Conviction in Northern Bank case overturned

THE COURT of Criminal Appeal has quashed the conviction of a man found guilty of offences allegedly connected with the 2004 Northern Bank robbery.

The appeal court ordered a retrial in the case of Timothy “Ted” Cunningham on nine charges of money laundering. However, there will be no retrial on a 10th count involving the largest sum of money.

The convictions were quashed because legislation under which a key search was granted in 2005 has since been deemed unconstitutional.

Mr Cunningham was taken from the court in Dublin yesterday back to Limerick Prison. However, he had been granted bail by the court and on the completion of some formalities in Limerick Prison was expected to be released last night.

The ruling could have implications for others currently charged with offences, or appealing convictions, under section 30 of the Offences Against the State Act and where evidence was gathered by gardaí using a section 29 warrant.

Minister for Justice Alan Shatter has already moved to address the issue. His office said in a statement last night: “The Criminal Justice (Search Powers) Bill is being drafted as a priority and will be published shortly. The Minister hopes to have it enacted before the summer recess.”

Mr Cunningham, a financier, was jailed for 10 years by Judge Cornelius Murphy in April 2009 after a Cork Circuit Criminal Court jury found him guilty of laundering more than £3 million from the robbery of the Northern Bank in Belfast in December 2004.

Mr Cunningham, (63), Farran, Co Cork, had pleaded not guilty.

He appealed his conviction on grounds including that evidence gathered and used against him following a search of his home by the Garda was obtained on foot of a defective warrant.

The warrant was deemed invalid yesterday in light of the Supreme Court decision in another case (the Damache case) that section 29 (1) of the Offences Against the State Act was repugnant to the Constitution.

Ali Charaf Damache successfully challenged the validity of a warrant issued by a senior garda under section 29 to search his home. He challenged the warrant on the basis that a garda involved in the case was not independent of the investigation and therefore should not have been granting search warrants relating to it.

Mr Cunningham’s appeal was the first to be brought on the basis of the Damache decision and the three-judge appeal court, with Mr Justice Adrian Hardiman presiding and sitting with Mr Justice Michael Moriarty and Mr Justice Gerard Hogan, yesterday ruled that Mr Cunningham was entitled to rely on the Damache ruling.

Mr Justice Hardiman said the appeal court was satisfied to quash Mr Cunningham’s convictions and order a retrial on nine of the 10 counts of alleged money laundering.

The tenth count, which referred to a sum of £2.4 million allegedly found in Mr Cunningham’s house by gardaí during the search, will not proceed to a retrial.

In opposing the appeal, the Director of Public Prosecutions had argued that Mr Cunningham was not entitled to “piggyback” on the Damache decision on grounds including his conviction before that decision. But the appeal court rejected all the DPP’s arguments and said Mr Cunningham was entitled to claim the benefit of the Damache decision.

Mr Justice Hardiman also said the appeal court did not accept the DPP’s argument that the criminal case against Mr Cunningham was finally concluded with the jury because his appeal was still pending at the time of the Damache ruling.