Sunday 22 October 2017

Appeal court quashes convictions of three men in €2.28m tiger kidnapping

Sarah Stack

Sarah Stack

THREE more prisoners have had their convictions quashed over a controversial search warrant.

Dublin's Court of Criminal Appeal (CCA) ordered a retrial for Jason Kavanagh, Mark Farrelly and Christopher Corcoran, who were convicted of tiger kidnapping the family of a cash-in-transit driver in March 2005 and stealing €2.28 million from him and his employer, Securicor.

A number of trials have collapsed and several convictions overturned since the Supreme Court ruled earlier this year that a certain warrant previously used by gardai during investigations was unconstitutional.

The section 29 warrant was introduced in 1976 to allow senior gardai, not below the rank of superintendent, to authorise an emergency search without recourse to an independent judge.

But it was legally challenged on grounds it should not have been issued by a Garda superintendent involved in the case but by an independent authority, such as a judge or a peace commissioner.

The CCA found the convictions against Kavanagh, Farrelly and Corcoran cannot stand as there were no essential safeguards in the section 29 warrant.

After a landmark 66-day trial in 2009, the three Dubliners were found guilty of falsely imprisoning Paul Richardson and his family on March 13 and 14 in 2005 and stealing 2.28m euro .

Farrelly, 39 of Moatview Court, Priorswood, Coolock, and Kavanagh, 35, of Parslickstown Court, Ladyswell, Mulhuddart, were jailed for 25 years each.

Corcoran, 63, of Bayside Boulevard North, was jailed for 12 years.

No cash was recovered.

But the three-judge CCA overturned the jury's verdict as their homes were searched under Section 29 of the Offences Against the State Act and was therefore not valid.

Cork-based financier Ted Cunningham, the first man convicted in connection with the Northern Bank robbery, was released from Limerick Prison earlier this month when the CCA quashed his conviction because of the warrant. A retrial was ordered.

The section 29 warrant was initially challenged in the Supreme Court by Ali Charaf Damache.

The 45-year-old Algerian, of John Colwyn House, High Street, Waterford, was arrested following an international investigation into an alleged conspiracy to murder Swedish cartoonist Lars Vilks for his drawing of the prophet Muhammad.

The Chief Justice, Ms Susan Denham, sitting with Mr Justice Michael Moriarty and Mr Justice Gerard Hogan said that as with the Damache and Cunningham cases, there were no essential safeguards present for the co-accused in the section 29 warrants.

"Absent such safeguards, the section failed to protect and vindicate the essence of that core constitutional guarantee of the inviolability of the dwelling," they ruled.

"The court considers that the applicants are entitled to invoke the principles articulated in Damache.

"It follows, therefore, that the convictions cannot stand."

The Department of Justice has said it is working on new legislation on search powers that will replace section 29 of the Offences Against the State Act, 1939, by the summer recess.

However, Justice Minister Alan Shatter cannot deal with existing cases being appealed through the courts.

"The scope of the Bill is confined to future Garda investigations as there is no retrospective legislative action open to the minister to deal with existing cases where the use of section 29 may be at issue," a department spokesperson added.

"It is not possible for legislation to make something constitutional which the Supreme Court has declared to be unconstitutional."

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