Prosecution approach in Gerard Hutch Regency attack case ‘mystifies’ lawyers

“We’re mystified” was the response of one senior counsel this week to the decision to prosecute Gerard Hutch on a single charge – murder – in connection with the attack at the Regency Hotel in Dublin.

Hutch walked free from the Special Criminal Court in April after the non-jury court found the prosecution had failed to prove beyond reasonable doubt he was part of a hit team who murdered Kinahan gang member David Byrne in the February 2016 attack on the hotel.

The prosecution could take some consolation this week when the court, in refusing to order the State to pay Hutch’s legal costs, which are likely to top €500,000, rejected the arguments by the Dubliner’s defence team that the prosecution was unwarranted.

A senior counsel with prosecutorial experience expects discussions about the Regency prosecution strategy will have involved senior gardaí, lawyers and officials at the DPP’s office “all the way to the top”.

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It is very difficult to secure convictions in gangland-related cases, and many lawyers are wondering why the DPP decided to proceed only with a murder charge when other charges might have been possible, such as possession of weapons and conspiracy, says the senior counsel.

“We’re mystified. On the face of it, it’s hard to comprehend why other charges were not brought, but a lot of experienced people were involved and they may have had access to other information of which the rest of us are unaware,” she says.

[ Gerard Hutch fails in bid to get State to pay legal costs following acquittal in Regency trial ]

The DPP, she says, is an independent officer who is not obliged to give reasons for a decision not to prosecute. There have been some limited changes in that approach and there may be a public interest in disclosing why additional charges were not brought in this case, she adds.

When Hutch’s extradition from Spain on the murder charge was sought in March 2021, the serving DPP was Claire Loftus. In November 2021 Catherine Pierse took over as DPP. Decisions concerning the Regency prosecutions would have been made under both DPPs.

Hutch’s extradition was sought only on the murder charge, suggesting a confidence in the prosecution case against him on that charge at that point, another criminal barrister says.

The fact the extradition warrant concerned a murder charge only would present difficulties for any attempt to add additional charges at a later stage, he notes.

An experienced criminal solicitor speculates there may have been “a false sense of confidence” among gardaí and others in the strength of the case against Hutch.

Hutch was extradited in September 2021, almost a year before the decision of Jonathan Dowdall – the prosecution’s key witness in the case – to testify against him, the solicitor says.

Much of the case against Hutch, before Dowdall came into the picture, appeared to rest on audio recordings of conversations between the two men some weeks after the Regency attack. Those included references to an intention to give three “yokes”, which the trial court found meant three AK-47 assault rifles used in the Regency attack, to dissident republicans.

“That would appear to lay a basis for a possession of weapons charge at least, but there may have been a view that advancing a murder charge only might result in a better outcome from the prosecution point of view,” the solicitor says. “If so, that particular gamble didn’t pay off.”

Other sources say there is no guarantee the prosecution would have succeeded on a conspiracy or possession of weapons charge against Hutch for reasons including lack of evidence of dates, times and actual possession.

“A lot of the critics have the benefit of hindsight and the actual findings of the Special Criminal Court,” one says. “It’s easy to be wise after the event. You win some, you lose some – that’s the way it works.”

The forensic cross-examination of Dowdall by Brendan Grehan SC, for Hutch, was described by court observers as a masterclass, exposing lies and frailties in Dowdall’s testimony that ultimately led to Hutch’s acquittal

During the costs hearing this week, senior counsel Seán Gillane, representing the DPP in the case, noted that, of five people charged in connection with the Regency attack, four were convicted.

The four include Jason Bonney and Paul Murphy, who were tried alongside Hutch. Bonney (52), Drumnigh Wood, Portmarnock, Dublin, was jailed for 8½, and Murphy (62), Cherry Avenue, Swords, Co Dublin, for nine years after being convicted of providing getaway vehicles.

Dowdall and his father, Patrick, both of Navan Road, Dublin, were separately jailed for four and two years respectively after they admitted facilitating the attack by booking a room in the hotel – which the court found was used by one of the attackers – the night before.

Dowdall’s admission of the facilitation charge, and the dropping of the murder charge against him, came in September 2022, just days before the Regency trial was due to open.

As a result of that bombshell development – and Dowdall becoming the main prosecution witness against Hutch – Hutch’s side had to fundamentally reappraise the defence strategy.

[ Why was Gerard Hutch tried for murder? ]

The forensic cross-examination of Dowdall by Brendan Grehan SC, for Hutch, was described by court observers as a masterclass, exposing lies and frailties in Dowdall’s testimony that ultimately led to Hutch’s acquittal.

This week, when seeking costs, Grehan argued that a prosecution for murder against Hutch was never warranted on the audio evidence, which “swung both ways” in terms of what Hutch knew or did not know but contained “no single unambiguous admission of what happened in the Regency”.

There was an argument that Dowdall coming on board, “rather than strengthening what was there already, had the opposite effect”, he said. It “seems extraordinary” that the “kind of due diligence” carried out for cross-examination of Dowdall did not appear to have been done in terms of the gathering of information about him before he was called as a witness.

It was “ironic” the prosecution, in opposing Hutch’s costs application, wanted the Special Criminal Court to consider various matters that could have been on the indictment but were not, he added.

The difficulty with Dowdall’s evidence was not his “appalling bad character” but the culmination of many issues, including his manner and approach to giving evidence

Opposing Grehan’s application, Gillane, for the DPP, argued the court should resist the defence’s contention that the court’s verdict was “some sort of vindication” of Hutch.

Gillane said he took “full responsibility” for the carriage of the prosecution case in the court.

There was an established sequence regarding Hutch’s association with firearms used in the Regency killing, counsel said. This “involved possession” and a contribution to what the court found was an orchestrated series of events to have the weapons moved.

Ruling on the costs issue, Ms Justice Tara Burns said the case Hutch had to meet – and the court had to decide – was based on Dowdall, including his assertions Hutch had made a confession of murder to him.

The court decided it could not act on Dowdall’s evidence without corroboration and determined there was no corroborative evidence of his assertions, leading to Hutch’s acquittal.

[ Michael McDowell: Very real questions for DPP following Gerard Hutch murder trial ]

The difficulty with Dowdall’s evidence was not his “appalling bad character” but the culmination of many issues, including his manner and approach to giving evidence. This could not be assessed before the trial but was rather a matter that organically developed during it.

The question of whether the court could convict without corroborative evidence was solely for the court to determine after assessing Dowdall’s evidence and, accordingly, in light of Dowdall’s assertions before the trial, the prosecution of Gerard Hutch was warranted, she said.

• February 5th, 2016: Kinahan gang member David Byrne is shot dead when a number of men, some posing as gardaí with AK-47 assault rifles, storm a boxing weigh-in at the Regency Hotel in Dublin.
• September 29th, 2021: Over five years later, Gerard Hutch is charged with his murder following his arrest and extradition from Spain.
• October 18th, 2022: Hutch murder trial opens at the Special Criminal Court in Dublin.
• December 12th, 2022: Former Sinn Fein councillor Jonathan Dowdall, against whom a charge of murdering David Bryrne was dropped after he pleaded guilty to a lesser charge of facilitation, gives evidence against Hutch as a State witness.
• December 13th, 2022: Defence barrister Brendan Grehan SC begins a cross examination of Dowdall with a series of forensic questions later credited with Hutch’s acquittal.
• January 25th, 2023: In response to prosecution suggestions Hutch had control over the AK-47 assault rifles after the shootings, Grehan tells the court his client “isn’t charged with firearms offences…the prosecution had a choice of what charges to bring and they chose what charges to bring.”
• April 17th, 2023: Hutch walks free from court following his acquittal of murder.
• June 7th, 2023: Special Criminal Court rejects his bid to have the State cover legal costs estimated at more than €500,000.

The fact the court identified areas of discord between Dowdall’s assertions and the audio recordings did not mean the prosecution was improper, she added.

She disagreed with Grehan, given the not guilty verdict, it was unfair in the costs application to consider Hutch’s conduct and associations.

The prosecution had asked the court at trial to determine Hutch had possession of three AK-47s used in the February 5th, 2016, attack on the Regency hotel by March 7th, 2016, at least as part of its case against him, she said. The court was satisfied he had possession and this was serious criminal conduct by him, accompanied by specific knowledge the guns were used in the Regency attack and had been used to murder David Byrne, she said.

A reasonable possibility existed ‘that nothing of the magnitude of the Regency attack was carried out by the Hutch family without Gerard Hutch’s say-so’

—  Ms Justice Tara Burns, ruling on costs issue

The court was satisfied the Hutch criminal organisation was responsible for the Regency attack, she said. Gerard Hutch “is recognised as a figurehead of this organisation”.

While the court did not accept the prosecution claim he was present and a shooter at the Regency, the court had found there was a “reasonable possibility” the Regency attack was organised by his brother Patsy Hutch, with Gerard stepping in attempting to sort out matters afterwards.

A reasonable possibility existed “that nothing of the magnitude of the Regency attack was carried out by the Hutch family without Gerard Hutch’s say-so”, she said.

The court’s observations may dilute some criticism but the strategy concerning the prosecution of one of the State’s most notorious crime figures in connection with a gangland attack carried out in broad daylight is likely to remain a talking point for some time.