Hutch verdict raises questions as to why prosecution proceeded as it did

Gerard Hutch was so unprepared for his acquittal on a charge of murdering Kinahan gang member David Byrne at the Regency hotel he had no money on him and had to get lawyers to pay for the taxi that carried him away from the Criminal Courts of Justice.

Hutch will be anxious not to return there and may be encouraged by the view of experienced criminal lawyers it will be “very difficult” to bring any further charges against him in connection with the Regency attack.

The Special Criminal Court’s verdict of not guilty was not unexpected in legal circles given a perceived dearth of evidence to support the murder charge against Hutch and a very effective cross-examination of the main prosecution witness Jonathan Dowdall.

In the wake of the court’s clear and detailed judgment, there has been some criticism of the approach adopted by the DPP in the prosecution of Hutch.

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Charges such as involvement in an organised crime group, under section 72 of the Criminal Justice Amendment Act 2009, and/or possession of firearms, under the Firearms and Offensive Weapons legislation, could have been added to the indictment against Hutch and it is not clear why they were not, according to legal sources.

Instead, it was decided to proceed only with the murder charge and to make a case alleging Gerard Hutch was one of the two armed attackers who shot David Byrne, resulting in catastrophic injuries from which he immediately died.

This contrasted with the approach adopted concerning the indictment of Patrick Hutch jnr, a son of Gerard Hutch’s older brother Patsy, when he was charged with offences related to the Regency attack.

Patrick Hutch jnr, now aged 30 and from Champions Avenue, Dublin, was charged with the murder of David Byrne and with possession of three AK-47 assault rifles which the prosecution alleged were used in the attack on the Regency involving six raiders. The prosecution alleged Patrick Hutch jnr, dressed as a woman, entered the hotel carrying a gun.

Patrick Hutch jnr denied the charges which were dropped in 2019 after the prosecution entered a nolle prosequi, saying it could not proceed with the case due to the death of the lead investigating officer, Detective Superintendent Colm Fox, who was found dead at Ballymun Garda station in February 2018. Foul play was not suspected and his death was treated as a personal tragedy.

This week, in the trial of Gerard Hutch, the Special Criminal Court found the three AK-47 rifles were used in the Regency attack and two of them were used in the shooting of David Byrne.

The court found that Gerard Hutch had control of them “at least” on March 7th, when a surveillance recording of a conversation between Dowdall and Gerard Hutch involved some discussion of the weapons.

The court found members of the Hutch family, acting as an organised crime group, were responsible for the Regency attack and the murder of Mr Byrne.

However, it found the prosecution had not proven the actual case it had made against Gerard Hutch – that he was actually present at the Regency and actually shot David Byrne.

On several grounds, including Dowdall’s significant interest in testifying against Gerard Hutch, his serious criminal conviction for “waterboarding” a man, and inconsistencies in his evidence against Gerard Hutch, the judges said they could not accept Dowdall’s evidence without some independent corroboration. The corroboration provided, including the surveillance recording, was not sufficient to sustain a murder conviction, they concluded.

The court noted, inter alia, the evidence had not established Gerard Hutch was in Ireland at the time of the Regency shooting. There was, it said, a “reasonable” possibility the attack was planned by Patsy Hutch and that Gerard Hutch “stepped in, as head of the family”, to attempt to sort out the aftermath of the Regency particularly as his own life was at risk.

The judges, having viewed CCTV footage of events at the Regency, noted the shooters were running around at a fast pace, one was described as slight and quite young and the second jumped up and down from the reception desk with some agility. A reasonable possibility arose that Gerard Hutch, a man in his mid 50s, did not fit the movements of the shooters, they said.

The court’s judgment has raised some questions as to why the prosecution case proceeded as it did.

Not guilty: why did the State's case against Gerard Hutch fail?

Listen | 17:40

The State has failed in its effort to convict Gerard Hutch of the murder of David Byrne at the Regency Hotel. The conclusion of the dramatic case with a verdict of not guilty leaves a lot of unanswered questions for the Director of Public Prosecutions about why its case failed, and for the GardaI about how it mismanaged evidence at points in its investigation. Conor Gallagher reports.Presented by Bernice Harrison.

The fact Gerard Hutch was extradited from Spain only on the murder charge may be one explanation, one solicitor suggested. “There may have been a view the prosecution’s hands were tied to the murder charge but there is a way around that, it is possible to seek to prosecute extradited persons on additional charges to those specified in warrants,” he said.

Several speculated the prosecution may not have expected Dowdall’s testimony to prove as flawed as the court ultimately concluded it was. “You never know how someone is going to work out when they take the stand, it can be a gamble.”

There was general agreement that relying on the evidence of criminals who are accomplices or protected witnesses is fraught with danger and uncertainty and they pointed to a growing body of case law warning of the potential dangers concerning such evidence. The Special Criminal Court had referenced that law in concluding that Dowdall’s evidence required independent corroboration if it was to be accepted.

The view now is that, in light of the principles against double jeopardy and general fairness, it is unlikely any fresh charges will be preferred against Gerard Hutch related to the Regency attack. “It’s not possible to definitively say that new charges will not be brought but I would be stunned if that happened. In my view, that ship has sailed,” one solicitor observed.

One pointed out that the SCC had briefly mentioned the option of a common design prosecution but had also pointed out the difficulties in successfully pursuing that course.

Gerard Hutch remains a “person of interest” in the continuing investigation into suspected links between members of An Garda Síochána and the Hutch gang.