Gerry Hutch 'will get unequal treatment' if stopped from trying to dismiss murder charge, court told

Mr Hutch (59), who is in custody, was present in court for Friday's hearing, where he sported a full mane of grey hair and a thick grey beard. He wore a white open-necked shirt and beige chinos.

The three-judge court heard submissions from Mr Grehan, for Mr Hutch, and Michael O'Higgins SC, for co-accused and former Sinn Féin Councillor Jonathan Dowdall regarding Section 4E of the Criminal Procedure Act of 1967. Fiona Murphy SC made submissions for the prosecution.

Mr Hutch's four co-accused supported the Section 4E application and were present in court. Section 4E states that a court can dismiss the charges against an accused person before trial where there is insufficient evidence.

On September 29, 2021, Mr Hutch appeared before an out-of-hours sitting of the non-jury Special Criminal Court charged with the murder of Kinahan gang member David Byrne at the Regency Hotel on the Swords Road, Whitehall, Dublin 9, on February 5, 2016.

On Friday, Mr Grehan told the court that Mr Hutch's solicitors had served a notice of motion pursuant to Section 4E of the Criminal Procedure Act 1967 asking the court to dismiss the murder charge because there was not sufficient evidence to try him.

Right to dismiss charge

However, the barrister said that an issue arose on a literal reading of Section 4E which would appear to preclude Mr Hutch from making such an application because the section states that anytime after an accused is "sent forward for trial from the District Court" he may apply to dismiss the charge against him.

Mr Grehan added: "Mr Hutch was not returned for trial before the District Court, he was charged directly before this court".

The barrister said a direction was given by the DPP in Mr Hutch's case whereby a warrant was sought for his arrest, which was granted by the Special Criminal Court on which the accused was brought before the three-judge court.

Equally, Mr Grehan said, a number of possibilities could have arisen including that Mr Hutch could have been charged before the District Court and sent forward for trial to the Special Criminal Court. The accused could also have been charged before the District Court and returned for trial to the Central Criminal Court at which point a direction could have been made ex-parte to have the matter transferred to the Special Criminal Court, he continued. 

In either of these situations the accused can clearly bring a Section 4E application.

The lawyer said Mr Hutch would receive unequal treatment before the law and effectively be discriminated against if he was inhibited from bringing an application before the Special Criminal Court to dismiss the charge against him. This would lead to "plain inequality of treatment" under the law between two categories of accused persons without any justification, he said.

Mr Grehan stated that there should be no reason in law that any distinction should be drawn between his client and those originally charged in the District Court.

"There is nothing in the legislation as to why Mr Hutch [or people in his position] should be treated differently than others nor is there any suggestion that the DPP in directing the accused to be brought before the Special Criminal Court was to prevent him having access to a Section 4E application," he said.

Mr Grehan submitted that a literal interpretation of Section 4E could not be correct and asked the non-jury court to look at the true meaning of the section by adopting the purposive approach as it afforded an accused person the opportunity to have the charges against them dismissed.

"Unless there is a justifiable distinction to be drawn, a person should not be treated differently simply because of where they are originally charged and to do so would result in not only unequal treatment but discriminatory treatment without any basis for it," he stated.

The only right Mr Hutch asserts was the right to make the Section 4E application like anyone else and an interpretation which disentitles him from making that application would be an absurd interpretation, he argued.

In summary, Mr Grehan said the plain intention of the Oireachtas in enacting Section 4E was not to discriminate and "unjustly treat" those charged in the Special Criminal Court.

If the Special Criminal Court adopted a literal interpretation of Section 4E then it would give the DPP "carte blanche" to deprive any accused of "this right simply by the expedient of having" them charged before the three-judge court, he concluded.

Senior counsel Michael O'Higgins, defending Jonathan Dowdall, said that those who drafted the legislation "inadvertently took their eye off the ball" and created circumstances nobody intended to.

Mr O'Higgins referenced the case of convicted ISIS member Lisa Smith, who was able to bring a failed application to dismiss charges before the non-jury court because she was fortuitously charged in the District Court.

"One group is fish and another fowl purely on how the case is administered and this is as arbitrary a premise as one could construe," submitted Mr O'Higgins.

In reply, Fiona Murphy SC, for the State, said the non-jury court did not have jurisdiction to hear the issue on a literal reading of Section 4E and there was no reason for the court to go behind the meaning of the section.

Ms Justice Tara Burns, presiding, sitting with Judge Sarah Berkeley and Judge Marie Keane, will rule on the application on July 15.