Appeal dismissed; conspiracy to pervert justice upheld due to improper pressure on witness and unlawful means.

THE COURT OF APPEAL APPROVED NO REDACTION

Record No.: 19/25 Neutral Citation Number [2025] IECA 265

McCarthy J. O’Moore J. MacGrath J.

BETWEEN/ THE PEOPLE (AT THE SUIT THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT -AND-

DEAN BYRNE APPELLANT

JUDGMENT of Mr. Justice Brian O’Moore delivered on the 3rd day of December 2025

1. The appellant, Mr. Byrne, was born on the 20th of October 1992. He was convicted before the Special Criminal Court on the 14th of June 2024, on count 3 on the indictment namely that: ‘between the 8th of April 2020 and the 22nd June 2020… in Mountjoy Prison, Dublin 7, [he] conspired with Aaron Brady to persuade Daniel Cahill, a prosecution witness in the trial of DPP v Aaron Brady, not to give evidence a course of conduct which had a tendency to and which was intended to pervert the course of public justice’. These were the particulars of an offence, more generally described as: ‘Conspiracy to do an act which has a tendency to and is intended to pervert the course of public justice contrary to Common Law’.

2. The events leading to Mr. Byrne’s conviction arise from the trial of Mr. Aaron Brady. Mr. Brady was tried for the capital murder of Detective Garda Adrian Donohoe on the 25th of January 2013 while the latter was conducting a cash escort from four Credit Unions along the Cooley peninsula. On the 13th of April 2013, three months after the capital murder, Mr. Aaron Brady left Ireland for New York. He was arrested in the USA on the 17 th of May 2017, and returned to Ireland in custody. He has been in custody in this jurisdiction since then.

3. An important aspect of the evidence against Mr. Brady was that, while in New York he made admissions to a number of people to the effect that he had been involved in killing a policeman in Ireland. One such witness, who the prosecution intended to call in evidence in the trial of Mr. Brady, was Mr. Daniel Cahill. The prosecution alleges that Mr. Byrne contacted an individual (Mr. Christopher Burgess), who he knew was acquainted with Mr. Cahill, and asked him to prevail on Mr. Cahill not to give evidence. Mr. Burgess lived with Mr. Cahill’s father in New York at that time.

4. Following his conviction, Mr. Byrne was sentenced to two years imprisonment to commence on the expiration of the sentence imposed on him in respect of his conviction on Bill No. TYDP0045/2014. He appealed his conviction on the basis that the trial judge ought to have acceded to his application for a directed verdict as: “the indictment and evidence did not disclose an offence following a submission that there was no offence of a conspiracy to persuade, and no unlawful means were used to effect conspiracy”.

5. Such an application for a direction was made at the conclusion of the prosecution case. On such an application, the trial judge must take the prosecution at its height in accordance with principles outlined in R v. Galbraith [1981] W.L.R. 1039, as approved in this jurisdiction in People (DPP) v. M. (Unreported, Court of Criminal Appeal, 15th February 2001).

Background:

6. The prosecution in this case involved an alleged conspiracy involving Mr. Byrne and Mr. Brady. The allegations against Mr. Brady also related to another witness, a Mr. Ronan Flynn. This appeal against conviction is brought solely by Mr. Byrne.

7. The facts and background have been set out in the submissions of the DPP, with which the appellant does not take issue and which we will now summarise.

8. While in New York, in the aftermath of the murder of Detective Garda Donohoe, one of the addresses at which Mr. Aaron Brady resided was also occupied by Mr. Flynn, and a boyfriend of another witness in the trial against him, Molly Staunton. Ms. Staunton met Mr. Aaron Brady on many occasions. Also, while in New York, Mr. Aaron Brady met the second key witness mentioned above, Daniel Cahill. Mr. Cahill was a barman in the Coachman's bar in New York.

9. On the 29th of August 2017, Ms. Staunton gave a witness statement (recorded on DVD) to Gardaí in New York. During the course of making her statement, Ms. Staunton informed Gardaí that she was present while Mr. Aaron Brady stated that he had “shot a cop” in Ireland. On the 25th of October 2017, Mr. Flynn gave a witness statement (also recorded on DVD) to Gardaí in the Bronx. Mr. Flynn stated during his interview that on several occasions at the apartment at 28th, 1st Street, Yonkers in the Bronx, New York, Mr. Aaron Brady admitted to him and others present that he had shot Detective Garda Donohoe.

10. Mr. Ronan Flynn’s statement and proposed evidence (recorded on DVD) was highly significant. He stated:

‘I recall a number of occasions when Aaron Brady was drunk in the house. His thing was to listen to the Wolf Tones music and get drunk. Aaron would get all angry and emotional and frustrated with himself. There was a conversation about different things, drunk talk. Aaron said that he shot the guard. He said he did it that he shot him.

Sometimes the conversation would be about this and he used to say fuck it yea I did it.

Aaron Brady would be saying all emotional like sure I shot the guard sure so what.’ ‘Aaron spoke about him shooting the garda every time he got drunk. Something would just click in him. He would get brave or whatever and say sure fuck it I shot the garda.’ ‘He kept saying it. It wasn't a once off thing. It kept coming up.’ ‘When Aaron Brady was sober he wouldn't talk about shooting the guard. But when he was drunk he let his feelings out. He kept saying that everyone hated him. He is an awful emotional fella. He said, he ruined his life and his family's life because of what he did.

He used to always say that; "I ruined everything; I ruined everything."’

11. Mr. Flynn’s account was very similar to that of Ms. Staunton, who ultimately gave evidence at trial. Mr. Flynn also confirmed that Ms. Staunton was in their apartment regularly. Mr. Flynn reported that when Mr. Aaron Brady made the admissions, they were made in the same apartment.

12. As such, the prosecution’s case was that Mr. Flynn’s evidence was not only highly probative in and of itself, but would also have corroborated the evidence of Ms. Staunton.

13. The prosecution maintained that Mr. Flynn’s evidence remained important to the case against the appellant in respect of Mr. Cahill since the appellant confirmed in interview that he was aware of the video that circulated in respect of Mr. Flynn. This would necessarily inform an objective assessment of whether he was acting bona fide in his efforts in respect of Mr. Cahill. The appellant’s attempts to influence Mr. Cahill continued after the circulation of the video of Mr. Flynn.

14. On the 25th and 26th July 2019, Gardaí took a statement from Mr. Cahill in New York (recorded on DVD). Mr. Cahill informed Gardaí that Mr. Aaron Brady stated on three separate occasions that he had shot a Garda in Ireland.

15. Prior to the trial of Mr. Aaron Brady, the DPP disclosed material which included the videotape of the taking of Mr. Flynn’s statement. Thereafter, Mr. Aaron Brady’s solicitor provided the disclosure on two external hard drives to Mr. Aaron Brady, who was in Mountjoy prison in advance of, and for the duration of the trial.

16. On the 29th of July 2019, Mr. Justice White directed that Mr. Aaron Brady be given access to a laptop in custody in order to prepare for his case. Thereafter, the Irish Prison Service purchased a laptop for Mr. Aaron Brady. Mr. Byrne was also a prisoner in Mountjoy in the same block as Mr. Aaron Brady, having been there for a number of years.

17. The evidence of the conspiracy to pervert the course of justice in respect of Mr. Cahill stemmed primarily from a phone seized from the cell of the appellant after the offences in relation to Mr. Flynn had been committed and were being investigated. The phone was found containing photographs of Mr. Cahill’s statements taken from Mr. Aaron Brady’s book of evidence along with extensive conversations between the appellant and others seeking to ensure that Mr. Cahill would not give evidence against Mr. Aaron Brady.

18. The photographs of Mr. Cahill’s statement on the appellant’s phone were given to him by Mr. Aaron Brady. The device used to furnish them was never recovered.

19. The appellant then sent these photographs of Mr. Cahill’s statements to at least two people (Derek “Dicko” Dixon & Christopher Burgess). Derek Dixon was an acquaintance of Mr. Cahill. Both were originally from Coolock. Christopher Burgess is Mr. Cahill’s first cousin. At the time of the trial, he lived with Mr. Cahill’s father. He was also an acquaintance of the appellant.

20. The respondent maintains that while the submissions on behalf of the appellant lodged in this case suggest that Mr. Burgess was in New York at the time of the appellant’s contact with him, the respondent maintains that it is a stranger to this suggestion, and it did not feature in evidence in the trial. The prosecution’s submission is that Mr. Burgess referred in communications with the appellant to the fact that the Mr. Cahill was “over there,” referring to the USA, implying that he (Mr. Burgess) was not “over there.”

21. On the 8th of April 2020, the appellant made contact with Mr. Burgess on Facebook. They thereafter engaged in an extensive exchange of messages which, it is stated focussed on attempts by the appellant to ensure that Mr. Cahill did not give evidence. Those messages included an indication from Mr. Burgess that he had spoken to Mr. Cahill and his father, and that Mr. Cahill had claimed that he did not say anything to Homeland Security. On foot of this, Mr. Burgess requested copies of Mr. Cahill’s statement, which were provided to him by Mr. Brady by way of photographs. Mr Burgess stated that he wanted to see the statement for himself.

22. The appellant then sent Mr. Burgess three photos of Mr. Cahill’s statements from Mr. Aaron Brady’s book of evidence. This took place within approximately 20 minutes of the request from Mr. Burgess to see the statements. Moreover, he was very quickly able to, on request from Mr. Burgess, obtain a further photo of the statement that was more legible. The content of the appellant’s conversations with Mr. Burgess also indicated that he (the appellant) was privy to Mr. Aaron Brady’s defence strategy at trial (he referred to matters in the conversations that only became public knowledge months later in the trial). The appellant further communicated to Mr. Burgess that Mr. Aaron Brady’s father, Tony Brady and Mr. Cahill’s father might meet up and “sort it out.”

23. The appellant contacted Mr. Burgess repeatedly thereafter to ascertain if he had made efforts to contact Mr. Cahill. He was able to appraise Mr. Burgess of when Mr. Cahill would be giving evidence. Mr. Burgess was able to confirm he was talking to Mr. Cahill about giving evidence.

24. The respondent pointed out in the submissions that, at the same time as the appellant was engaged with Mr. Burgess attempting to persuade Mr. Cahill not to give evidence, events were taking place that were relevant to the ultimately successful attempt to pervert the course of justice in respect of Mr. Flynn.

25. Thus, on the 15th of April 2020, (the same day as some of the conversations between the appellant and Mr. Burgess) Mr. Aaron Brady and Mr. Tony Brady (Aaron Brady’s Father) had a prison phone call wherein Mr. Tony Brady asked Mr. Aaron Brady: “Did you get any work done on the computer”; and Mr. Aaron Brady replied: “Yeah sure it’s in my cell there this last two days”.

26. At some time between the 16th and 17th of April 2020, Mr. Aaron Brady, in his cell in Mountjoy, used a mobile recording device to record the screen of his laptop while the videotaped interview of Mr. Flynn was playing on his laptop.

27. The date and location of the filming of the video was determined after detailed investigations by An Garda Síochána in relation to features of the laptop visible in the footage and other items visible in the cell.

28. In one of the four clips Aaron Brady exclaimed “fucking pigs head” while Mr. Flynn was speaking. On the morning of the 7th of May 2020, CCTV and phone evidence was presented to the jury in the trial of Mr. Aaron Brady. This occurred in the aftermath of a ruling rejecting the defence arguments that CCTV and phone evidence was inadmissible after a lengthy voir dire. Two cousins of Mr. Flynn were identified on the CCTV in front of the jury. On the same day, the 7th of May 2020, prosecuting Gardaí became aware that videos of Mr. Flynn making his witness statement to gardaí had been circulated widely in the public domain, initially by means of WhatsApp. The metadata from the clips suggests that they were first put onto WhatsApp at 12:08:14pm to 12:08:16pm on the 7th of May 2020 (after the CCTV evidence had concluded).

29. The four videos were accompanied by the following text:

‘A boy Ronan Flynn giving the guards a statement about that guard getting shot. That's over in New York. He was supposed to get extradited back here over beating a boy with a hammer and had drugs charges in New York. Got all his charges dropped and got a green card. Touting on his own cousins and them that flew him over to America and give him a job’.

30. The videos were widely disseminated on WhatsApp and came to the attention of Gardaí who were aware of the ongoing prosecution. They were also uploaded onto Facebook and YouTube. Mr Flynn, whose evidence the prosecution maintain would have been highly damaging to Aaron Brady in his trial, did not give evidence.

31. On Saturday the 6th of June 2020, one month after the very public dissemination of the videos of Mr. Flynn implicating Mr. Aaron Brady in the murder of Detective Garda Adrian Donoghue, and while his trial in respect of that murder was still ongoing, the appellant returned to messaging Mr. Burgess:

‘Wats up bro he’s doing that dis week will ya try to talk to him it's not on Burgess.’

32. His messages indicated ongoing feedback from Mr. Aaron Brady as to when Mr. Cahill was due to give evidence.

33. On the 11th and 12th of June 2020, Ms. Staunton gave evidence by video link from America.

34. On Saturday the 20th of June 2020, the appellant and Mr. Burgess had the following conversation:

Dean Byrne: “He's doing that on Monday bro”

Christopher Burgess: “Say it again to him but weather he listens r not don't know bro”

Dean Byrne: “I know bro tank he is making a show of himself it's going to be all over the telly an all”

Christopher Burgess: “Text him der bro I know he blacking his name let u know what he says”

Dean Byrne: “Tanks bro”

Christopher Burgess: “No worries bro he still haven't see message yet”

35. Mr. Cahill gave evidence between the 22nd and 24th of June 2020. The prosecution maintains that Mr. Cahill’s evidence that Mr. Aaron Brady had admitted the murder of Detective Garda Adrian Donoghue was central in obtaining a conviction against Aaron Brady and that the importance of evidence of Mr. Cahill to the prosecution case cannot be overstated, particularly in circumstances where the evidence of Mr. Flynn had been lost.

36. The submissions continue: ‘after the content was recovered from the phone found in the Appellant’s cell he was arrested and interviewed on six occasions. He lied to Gardai about never seeing the phone found in his cell before. Evidence from multiple sources and the content of the phone showed that it was his and ultimately an admission was made at trial to the effect that that phone was being used by him.’ He also lied to Gardaí about not having Facebook. In fact, there were multiple discussions sent and received by the appellant on Facebook. He further lied to Gardai about not knowing Aaron Brady or ever having talked to him.

37. Mr. Cahill in fact gave evidence between the 22nd to the 24th of June 2020.

Submissions on behalf of the Appellant

38. The appellant maintains that the correspondence did not encourage violence, nor did it threaten violence, rather that, at most, it was persuasion and does not therefore meet the criminal threshold. It is argued that persuasion, in its natural and ordinary meaning, is where reasoning or argument is used to make someone do or believe something; and that it is not inherently unlawful. Analogy is drawn with the Criminal Justice Act 1999, s. 41, which creates the offence of intimidation of a witness. The appellant points out that the indictment envisages a conspiracy where a lawful act is used to secure an unlawful object, but that persuasion is not unlawful.

39. The appellant also relies on dicta in R v. Kellet [1975] EWCA Cram J 0620, and in particular dicta that: ‘it would seem repugnant to justice and to common sense if in every one of these cases the offender can be said to be attempting to pervert or deceit or obstruct the course of the ends of justice when it addressed the limits of the offence.” The court there also held that “the offence of attempting to pervert the course of justice would not necessarily be committed by a person who tried to persuade a false witness, or even a witness he believed to be false, to speak the truth or to refrain from giving false evidence.’

40. Reliance is also placed on an extract from Minister for Justice and Equality v. Vladislev Sevczech , unreported, 11th November 2020. At para. 24, it is stated that: ‘a court should exercise caution in seeking to criminalise behaviour by reference to what is a broad and somewhat ill-defined offence of criminal contempt and that the jurisdiction to punish for criminal contempt should be exercised sparingly’.

41. While by its nature the offence must be sufficiently broad to encompass activities or circumstances which may not have come before the court in the past, the above observations are relied on to provide guidance in considering an indictment which is vague and obtuse and is unclear as to the allegation made.

42. Importantly, the appellant submits that the indictment does not charge the respondent with conspiracy to pervert the course of justice, or conspiracy to intimidate or interfere with witnesses, instead, it charges with conspiracy to “persuade” Mr. Cahill not to give evidence.

43. The appellant maintains that what he describes as the mere descriptor of lawful or potentially lawful conduct, i.e. persuasion, is not rendered unlawful simply by designation as such on an indictment. It is further submitted that a crucial distinction is to be drawn between phrasing of the indictment which describes the conspiracy in the round as a course of conduct, and not the persuasion and that the phrasing of the indictment deprived a jury from the ability to make a finding based on the ingredients of the offence. It is further submitted that, based on the decision in Kellet, the jury must address the means used to procure the offence. Here, it is submitted that there was no evidence adduced as to the means, aside from the bare allegation of persuasion, and no direction was given in relation to “these means”.

44. In conclusion, it is submitted that there was no assertion or allegation of persuasion by improper means, therefore an essential component of the offence has not been proven; and that there was no consideration of the belief of the respondent, where, if that belief was honest, the decision in Kellet would indicate that the actions taken were not necessarily unlawful.

Submissions on behalf of the Respondent

45. The respondent submits that it is unclear what utility is to be gained from comparing the common law offence with which the appellant was charged and the statutory offence under section 41 of the Criminal Justice Act 1999. It is submitted that: ‘there is simply no basis to suggest that the existing common law offence of embarking on a course of conduct which has the tendency to and is intended to pervert the course of public justice is or was influence or altered in some way by the enactment of the statutory offence of intimidation of a witness or juror’.

46. As to the application for direction at trial, the director submitted that, on the evidence, the trial judges were not obliged to conclude that the appellant genuinely believed that Mr. Cahill was perjuring himself. After Mr. Cahill had given evidence, information was discovered which included pejorative images about him. It was submitted on behalf of the DPP that the court would be entitled to conclude that such phraseology showed the appellant’s true views of Mr. Cahill and that far from believing that he was acting as an agent of justice in attempting to prevent Mr. Cahill from giving false evidence, the appellant’s real view was that Mr. Cahill had offended against the appellant’s “criminal code” by giving such evidence. Reference is also made to voice recordings and messages in which the appellant and a Mr. Stewart Tighe expressed contempt for Mr. Cahill in relation to his

decision to give evidence (as opposed to giving evidence which was not true).

47. The respondent also relied on evidence that, prior to sending Mr. Cahill’s statements to Mr. Burges, he had stated that he would let everyone know what the statements contained, which, the respondent submits clearly evidences an intention to place improper pressure on Mr. Cahill. It was further submitted that the messages showed that the appellant was very anxious that Mr. Burges did not distribute the statements themselves.

48. It was also submitted that a person accused of the offence alleged against Mr. Brady was quite clearly someone alleged to be at the highest level of criminal activity and any request made by them was one which was automatically to be taken as being accompanied by an implied threat of violence. The respondent submitted that this was not an attempt to interfere with a minor offence, but an attempt by a man charged with the most serious offence to prevent key witnesses from giving evidence against him. Therefore, it is submitted that it was not necessary in this case, or in any case involving gangs, firearms, and murder, for there to be any direct threat of violence when considered in the context of the facts of the case. The threat of violence is implicit in any such communication and that the application made at trial was unsupported by the evidence.

49. The respondent submits that an intention to pervert the course of justice was made, even if the motive was to achieve what the appellant believed to be a just result because the offence was directed at protecting the process of public justice and was not concerned with the outcomes. It was not a case where private justice could be invoked, and the course of public justice was not any particular outcome, rather it was the process. Therefore, it is submitted that the phrase “public justice” in the indictment was critical. It involved witnesses giving evidence so that tribunals of fact could reach conclusions. It did not involve persons imposing their own private views or beliefs on that process. This concerned the administration of justice, rather than an individual’s subjective view not to be permitted to interfere in the course of public justice. Reference was made to the “absolutist” position of the respondent in, and reliance was placed on Abraham v. Cardiff Crown Court [1974], that once proceedings have set the course of justice in motion, they should be allowed to flow unobstructed and undiverted (this was made in refence to perjury, but the respondent submits that it is equally made to reference to interference with witnesses).

50. The respondent also submits that, if the appellant was someone who was concerned about a witness giving false evidence, that could have been dealt with through legal means by making a statement to the Gardaí or contacting people involved in the case, such as a defence solicitor, or indeed making representations to the DPP where permissible under the Prosecution of Offences Act 1974.

51. Reliance is placed on Rafique, where Lord Taylor C.J. observed that: ‘to excuse an act by claiming that the truth is on your side is to confuse the course of justice with the result arrived at’.

52. The trial court had considered that there were considerable merits in the “absolutist” approach advocated by the respondent but indicated that it was ruling “with reluctance” that such was not the law in this jurisdiction.

53. In this appeal, the respondent maintains her “absolutist” position that, in order to ensure that the law is clear and comprehensible, and for sound public policy reasons:

1. All attempts to persuade a witness not to give evidence amount to attempts to pervert the course of public justice; and

2. That any claim of perjury should be exposed, and the truth ascertained only by examination and cross examination of witnesses in open court; and

3. The course of justice is not the outcome but the process.

54. With regard to the “means”, the respondent also submits that there was considerable evidence to support the contention that the appellant’s intention was a nefarious one, and further that unlawful means were utilised by the appellant in seeking to persuade Mr. Cahill not to give evidence. The respondent therefore requests the court to reject the appellant’s appeal.

ANALYSIS AND DECISION

55. There are two essential issues in this appeal. The first is whether the indictment was an adequate one. The second is whether there was sufficient evidence against Mr. Byrne to convict him of the offence for which he was found guilty.

56. The trial judge accepted a submission on behalf of Mr. Byrne that the law governing the offence with which he was charged is as set out in R. v Kellett [1976] Q.B. 372. That judgment, of the Court of Appeal of England and Wales, dealt with a situation where a respondent in divorce proceedings threatened to sue two of the couple’s neighbours for defamation. The two neighbours were meant to act as witnesses on behalf of the wife in the divorce suit. The allegation in the criminal case was that the husband had attempted to pervert the course of justice. As it happened, ultimately one of the neighbours gave evidence in the divorce proceedings notwithstanding the threat of defamation proceedings; the other did not.

57. In a wide-ranging judgment and following a review of authorities going back to Rex v. Bishop of Lincoln (1637) 3 State Tr. 770, Stephenson L.J. (with whom Orr L.J. and Kenneth Jones J. agreed) set out the necessary ingredients of the crime. At page 383 of the report, he observed:

‘Perversion of the course of justice is per se an offence against the public weal. An attempt (or incitement) to pervert (or defeat) the (due) course of justice is an offence against the common law and no less than a conspiracy to pervert it was a punishable misdemeanour. Reg. v. Grimes (Note) {1968} 3 All E.R. 179, 181, per Kilner Brown J.; Reg. v. Vreones [1981] 1 Q.B.360, 367; Rex v. Tibbits and Windust [1902] 1 K.B.

77; Rex v. Greenburg (1919) 63 S.J. 553; Reg. v Andrews [1973] Q.B. 422, 425 and Reg. v Panayiotou [1973] 1 W.L.R. 1032. Those cases show also that tampering with evidence inducing a person to give false evidence, or not to give evidence, for reward are instances of this common law offence, whether the evidence is to be given in criminal or in civil proceedings and whether the inducement is effective or, as in this case, not. But they were all concerned with the manufacture of false evidence or the withdrawal of a true complaint. They do not deal with the limits of the offence or indicate whether it can be committed where the evidence of the potential witness is false or may be false, or whether it can be committed where the means used are not bribery or reward but threats, or where the threats used are threats to exercise a legal right, or where the intention, or one of the intentions of him who approaches the potential witness is to exercise such a right or to see that justice, or what he believes to be justice, is done to himself or another’.

Stephenson L.J. went on (at page 388) to approach some of the limits of the offence. In an important passage, he said:

‘Secondly, with this among other authorities in mind, we think that however proper the end the means must not be improper. Even if the intention of the meddler with a witness is to prevent perjury and injustice, he commits the offence if he meddles by unlawful means.

Threats and bribery are the means used by offenders in the cases, and any pressure by those means – or by force, as for example by actually assaulting or detaining a witness – would, in our opinion, be an attempt to pervert the course of justice by unlawfully or wrongfully interfering with a witness. If he alters his evidence or will not give it “through affection, fear, gain, reward, or the hope or promise thereof”

(in the words of the oath which used to be administered to the foreman of a grand jury), the course of justice is perverted, whether his evidence is true or false and whether or not it is believed to be so by him who puts him in fear or hope’.

58. At page 391, the judge observed:

‘So, in our judgment, the exercise of a legal right or the threat of exercising it does not excuse interfering with the administration of justice by deterring a witness from giving the evidence which he wishes to give before he has given it. If Mr. Keys had been the defendant’s tenant and the defendant had given him or threatened to give him notice, he would have been equally guilty. In Shaw v. Shaw (1862) 6 L.T. 477 the respondent to a divorce suit called on a former servant and threatened her with prosecution for perjury if she gave evidence of his cruelty to his wife. The Judge Ordinary found that the respondent went with the intention of intimidating the servant and preventing her from giving evidence, and the respondent was saved from committal by apologising and paying costs. That was clearly not only a contempt but an attempt to pervert the course of justice; and even if the servant’s evidence had been false and the respondent had believed that she might be prosecuted for perjury after giving it, the threatening language he used would, in our opinion, have been enough to convict him of the attempt’.

59. Finally, at page 392 Stephenson L.J. gave the following general guidance:

‘There may be cases of interference with a witness in which it would be for the jury to decide whether what was done or said to the witness amounted to improper pressure, and so wrongfully interfered with the witness and attempted to pervert the course of justice, and it would be not only unnecessary and unhelpful but wrong for this court or the trial judge to usurp their function. The decision will depend on all the circumstances of the case, including not merely the method of interfering, but the time when it is done, the relationship between the person interfering and the witness and the nature of the proceedings in which the evidence is being given. Pressure which may be permissible at one stage of the particular proceedings may be improper at another. What may be proper for a friend or relation or a legal adviser may be oppressive and improper coming from a person in a position of influence or authority. But it is for the judge to direct the jury that some means of inducement are improper and if proved make the defendant guilty, and this was such a case. A jury should be directed that a threat (or promise) made to a witness is, like an assault on a witness, an attempt to pervert the course of justice, if made with the intention of persuading him to alter or withhold his evidence, whether or not what he threatens (or promises) is a lawful act, such as the exercise of a legal right, and whether or not he has any other intention or intends to do the act if the evidence is not altered or withheld’.

60. Both before the Special Criminal Court, and in this appeal, counsel for the DPP argued for what was somewhat unattractively described as an “absolutist” position. In essence this provides that: ‘all attempts to persuade a witness not to give evidence amount to attempts to pervert the course of justice’; paragraph 114 (a) of the DPP’s written submissions. Sections

(b) and (c) of paragraph 114 represent the reasons why this rule is justified rather than describe further elements of the rule.

61. It is worth considering what the approach of the DPP would mean in practice. As her counsel accepted at the appeal hearing, it would mean that a clinician who advised a seriously ill patient not to give evidence (as the stress of doing so could cause serious health problems) would be guilty of a criminal offence. Counsel offered the comfort that the decision to prosecute in such a case would involve an exercise of discretion by the DPP. This overlooks the fact that a medical professional acting in the best interests of their patient would nonetheless be dependent on a discretionary decision by an official in the DPP’s office to avoid prosecution for a serious criminal offence. It is possible to conjure up a range of other real-life examples of cases where the criminalisation of individuals would be quite undesirable; one wonders whether it is really justifiable to define the offence in such a way that a mother advising a teenage son not to give inaccurate evidence thereby commits a crime.

62. We have concluded that it is neither necessary nor desirable to decide on whether the “absolutist” approach is the law in this jurisdiction. It is not necessary as the appeal can be decided on the basis of the law as described in Kellet and as applied by the Special Criminal Court in this case. It is undesirable as the question is not one fully argued by both sides in this appeal. While counsel for the DPP certainly put forward a strongly argued case in favour of the “absolutist” position, counsel for Mr. Byrne did not engage in any detailed way with these submissions. Instead, the Byrne position was advanced by his counsel by reference to the decision in Kellet, and by arguing that the Kellet requirements were not met in this case. It is to that contention that we will now turn. Before doing so, however, we would note that the position as contended for by counsel for the DPP may well be accepted as being correct. However, this will only be after the issue is comprehensively debated in an appropriate case.

63. In this case, counsel for the appellant submit that persuasion is not inherently unlawful. Specifically, they claim that: ‘an attempt to pervert the course of justice is not necessarily committed by a person who tries to persuade a witness believed to be false (sic), as long as the means are not improper. In this regard, it is submitted that the means defined in the indictment are persuasion, which is not inherently improper.’

64. In considering the adequacy of the indictment, the Special Criminal Court referred to the provisions of section 4(1) of the Criminal Justice (Administration) Act 1924. These read:

'S.4 – (1) Every indictment shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge”. Here, the indictment against Mr. Byrne is headed “conspiracy to pervert the course of justice”. The particulars of the offence did not confine themselves to an allegation that Mr. Byrne conspired with Mr. Brady “to persuade Daniel Cahill…not to give evidence…” but rather went on to assert that such persuasion not to give evidence constituted “a course of conduct which had a tendency to, and which was intended to pervert the course of public justice.’

65. We agree with the trial judges that this indictment was sufficient having regard to the requirements of section 4 (1) of the 1924 Act. It is not correct to say, as counsel for the appellant do in their written submissions, that the indictment is: ‘vague and obtuse as it is unclear what exactly the allegation is.’ The offence of which Mr. Byrne is accused is very clear. It is alleged that Mr. Byrne conspired to persuade a witness not to give evidence and that this constituted a course of conduct which had the intention or effect of perverting the course of justice. The persuasion of the witness is an essential element of the course of conduct asserted to pervert the course of justice. The submission that the indictment is in some way defective as: ‘it describes the conspiracy in the round as the course of conduct, and not the persuasion’ is strained and unconvincing. The distinction, described as subtle but crucial, is in our view unreal and immaterial. Equally unconvincing is an argument that the indictment is defective because it referred to Mr. Cahill as opposed to an intended witness. No one could have been misled by this description.

66. We now move to the second aspect of the appeal. Given that Kellet removes from criminal liability the activities of a person who (without using improper means) merely tries to persuade a person not to give evidence when the persuader believes that this evidence would be “false”, it is submitted that the Special Criminal Court could not have been satisfied that Mr. Byrne was not such an actor.

67. The judgment of the court below addressed this issue in this way:

‘Bearing that in mind, it is with some reluctance the Court is satisfied that the authorities do not go as far as the prosecution contend and that the position is as set out in the decisions of the Court of Appeal for England and Wales as referred to earlier herein. Thus, there may be an extremely limited set of circumstances whereby a person who persuades a false witness or even a witness believed to be false to speak the truth or refrain from giving false evidence, may not commit an offence but, however proper the end, the means must not be improper. Whether the means are proper or improper is a matter for the jury to determine, bearing in mind all the circumstances of the case, including not only the method of interfering, but the time when it is done, the relationship between the parties, the nature of the proceedings in which the evidence is to be given. What may be proper for a friend, a relation, a legal or a health adviser to do may be inappropriate and improper coming from someone else but it is the case that acts -- but it is always the case that acts such as the use of force or threats of force or corrupt inducements will always amount to improper means. The necessary intent is to use the improper means with an intention to obstruct, interfere with, defeat or change the course of public justice, the course of public justice being the process as opposed to the ends of justice’.

68. I interrupt the quotation of the relevant section of the ruling of the Special Criminal Court to note one aspect of the decision. So far, the ruling constitutes a clear and accurate summary of the relevant principles to be abstracted from the judgment of Stephenson L.J. in Kellet. This is the legal position of which counsel for Mr. Byrne had successfully argued. There is no complaint, nor could there be, by Mr. Byrne on this appeal about the approach to be applied to the facts of this case.

69. The ruling continues:

‘Taking the above into consideration, we must consider whether, taking the prosecution evidence at its highest, a properly directed jury could convict the accused of the offence charged in the indictment. We are satisfied that, taking the prosecution evidence at its highest, there is evidence which could justify a jury in coming to a conclusion beyond a reasonable doubt that the accused is guilty of the offence charged. For example, take the following propositions, and this is not an exhaustive examination of all the evidence in the case or an exhaustive list of propositions, but as I say, for example, take the following propositions, that the user of IPS 16, that is the phone, was Dean Byrne, that Aaron Brady and Dean Byrne were in communication with one another, that Aaron Brady and Dean Byrne agreed to put in place a course of conduct whereby Daniel Cahill would be prevailed upon in an effort to persuade him not to give evidence, that in furtherance of that agreed course of conduct, Dean Byrne was in communication with Christopher Burgess, that in furtherance of that agreed course of conduct Aaron Brady provided Dean Byrne with images of [parts] of the book of evidence, namely a statement of Daniel Cahill, for use in furthering their agreed course of conduct, that Dean Byrne forwarded the images of the statement to Christopher Burgess, in pursuit of the agreed course of conduct with a view to same being further disseminated to others, that Dean Byrne was not motivated or wholly motivated or solely motivated by a desire to prevent false testimony being given, that the means used or to be used in pursuance of the agreed course of conduct were improper in all of the circumstances.

In that light, a jury might consider that Dean Byrne -- what was his direct, if any, interest in this trial? What was the relationship or lack of relationship between Dean Byrne and Daniel Cahill, the recruiting or attempting to recruit family members of the witness to call upon the witness not to give evidence, the dissemination of the statement of Daniel Cahill to others, the timing of the events, the nature of the proceedings and, finally, that it was the intention of the accused to pervert the course of justice in the sense that it was his intention in carrying out or agreeing to carry out the course of conduct agreed, to obstruct, interfere with, defeat or change the course of justice, bearing in mind the distinction between the course of justice and the ends of justice’.

70. The factors identified by the trial judges therefore include:

(a) Mr. Byrne was the user of the phone which contained both photographs of Mr.

Cahill’s statement and extensive conversations between Mr. Byrne and Mr. Brady;

(b) Mr. Brady and Mr. Byrne were in contact with each other at the relevant time;

(c) The agreement between Mr. Brady (charged with the murder of a serving Garda) and Mr. Byrne to dissuade an important witness from giving evidence;

(d) The provision by Mr. Brady to Mr. Byrne of photographs of Mr. Cahill’s witness statement;

(e) The transmission by Mr. Byrne of photographs of Mr. Cahill’s statement to at least two people (Derek “Dicko” Dixon – an acquaintance of Mr. Cahill, and Christopher Burgess – a first cousin of Mr. Cahill, living with Mr. Cahill’s father at the time of the trial);

(f) The fact that the means used to persuade Mr. Cahill were improper. This may include the circulation of the Cahill witness statement without the permission of the relevant court – see Breslin v. McKenna [2009] 1 I.R. 298.

71. The Special Criminal Court simply gave these features of the evidence as examples. It also had the following testimony available to it:

(g) The fact that Mr. Byrne appears to have been aware of Mr. Brady’s strategy in defending the murder charge;

(h) Mr. Byrne’s communication to Mr. Burgess that the respective fathers of Mr. Brady and Mr. Cahill might meet to “sort it out”;

(i) The ongoing communications from Mr. Byrne to Mr. Burgess asking whether Mr.

Burgess had tried to contact Mr. Cahill and stating when Mr. Cahill would be giving evidence;

(j) On the 6th of June 2020 (and after the ultimately successful attempts to dissuade Mr.

Flynn from giving evidence, including the circulation online of the videos and accompanying text described at paragraphs 27 to 29 of this judgment), Mr. Byrne resumed his contact with Mr. Burgess. This is summarised at paragraphs 31 to 34 of this judgment;

(k) Very significantly, after Mr. Cahill had given evidence against Mr. Brady, messages from Mr. Byrne (found on his phone) described Mr. Cahill as “a filth bag rat bastard of a thing” and “a fucking rat cunt”;

(l) Similar to (k), at page 65 of the transcript of Day 13 of the trial counsel for the DPP referred to a tape of a discussion between Mr. Byrne and Mr. Stuart Tighe while Mr.

Cahill was actually in the course of giving his evidence. That conversation is described as: ‘not…directed at stopping Daniel Cahill giving evidence, it’s more directed as a reprisal on Daniel Cahill for giving evidence.’

72. While very much a secondary consideration, there is also some merit in the submission of the prosecution that the jury would be entitled (in assessing any belief on the part of Mr. Byrne that the proposed evidence of Mr. Cahill would be false or incorrect in any way) to take into account the lack of any analysis by Mr. Byrne (or available to him) that Mr. Cahill’s witness statement was wrong in any way.

73. It is clear that there was ample evidence to support a finding that Mr. Byrne had conspired to put improper pressure on Mr. Cahill not to give evidence, and to employ unlawful means in doing so, specifically by unauthorised use of Mr. Cahill’s witness statement. The circulation of that statement was an important part of the pressurising of Mr. Cahill. In that regard, it is noteworthy that Mr. Burgess asked for a more legible version of the statement to be sent to him. As Mr. Burgess was a key conduit through which Mr. Cahill was to be influenced, this request underscores the significance of the statement in carrying out the scheme to dissuade Mr. Cahill from testifying. Equally, any jury would have been quite entitled on consideration of the evidence to reject any notion that Mr. Byrne was acting in the belief that Mr. Cahill proposed to give inaccurate or misleading evidence against Mr. Brady.

74. We will therefore dismiss this appeal.