special Criminal Court.

This was evident early in the trial of Gerry “The Monk” Hutch when it emerged that potentially crucial data documenting the surveillance of Hutch had been deleted by gardaí before the case began.

For many observers, it beggared belief that in advance of the most high-profile organised crime trial in decades, notes concerning the tracking of a car carrying Hutch and former Sinn Féin councillor turned State’s witness Jonathan Dowdall were taken from a fireproof safe and destroyed. This was done by the then head of the NSU following sign-off from an assistant commissioner.

Brendan Grehan SC, who was defending Hutch, said he could not understand how gardaí could “in good faith” decide to destroy the material, and suggested some sort of “cleaning house” was taking place. The matter was “disturbing” and a “real problem”, he submitted.

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His concerns were not alleviated by the Garda’s explanation that the files were deleted following a policy decision that all surveillance data older than three years should be destroyed if it is not required for prosecution or appeal.

But, with Hutch’s trial approaching, how could gardaí know the tracking notes would not be required?

The Garda position was that evidence of this nature had never been required by the Special Criminal Court before. The tracker on the car was useful only in allowing NSU members to set up observation points and collect CCTV footage. Testimony from these gardaí was the real evidence, not the data from the tracker itself, they maintained.

The fact the NSU had never before been asked to produce tracking evidence highlights the approach the Special Criminal Court has traditionally taken with gardaí tackling organised crime and paramilitaries.

The court is most famous, or infamous, for its lack of a jury. What is often overlooked are the wide concessions it grants gardaí involved in sensitive intelligence work.

In trials of subversives and organised criminals, NSU members are typically granted broad privilege over their tradecraft, making the job of defence barristers all the more difficult. In some cases, gardaí are not even required to admit they deployed trackers or listening devices during their investigations.

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The deletion of the Hutch tracking data had the potential to upend the entire trial. But then came a another surprising twist. A few days later, prosecuting counsel Sean Gillane announced to the court: “What is lost is now found.”

After an extensive search, Garda cyber specialists had located the tracking data which they thought they had deleted. It was found on a securely stored desktop computer that had been earmarked for destruction, he said.

The tracking data was made available to the defence and it confirmed what they had suspected: Dowdall’s jeep had been in Northern Ireland for the majority of the time it was being tracked. This meant most of the recordings captured by the bugging device which had also been planted in the vehicle were potentially inadmissible.

As conceded by multiple garda witnesses, the NSU cannot undertake surveillance in other jurisdictions. This created the very real chance of a key plank of the prosecution case – 10 hours of recordings of Hutch and Dowdall – being struck out.

The prosecution gamely argued that, under law, “it does not matter a damn” where the listening device was when it recorded the two men. It only mattered that the bug was installed and recovered in the Republic.

The three judges of the court disagreed. It is clear that the Criminal Justice (Surveillance) Act 2009 applies only to recordings made in this jurisdiction, they ruled.

But in yet another twist, the judges decided the evidence could be admitted anyway, despite being obtained illegally. Gardaí had acted in good faith when they installed the bug and had no way of knowing the car would travel into the North at the time, they ruled.

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Critics of the Special Criminal Court will no doubt point to this as evidence of the court’s deference towards gardaí. After all, gardaí had good reason to suspect the bug might enter Northern Ireland. They knew Dowdall has extensive contacts in the North and had already driven Hutch up there the previous month.

Now that Hutch has been acquitted, people will no doubt question why the NSU deleted the surveillance data. The most compelling explanation is hubris. They simply didn’t think their intelligence-gathering methods would ever be questioned by the courts.

Grehan suggested this may be a “a throwback” to the many years when gardaí were able to deploy surveillance without any oversight whatsoever.

Some critics are likely to accuse the Garda of deleting the data to cover up the fact that the majority of the recordings were made outside the State. However, this was not an allegation pushed by the defence. Grehan accused the Garda only of an “unintentional lack of candour” when applying for the surveillance warrant.

Whatever the reason, the episode nearly scuppered the trial before it truly got started. It also demonstrated the extensive, and potentially excessive, protections the Special Criminal Court grants gardaí.