Court of Appeal dismisses appeals against convictions for false imprisonment and assault causing serious harm.

APPROVED NO REDACTION NEEDED

THE COURT OF APPEAL Neutral Citation: [2026] IECA 55 Record No.: 246/21; 247/21; 5/22

McCarthy J. Kennedy J. Burns J.

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT

- AND -

ALAN HARTE, ALAN O’BRIEN, AND DARREN REDMOND APPELLANTS

JUDGMENT of the Court delivered on the 13th day of January, 2026 by Mr. Justice Patrick McCarthy.

1. This is an appeal against conviction. On 8 November 2021, the appellants were convicted by the Special Criminal Court of false imprisonment, contrary to s. 15 of the Non-Fatal Offences Against the Person Act 1997 (‘the 1997 Act’), and assault causing serious harm, contrary to s. 4 of the 1997 Act. A fourth co-accused was acquitted.

2. The trial commenced on 2 June 2021 and concluded to speeches of Counsel on 6 August 2021. On 8 November 2021, the verdict of the court was delivered.

3. On 20 December 2021, the trial court pronounced the sentence imposed on each appellant. Alan Harte was sentenced to 30 years’ imprisonment; Alan O’Brien was sentenced to 25 years’ imprisonment; and Darren Redmond was sentenced to 18 years’ imprisonment, the final three years of which were suspended on certain terms and conditions.

Background

4. On 17 September 2019, at approximately 18.30, the victim finished work at Quinn Industrial Holdings (‘QIH’), Derrylin, County Fermanagh and drove to his house, situated close-by, at Kinawley. As he drove up a laneway to his house, he saw a large white vehicle in a stationary position which caused him to bring his jeep to a halt. Immediately, this vehicle reversed at speed into the front of the victim’s jeep. Two males, who were wearing balaclavas and were dressed in black, exited the vehicle. The driver of the vehicle was carrying two cans of clear liquid and both men had cable ties around their arms. The driver smashed the victim’s window and both men got into the jeep. A struggle ensued with the victim, who was eventually taken out of his jeep and brought to the back of it. He became aware that a third assailant was present, who was in possession of a Stanley knife which was held to the victim’s neck. This man demanded that the victim get into the boot of a black Audi saloon car which had been reversed into the laneway.

5. The victim described the driver of the white car as being slightly taller than himself with a similar body shape, although probably more athletic. In his statement to the investigating guards, he described this man as having blonde hair, although in examination-in-chief he referred to the driver’s hair colour as being blonde or light brown. In cross-examination, he accepted that the description of blonde hair was probably more accurate as it was provided closer in time to the events. The victim described the other individual as being of a similar height to himself but slightly slimmer. The third man on the scene was described by the victim as being perhaps slightly taller, a bit heavier, and older than the other two men, as well as having a Dublin accent.

6. The Audi, with the victim in its boot, commenced driving from this location. The third man who had come on the scene was the driver. The man who had been driving the white car was in the back of the Audi and the other man was in the passenger seat.

7. In the course of the journey, the victim managed to open the boot whereupon he attempted to escape. However, he was hit across the face with a wooden object, forced back into boot and material was placed over his head. The man who had been the driver of the white vehicle, and who was now sitting in the back of the Audi car, thereafter held the victim’s hands, resulting in the victim noticing that this man was wearing a black top which had a white “Under Armour” logo towards his waist.

8. The victim subsequently heard the driver of the Audi saying to someone on the phone: “Boss, this man has resisted and we’ve had to hit him”.

9. As the boot of the vehicle did not close properly, the victim was in a position to describe parts of the journey and some landmarks which he noted along the way. When they arrived at their destination, the victim was taken out of the car and brought through what appeared to be a farmyard into a blue container, which he thought resembled a horsebox.

10. It was made clear to the victim that the reason for his abduction was because of his role as a representative of QIH. It was demanded of him that he and the other representatives of QIH resign from their positions and that the civil litigation relating to QIH be brought to an end. If he did not comply with these demands, it was implied that his family were at risk and details of some of his recent movements and those of his family were referred to.

11. The driver of the white vehicle became concerned regarding DNA evidence being found on the person of the victim. He used a Stanley blade to scrape underneath the victim’s fingernails, drawing blood, and cut his fingernails. It was decided that bleach was required to properly carry out this task. Two of the assailants (whom the victim thought were the driver of the Audi and the driver of the white vehicle) left the container for approximately 15 minutes and, on their return, the victim’s body was rubbed down with bleach. The victim heard a car starting and moving off after they initially left the container.

12. The driver of the Audi informed the victim that whilst he would be released, it was necessary to “rough him up”. The victim was put sitting on the ground and the driver of the Audi struck the victim’s leg twice with a wooden baton, breaking his leg on the second occasion. The victim was cut with a Stanley knife from ear to chin on both sides of his face and was struck on his right side and arm between 12 and 20 times. The letters ‘QIH’ were scored on the victim’s chest to his stomach. In the course of these assaults, the demand that the victim resign from QIH was repeatedly made. The victim estimated that he was in the container for approximately 45 minutes.

13. The victim was removed from the container and pushed into the cargo area of a large Ford transit van. Three men accompanied him in this van. The demand that he resign from QIH was again repeated and he was ordered not to go to the guards to tell them that a gang of “Dubs” had done this. The victim was thrown out of the van onto the side of the road. Shortly afterwards, at approximately 20.45, a member of the public found the victim on the roadside at Cloggy Cross, County Cavan.

14. A police investigation began immediately. As this area is in close proximity to the border with Northern Ireland, both the Police Service of Northern Ireland (‘PSNI’) and An Garda Síochána were initially involved.

The Case Against the Appellants

15. The case against the appellants was based on various strands of circumstantial evidence, to include the evidence of the victim; CCTV footage and Automatic Number Plate Recognition (‘ANPR’) records; mobile phone call data records; and forensic evidence.

16. Prior to the victim being found on the roadside, a report had been received by the PSNI of two cars on fire at Kinawley. These vehicles transpired to be the victim’s vehicle and the vehicle which collided into his vehicle outside his house, namely a silver 5 series BMW bearing registration number YA65VBB. Investigations revealed that this BMW was stolen and that this was a false registration number. The correct registration number of this BMW was TY09ONE. This BMW, bearing its correct registration plates, had been recorded on the ANPR system passing through the N4 toll plaza in a westward direction on the evening of 19 August 2019, the day after it had been stolen in Dublin.

17. In light of the victim’s report of bleach being obtained during the course of his abduction, investigations commenced into whether bleach had been purchased in the general vicinity of the area which the victim had described travelling through on the journey from his house. Enquiries carried out by An Garda Síochána revealed that a bottle of bleach had been purchased at Lynch’s Gala shop in Killydoon, County Cavan at 20.00 on the night of the abduction. CCTV footage revealed that the purchaser left that premises in a white van, which then travelled in a northerly direction.

18. The purchaser of the bleach was identified as Luke O’Reilly. When he was contacted by the investigating guards in relation to this purchase, he voluntarily provided his mobile phone number to the investigators. His mobile phone records were obtained from Vodafone on foot of a search warrant obtained pursuant to s. 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997 (‘a s. 10 search warrant’). Further investigation revealed that this man owned a yard at Drumbrade, County Cavan. This yard was inspected on foot of another search warrant, resulting in a blue horsebox being located in the yard. A forensic examination of the horsebox with luminol revealed the presence of human blood, and when DNA investigations were conducted on swabs of blood taken from within the horsebox, a match to the victim’s DNA was established. Accordingly, this horsebox and yard were identified as the location of where the victim had been detained and assaulted.

19. CCTV footage was obtained which tracked the journey of the black Audi, after the victim had been abducted from his house at Kinawley, to this yard at Drumbrade. CCTV footage was also obtained which tracked the journey of the white Ford transit van from the yard at Drumbrade to close to the location where the victim was left on the roadside after his abduction.

20. In addition, CCTV footage was obtained which tracked the journey of a black Audi, from approximately 15.50 on 17 September 2019, from Booths/Goold’s Timber, Ballinagh, County Cavan, to a location close to the victim’s house at 18.31. The black Audi was depicted as bearing registration plates WEZ 2128 in some of the CCTV footage. This transpired to be a false registration. The correct registration number of the black Audi was 01 C 26963.

21. An examination of the phone records of Luke O’Reilly, the man who purchased the bleach, revealed two calls of interest on 17 September 2019, during the time when the victim was held captive, namely a call by Mr. O’Reilly to a number 0851502200 (‘2200’) at 19.30 lasting 246 seconds, and a call from 2200 to Mr. O’Reilly’s number at 19.54 lasting 42 seconds. In addition, 2200 had called Mr. O’Reilly’s number at 21.59 for 1062 seconds the previous night. Arising from various strands of evidence, 2200 was attributed to Cyril McGuinness, also known as “Dublin Jimmy”, who is now deceased. Mr. O’Reilly, when interviewed by the investigating guards, explained these calls to and from 2200 by reference to a truck which he had transported from the United Kingdom for Cyril McGuinness.

22. Phone data was obtained from the mobile telephone providers on foot of a s. 10 search warrant in respect of 2200. This data revealed another call of interest during the period of the victim’s captivity, namely a call from 0851149717 (‘9717’) to 2200 lasting 50 seconds at 19.52. As we have already noted, this call was followed by the call from 2200 to Mr. O’Reilly at 19.54, who then purchased the bleach at 20.00.

23. Arising from this information, investigations commenced into 9717. Phone records obtained on foot of a s. 10 search warrant revealed that this phone number related to a pre-paid account which did not have a registered subscriber. Top-ups for this phone number prior to the abduction of the victim therefore became relevant. The call data records relating to 9717 revealed a top-up to the phone number at a particular petrol station on 2 September 2019. CCTV footage from that petrol station at the time of the top-up for 9717 depicted Alan Harte, conducting a transaction at the checkout at the time of the top-up. Other evidence also connected Mr. Harte to this number.

24. Arising from this information, investigations commenced into Mr. Harte’s movements around the time of the victim’s abduction. As it happened, Mr. Harte had attended Store Street Garda Station, Dublin 2 to make a complaint to the guards on 16 September 2019, which was the day before the events of the subject matter of the prosecution. CCTV footage revealed his movements thereafter. He was noted getting into the front seat passenger-side of a red Volkswagen at 15.02 on Talbot Street, Dublin 2. He emerged from this car close to his apartment at Island Key Apartments, East Wall at 15.09, whereupon he met Alan O’Brien, who appeared to be waiting for him. Mr. O’Brien was wearing a black top which had an Under Armour logo at the back of the neck. Mr. Harte went into the apartment block where he lived, before emerging wearing a light grey top, whereupon he met up with Mr. O’Brien. The two men were depicted on foot turning into the car parking area of the apartment complex. Immediately thereafter, at 15.16, a distinctive silver Kangoo van YS57PXU drove out of the car-parking area. CCTV footage depicted that the driver wore a grey top, and the front seat passenger wore a dark top. This van was recognisable by reason of a highly distinctive red lightning bolt to the back of the driver's door and roof bars at both ends, together with a yellow number plate and a missing hubcap from the front-passenger side.

25. CCTV footage depicted the distinctive Kangoo van travelling through Virginia and Belturbet, County Cavan between 16.12 and 17.03. At 17.19, the Kangoo van was captured by the PSNI ANPR system at Derrylin and at 17.26, a van of similar size and shape was depicted on CCTV in Kinawley. The Kangoo van disappeared from the view of CCTV cameras located in that area for a number of hours after this sighting.

26. At 19.55, a Black Audi bearing registration number 01C26963 was recorded passing a PRSI ANPR camera at Derrylin, County Fermanagh.

27. At 21.24 a black saloon car was seen travelling at Killeshandra towards Ballinagh, County Cavan, in front of a silver van with some similar characteristics to the Kangoo van. The Kangoo van again featured on CCTV at Ballingah at 22.40, however it was not accompanied by a black saloon car.

28. At 23.06, the Kangoo van was depicted on CCTV footage at an Applegreen petrol station in Virginia, County Cavan. Mr. Harte was depicted as the driver of the Kangoo van and Mr. O’Brien as the passenger. At 00.17, the Kangoo van returned to Mr. Harte’s residence and turned into the car-parking area it was noted to have emerged from earlier that day. Mr. Harte was seen entering his residence at 00.18.

29. CCTV footage relating to 17 September 2019, the day of the abduction, was also of relevance. Mr. Harte was captured at his apartment complex at 12.24 in the company of the Darren Redmond. Having exited the apartment complex, they walked towards the area where the Kangoo van had been parked the previous night and then returned to the apartment complex. At 12.50, Mr. Redmond and a Mr. Donnery were captured walking towards a junction outside the apartment complex. At 12.54, Mr. O’Brien, who was carrying a bulky white plastic bag, and was accompanied by a woman, walked towards this junction. The woman continued walking and Mr. O’Brien (who was wearing a black long-sleeved Under Armour top) joined Mr. Redmond and Mr. Donnery. Mr. Redmond, Mr. O’Brien and Mr. Donnery walked towards the apartment complex and met Mr. Harte (who was wearing a white t-shirt) at 13.00, as he emerged from the complex. Mr. Donnery left the group and returned to the apartment complex. CCTV footage depicted the three accused walking towards the entrance to the car park of the apartments. At 13.02, the distinctive Kangoo van left the car park. The driver and the passenger were wearing a white top and a dark top respectively, which accorded with the colours of the tops worn by Mr. Harte and Mr. O’Brien immediately beforehand. At 13.23, the Kangoo van was depicted on the ANPR system passing southbound at the M50 eFlow toll with the frontseat passenger wearing a t-shirt with an Under Armour logo.

30. The Kangoo van was depicted on CCTV in Ballinalack and Rathowen, County Westmeath. At 14.45, it was depicted at Granard, County Longford. This was the last sighting of the Kangoo van until later that night. In the meantime, CCTV footage relating to the black Audi came into play from approximately 15.50 at Ballinagh, County Cavan to a location close to the victim’s house at 18.31, as already described in paragraph 20 above.

31. A van similar in appearance to the Kangoo van was recorded at 21.09, travelling in a southerly direction at Killydoon, County Cavan. Another sighting of a similar type of van was recorded in Castlepollard, County Westmeath at 21.30. At 00.10, Mr. Harte and Mr. Redmond were seen entering the lobby of Mr. Harte’s residence having got out of a taxi.

32. Phone evidence relating to Mr. Redmond was also relevant. 0854141567 (‘1567’) was attributed to Mr. Redmond. While this number was registered to his mother, evidence was called and accepted by the trial court that this was a number which Mr. Redmond was utilising around this time. The 9717 number linked to Mr. Harte contacted 1567 by text and phone call at 01.16 on 17 September, and then called 1567 five times between 9.33 and 10.32. 1567 called 9717 back at 10.33, 11.07 and 12.13, before Mr. Redmond and Mr. Harte were seen in the entrance hall of Mr. Harte’s apartment complex at 12.24. In addition, data connections were active on Mr. Redmond’s phone throughout the day, which revealed 1567 utilising cell site locations along the route which the Kangoo van travelled from Dublin. From 15.30 until 19.56, 1567 utilised the cell site which provided service around the Dumbrade yard. By 20.51, 1567 utilised the same cell site which provided service around the area where the victim was thrown out of the Ford Transit Van. Thereafter, 1567 connected with cell sites which mirrored the route of the Kangoo van back to Dublin.

33. Investigations into the Kangoo van YS57PXU revealed that it had been purchased on

31 July 2019 for £200 in the United Kingdom. It had arrived in this jurisdiction from Holyhead on 27 August 2019, with payment for the journey being made by C McGuinness. Cyril McGuinness was depicted on CCTV footage leaving the terminus at Holyhead around the time of the departure of the Kangoo van on the ferry to Ireland.

34. On 9, 10 and 12 September 2019, the Kangoo van was captured on CCTV in the Derrylin/Kinawley area. On 12 September 2019, the BMW bearing the false registration plates was captured on CCTV in Derrylin.

35. In late October 2019, the Kangoo van was located close to Mr. Harte’s apartment and kept under surveillance by the National Surveillance Unit (‘the NSU’). Technical equipment was secretly placed in the van by the NSU on 21 October 2019. On 23 October 2019, CCTV footage depicted Mr. Harte outside his apartment complex in the company of a man whom he appeared to be giving directions to. This man was subsequently identified as Mr. O’Brien from CCTV footage at a petrol station which depicted him driving the Kangoo van a short time later. The Kangoo van arrived at Paul Kavanagh’s Test Centre in Duleek where it was seized by An Garda Síochána on foot of a search warrant and brought to a secure facility.

36. Subsequently, the Kangoo van was subjected to forensic examination at the secure facility. A match to the victim’s DNA profile was found on a swab containing blood located on the inside of the rear sliding door of the van. A match to Mr. Redmond’s DNA was found on a swab taken from bars behind the driver’s seat which, when tested, gave an indicative result for blood. Of note, there were no back seats in the Kangoo van, making it probable that a person carried in the cargo area of the van held the bars behind the driver’s seat.

37. Issues arose with the examination which had been conducted of the Kangoo van in terms of the van not being locked; a member of NSU gaining access to the Kangoo van to retrieve the technical device which had previously been installed in the Kangoo van without notifying the investigating team; the blood sample matching the victim’s DNA profile not being noticed by the Garda forensic team when they examined the vehicle despite lighting being used; and the manner in which the swabs were collected. These issues were agitated in the course of a voir dire which ultimately concluded that this evidence would be admitted into the trial proper for consideration.

38. In February 2020, the Kangoo van was destroyed by a fire which occurred at the secure lock-up area where the van was then being stored. This resulted in Mr. Harte and Mr. Redmond not being in a position to have forensic experts examine the Kangoo van. However, the forensic examiner was in a position to provide his examination notes and DNA records to defence experts.

39. A search of Mr. Harte’s apartment was conducted on foot of a s. 10 search warrant. Items of interest which were seized from his apartment included a book entitled: “The Forensic Casebook: The Science of Crime Scene Investigation”; an iPhone identified by Mr. Harte as belonging to his partner; and an eFlow tag.

40. Cellebrite analysis of the iPhone seized from Mr. Harte’s apartment revealed a google search for Paul Kavanagh’s Test Centre in Duleek where the Kangoo van had been delivered by Mr. O’Brien. The google search was conducted just over an hour before the Kangoo van arrived at that location.

41. The eFlow tag was discovered to be connected to a black Audi A4 bearing the registration number 01 C 26963. Investigations into the ownership of this vehicle suggested that it had been sold on 6 August 2019 to a man whom the seller knew as “Dublin Jimmy”, otherwise Cyril McGuinness. A previous owner had a toll tag connected to this Audi in the car, which he omitted to remove from the car when he sold it.

42. Mr. Harte was arrested and detained for interview by the investigating guards on 21 November 2019. He indicated that when he was in the Kangoo van, it was not used in preparatory acts for the commission of the offences at issue and the abduction of the victim; that he had not left Dublin in the Kangoo van on 17 September; and that he came to have the toll tag from the Audi in his apartment because he took it out of the Kangoo van having been told that the Kangoo van was to be sold, and to have it cleared out for that purpose.

43. Mr. O’Brien was arrested and detained for interview by the investigating guards on 21 November 2019. When the inference provisions of s. 19A of the Criminal Justice Act 1984 were invoked, Mr. O’Brien indicated that he had not left Dublin on 17 September but did not give any further information.

Findings of the Trial Court

44. The general findings of fact of the trial court are as follows:—

• The black Audi depicted in CCTV footage bearing registration number WEZ2128 was the car used in the abduction of the victim from outside his residence on 17 September 2019;

• This black Audi bearing registration number WEZ2128 was the same car as Audi A4 01 C 26963, having regard to photographs of that car when advertised for sale on Done Deal on 1 August 2019;

• On 16 September 2019, the distinctive Kangoo van YS57PXU was performing a scouting and preparatory mission to and from the area where the offences in question were committed the following day; and

• Cyril McGuinness was involved in the recent purchase of the Kangoo van and the black Audi, and was an organiser and supervisor of the commission of the offences.

45. The findings made against Mr. Harte were set out by the trial court as follows:—

“Verdict in the case of Alan Harte. In this case we are satisfied that the significant strands of evidence are as follows; the specific connection of Mr Harte with the Kangoo on the 16th and the 17th of September which had recently been acquired by Cyril McGuinness for the purpose of these crimes and was demonstrated by the CCTV footage to have been used as a means of transport by those involved in the preparation for and execution of these crimes. Next point. The driving by him of the Kangoo away from Dublin 3 at 15.16 on the 16th of September. Next point. The movement of the Kangoo through Virginia at 16.12, Cavan town between 16.44 and 16.48, Belturbet at 17.03 and Kinawley at 17.26. Next point. The disappearance of the Kangoo van until 21.25 when it reappeared at Killeshandra preceded by a black Audi shaped saloon with spoked wheels and a missing rear light, followed by a sighting at Ballinagh at 22.40 and Cavan town at

22.46. We are satisfied that this saloon was the Audi that was used on the next day being put into position in the area and it was not a coincidence that the Kangoo was apparently accompanied by a black car at that time and place. Next point. The clear CCTV footage showing Mr Harte driving that van at the Applegreen filling station at Rahardrum, Virginia, County Cavan at 23.06 accompanied by Alan O'Brien. Next point. The return of the van to outside the apartment complex where Mr Harte lived at 00.17 the next morning followed by him crossing the entrance lobby at 00.18. Next point. The fact that the Kangoo was undoubtedly engaged in preparatory movements on the 16th of September in locations highly material to the crimes committed at the same time on the following evening as the Kangoo was present in the Cavan area on the evening of the 16th of September. Next point. Leaving his home and driving away from the complex in the Kangoo at 13.00 on the 17th of September. Next point. The journey of the Kangoo along the M50 southbound at 13.23 and later through Ballinalack at 14.26, Rathowen at

14.27 and Granard at 14.45. We are satisfied that the ultimate objective of this journey was to reunite with the black Audi which had been positioned somewhere north of Granard on the previous night. Next point. The call from his phone number to that of Cyril McGuinness at 19.52 that evening as established from Mr O'Reilly's volunteered handset and from Mr McGuinness's call data records. Next point. The coincidence of this call with the time period where the acquisition of bleach became an unforeseen necessity at the crime scene. Next point. The disappearance of the Kangoo until it was recorded heading south out of Killydoon at 21.09, Kilcogy at 21.12 and Castlepollard again at

21.28 to 21.30.

Next point. The return of Mr Harte to his home at 00.10 accompanied by Darren Redmond. Next point. The connection of Mr Harte to the black Audi A4 originally registered as 01C26963 which connection is established by the finding of Gardaí of the eFlow tag associated with this car in the search of Mr Harte's home. We are satisfied that this car was used to transport [the victim] to Drumbrade as seen in the relevant CCTV footage having been also acquired for that purpose by Mr McGuinness and was also positioned in that area in conjunction with the Kangoo as also seen on CCTV. Next point. The consistency of [the victim]'s description of the driver of the black Audi with Mr Harte's general appearance as seen on CCTV at that time and as distinguished from [the victim]'s descriptions of the other two men involved in these offences. Next point. The continued involvement of Mr Harte with the Kangoo as evidenced by his searches for the test centre and his apparent directing of Mr O'Brien prior to the Kangoo being brought to Duleek for delivery pursuant to sale. Last point. The conclusive confirmation of the established connection of the Kangoo to the crimes by the subsequent forensic examination.

In our view these are the decisive circumstances sufficient to support beyond reasonable doubt the conclusion that Mr Harte was heavily involved in these crimes before, during and after the commission thereof. They form a linked pattern of sufficient strength to displace coincidence and point unequivocally to his involvement in these crimes. We are in no doubt that he drove the Kangoo on both journeys on the 16th and 17th of September as evidenced by the CCTV footage from various locations on those days as described above. We are also satisfied that he was the man described by [the victim] as the driver of the black Audi that arrived to remove him from outside his home and that he was also responsible for inflicting most of [the victim]'s serious injuries. There is further evidence of his involvement which adds to the decisive and determinative circumstances listed above. We are satisfied that use of the statutory inference provisions in this case can safely be confined to acting as a check that we have not overlooked any innocent interpretation of these circumstances. In particular we refer to the first invocation of section 18 in relation to possession of the Kangoo and the invocation of section 19 in relation to associations at the three locations referred to above. We are satisfied that the circumstances called for an explanation of his association with the Kangoo on the 16th and the 17th of September. Mr Harte was the only person who was in a position to properly explain his actions in that footage which was clear enough to jog his memory of those events. His offering of no comment to these questions speaks volumes. We can only construe this response as showing that there was no innocent explanation for his activities with this Kangoo and we are therefore content to draw a limited inference that our interpretation of the events as depicted by the CCTV footage is correct.

As to Mr Harte's undoubted previous business association with the late Cyril McGuinness, this is obviously not a factor of any significance in itself. It was no doubt possible to have an innocent business or social association with Mr McGuinness. The fact of the previous association between Mr Harte and Mr McGuinness does offer limited tangential support for the prosecution hypothesis in the sense that in organising a serious crime like this an organiser such as Mr McGuinness would presumably only recruit those that he trusted and viewed as capable of performing the tasks to be allocated to them. A previous association with Mr McGuinness is therefore certainly more indicative of possible involvement than the absence of such a connection but this is a minor and nondecisive factor in this case. It is notable that Mr Harte did not offer his previous business association with Mr McGuinness to explain his activities on the CCTV footage from the

16th and the 17th of September, even though it showed him driving a van that had been acquired and imported by his friend, Mr McGuinness. The Forensic Casebook found in his home is consistent with his being forensically aware but again is not a weighty factor in the combination relied upon in this case.

Finally there is the vexed question of Mr Harte's call data and location records. We have left these until last because as we analysed the evidence it became apparent to us that they're of little or no decisive effect in the light of the emergence of the circumstances in the sequence set out above. If these records did not exist, our conclusion would be unchanged as there is ample evidence to convict Mr Harte without them. It is fair to say that the data fully support the conclusion that Mr Harte was involved and provide additional detail to the picture but the records in this case do not make the difference between being satisfied beyond reasonable doubt and not being so satisfied, because they do not establish any essential fact not already established directly or by inference from the other circumstantial evidence. The records certainly support and show a pattern of contact with Mr McGuinness and operation of his number at various locations supportive of the other evidence implicating Mr Harte in these crimes. For example, we are satisfied that Mr Harte was in the area of the crimes, both on the 16th and the 17th of September, on the basis of the CCTV evidence relating to the apartment complex, the Kangoo and the toll tag found in his possession, which originated from the black Audi, which was never seen again after the abduction and as confirmed by his failure to provide an innocent explanation for the section 19 matters. The fact that Mr Harte's phone operated through cells consistent with the movements of the Kangoo on the 16th of September tells us that he was in those areas at that time. This fact has already been established by other evidence. The fact that Mr Harte's number contacted Mr McGuinness in the course of this journey is neither surprising nor is it decisive, as the purpose of this journey is already clear from the full context of the CCTV footage and the similarity of the journey taken on the following day.

The same observation applies to the call data times and locations pertaining to the 17th of September. One interested additional fact that emerges is that Mr Harte's phone was in the Drumcoghill area near Drumbrade between 15:12 and 15:18, which is about a half an hour after the Kangoo passed through Granard and about half an hour before the black Audi emerged again at Ballinagh. This confirms and refines the previous finding that the Audi was stored somewhere in this area. This is already known and is not a decisive fact. The fact that Mr Harte's number made the crucial call to Mr McGuinness at 19:52 first emerged from the records of Mr McGuinness and not by means of access to Mr Harte's data. The fact that he was in the area at the time also confirms with some more precision what is already known from other evidence as to where he was on that day. The fact that the call was made outside the Drumbrade yard may be inferred from [the victim]'s evidence that his main tormenter left for about 15 minutes before returning with the bleach. The location data accessed simply pinpoints the fact that it was made to the south of the Drumbrade yard rather than that general inference from [the victim]'s evidence that it must have been made somewhere near where he was when the requirement for bleach arose. This call data supplies additional but non-determinative information and the same observation applies to all of the call and location data set out in the relevant analyst evidence and charts.

The location evidence also supplies further evidence that Mr Harte's phone happened to operate at times and places consistent with movements of vehicles associated with these crimes. There are correlations between usage on the 19th of August and a return journey from Dublin to the Ballyconnell area from about 8 pm to half past midnight and to movements of the BMW stolen in Dublin earlier that afternoon and later used in the crime. There are similar correlations available in relation to the movements of the BMW with the false plates of Derrylin on the 12th of September. None of these are fundamental to our decision to convict, which is principally based on the CCTV from the 16th and the 17th of September, the toll tag, the connections of Mr Harte with the Kangoo and Audi, both acquired by his friend Mr McGuinness and visibly used by Mr Harte at places and times connect[ed] with these crimes.

This case illustrates that call data records are often not decisive in themselves and that they require a context for raw data to be properly understood and interpreted. It also indicates the fallacy of the broad assertion that retention of or access to such records allows the drawing of precise deductions about the private life of the data subject. Much more than raw data is usually required to draw exact inferences. In this case, the criminal complicity of Mr Harte is sufficiently provide by other circumstantial and contextual evidence. Like the statutory inference evidence, the main function of the call data in this case is to provide a useful further check on the conclusions reached on the balance of the circumstantial evidence. The data are consistent with and supportive of that

conclusion and add an additional degree of certainty and detail to a conclusion already established beyond reasonable doubt. It therefore follows that we reject the closing submissions made on behalf of the accused in this case. We do not see any significance in the fact that the Kangoo was not fitted with false plates. It had no connection with this jurisdiction which would usefully be concealed by the fitting of false plates, which in themselves are an identifying feature also recorded by ANPR cameras as demonstrated by the evidence in this case. What made this vehicle instantly recognisable was the lightning bolt logos on the side. The retention of the original plates does not affect our finding that this vehicle was imported by Mr McGuinness into Ireland on the 27th of August and plainly used as a support vehicle in his criminal enterprise a few weeks later. The fact that he might also have decided to fit false plates does not make this an innocent vehicle. The lack of previous connection of this van with Ireland and the recency of the importation probably made such subterfuge unnecessary. There is no evidence that Mr McGuinness or anyone else ever intended to register the Kangoo in this jurisdiction. Without the minute investigation to which it was subjected, it would have made one of the large number of English-registered vehicles present in this country which experience suggests are not as easily traceable or attributable as those of Irish registry. The Kangoo was undoubtedly purchased with a specific purpose of mind and was on the point of being disposed of once that purpose had been served. The fact that criminals sometimes make errors in covering their tracks does not alter our construction of the activities of this van. Mr Harte had an opportunity to provide an innocent explanation of association with this van on the CCTV footage from the 16th and the 17th of December and elected to make no comment.

The route by which the toll tag came from the Audi to Mr Harte's home has never been fully explained. Mr Harte said that he took it out of the [Kangoo] van along with other items and papers. The van was at his apartment and he was asked by a person that he would not name to clear it out because it was being sold. However, he could not remember when this was done, except that it was after his visit to Manchester in September. He said that the van was not involved in the crimes concerning [the victim] when he was in it. The possible truth of this less-than-detailed account must be seen in the context that Mr Harte was heavily involved with the van for many hours on both the 16th and the 17th of September. The tag may well have travelled to Dublin in this Kangoo but it also had to get from the Audi to the Kangoo at some previous stage. This clearly links the two vehicles in a way that supports the identification of the vehicles depicted in the CCTV. The Audi was never seen again after the night of the abduction, so it is reasonable to assume that it was taken from the Audi and put in the Kangoo at some time between the importation of the van in late August and the night of the abduction.

Mr Harte himself seems to have correctly identified the gap between the tag being in the Audi and being in the Kangoo as something that needed to be addressed, because Mr O'Higgins put forward on his behalf a range of entirely speculative hypotheses involving Mr McGuinness and/or Mr Harte and/or Mr O'Brien innocently removing the tag from the Audi and transferring it to the Kangoo from where it was later innocently removed by Mr Harte. The difficulty about these propositions is that they were never offered by Mr Harte as part of his earlier version of events. Given the common involvement of Mr McGuinness and the acquisition of these vehicles, innocent involvement with them would be a very unfortunate coincidence indeed. Just as with the Kangoo, there is a very limited range of possibilities for innocent association with this Audi after it was acquired by Mr McGuinness a few weeks earlier. The suggestion as to when Mr O'Brien might legitimately have come into contact with 01C26963 was not explored further by Mr O'Higgins. The only opportunity that we are aware of was on his trip to Cavan with Mr Harte on the night of the 16th of September. We are not aware of any other occasion when Mr O'Brien might have been in innocent proximity to this car in order to permit him to remove the toll tag and put it in the Kangoo where it was later found by Mr Harte. All of the other circumstances disclosed by the evidence removed the room for finding that these are reasonable possibilities.

Moreover, it must be borne in mind that we are satisfied that this Kangoo had [the victim]'s blood deposited in it, not by the Gardaí or some unidentified malevolent passerby when the van was parked in central Dublin but because his blood had been transferred into the back of the van by secondary contact with the culprit who was in the back of it in the immediate aftermath of the crime, during which this van was clearly back in use in the general area. As already noted, the room for innocent association with this van is very limited indeed and Mr Harte would have to have been shockingly unlikely to have innocently prepared the van for sale and removed a toll tag in circumstances where both the van and the car associated with the toll tag had previously been used to commit serious crimes. Based on the evidence, the most likely route for the tag from the Audi was during the hour after it was last seen with the Kangoo on the night of the 16th of September. At that point it was stored for the night somewhere in the area around Ballinagh. On the basis that a decision had probably been made by that stage to proceed with the abduction by using the Audi on the next day, that was probably an opportune time and place to clear the Audi of anything that might be incriminating. Unfortunately for Mr Harte, when he came to clean the Kangoo he made the fatal error of failing to discard the tag. The finding of the tag in his home was not an unfortunate coincidence. It is at one with all of the other matters pointing to Mr Harte's involvement in this matter. This is not a critical or crucial finding of fact, it is simply a response to the closing argument put forward on behalf of Mr Harte.

Much emphasis was placed towards the end of the trial on the possibility that the Kangoo was also seen in Killydoon at 20:55. The additional footage played of this event is not very clear but the van in question appears to be very similar to the Kangoo. Accepting that it was at least reasonably possible that the van in this clip is in fact the Kangoo, we do not see how this has any effect on the central hypotheses of the prosecution case. The Kangoo was clearly in the area after it travelled there that afternoon and one would have expected it to be back in motion at around the time that the culprits needed to leave the area, given that one of the functions of the van was to transport the participants from place to place. [The victim] was deposited nearby at around 20:43. The removal of the Audi and the Transit had to be arranged [and] the participants who were leaving the area be returned to the Kangoo. The Transit was last seen at Corlismore Hardware at 20:52. The Kangoo did not finally head south from Killydoon until 21:09. It would not be at all surprising if the Kangoo had passed through Killydoon for some reason at 20:52 before passing through again for the final time 14 minutes later.

The fact that the Transit was in motion at the same time as the Kangoo does not break up the prosecution narrative, as was suggested. On the contrary, it simply confirms that the number of vehicles in use that evening and the fact that two of the[m] were never located afterwards suggests that there were more people at work in this area than the three who confronted [the victim] directly. That in fact is part of the prosecution case. Not every detail of this crime can be known, is known or will be known or is of determinative importance. The same observation applies to the untraced call overheard by [the victim] from the back of the Audi. We have already dealt with the guilt-byassociation argument and the point that others may have been involved in these crimes.

This does not alter the focus on whether there is sufficient evidence to convict those currently accused before this court. We do not propose to say anything more about the closing argument based on call data records, save to say it would not have been accepted even if the issue was of any importance. As we see in this case and as explained here in some detail, the call data records are or minor relevance to proof of Mr Harte's complicity in these crimes.

Mr O'Higgins then questioned the basis of the finding that Mr Harte travelled with the Kangoo on the 16th and the 17th of September. The answer of course lies in the CCTV footage of both days. We do not believe that there is any basis to think that Mr Harte somehow mysteriously ceased to be involved in the van on both days after he demonstrably drove it away from his home in the direction of Cavan. He was certainly in the van at the filling station at Virginia on the night of the 16th. He returned to his home on each night at times consistent with the return of the van to Dublin from the Cavan area. We would go so far to say that the footage of the 16th alone would be sufficient to involve Mr Harte in these crimes. In fact, the evidence of his involvement extends further into the next day and beyond. He could have offered an innocent explanation when asked to account for his possession of the Kangoo under section 18 or the three specified associations under section 19. He did not do so. Mr Harte was involved with the van, in fact, right up until the 23rd of October when the CCTV recorded him apparently directing and gesturing to Mr O'Brien as the van was about to be disposed of on that day. To borrow another phrase used by Mr O'Higgins, there were acts of unbelievable sloppiness that permitted detection of some of the culprits in this case. We are satisfied that the circumstantial evidence set out above brings us well beyond the obvious suspicion that Mr Harte was involved to inexorable proof of guilt beyond reasonable doubt. In those circumstances we will order the registrar to record guilty verdicts on counts 1 and 2 in the indictment.”

46. The trial court’s findings in relation to Mr. O'Brien were set out as follows:—

“Verdict in the case of Alan O'Brien. The prosecution case against Mr O'Brien depends on the assessment and construction of a narrower set of circumstances. It relies principally on the same CCTV evidence from the 16th and the 17th of September. In our view the CCTV evidence of his actions on the 16th of September would have been enough to convict him in the light of our conclusion that the Kangoo was driven from Dublin to Cavan by Mr Harte on that day on a rehearsal or preparatory exercise for the commission of the crimes on the following day. This protracted journey involved travelling to relevant [locations] at broadly similar times which mirrored closely the course of relevant events on the following day. This exercise also involved the moving and storage of the Audi car that was at the heart of the commission of these crimes before the Kangoo returned to Dublin that night. Mr O'Brien left Dublin in the Kangoo with Mr Harte that afternoon, having apparently waited for him on the corner where Mr Harte got out of the red Volkswagen after his visit to Store Street Garda Station. The meeting took place at 15:09 and it appears from the CCTV that it was not a chance encounter.

Mr O'Brien wore a black, long-sleeved Under Armour […] top, the logo being clearly visible at the back of the neck on the relevant footage. He walked with Mr Harte and waited outside Mr Harte's apartment while Mr Harte went in and returned with a grey top. They crossed the road at 15:15 before the Kangoo emerged into view at 15:16 with the driver wearing a grey top and the passenger wearing a dark one. We have already found as a fact that these persons were Mr Harte and Mr O'Brien respectively. Mr O'Brien was clearly seen again with the van and Mr Harte at the Virginia Applegreen at 23:06 that evening. There is no reason to think that Mr O'Brien had parted company from Mr Harte and/or the Kangoo at any time during the proceeding eight hours and had ended up back in the van at the Applegreen late at night and miles from home by some bizarre coincidence. He was there because he had been a participant in the preparatory exercise arranged for that day, including the movement of vehicles in the Cavan area shortly before the Applegreen incident. We do not think that Mr O'Brien would have arranged to meet Mr Harte and spend nine hours travelling to and from Cavan and around remote locations in that general area for no apparent reason without knowing or inquiring as to the purpose of such apparently random travels. We do not think that Mr McGuinness or Mr Harte would have had anybody travel on this mission unless they were an integral part of and essential to the execution of the enterprise. There is no view of Mr O'Brien's actions on the 16th of September that excludes the obvious inference that he knowingly participated in significant preparations for the events that took place in that same area approximately 24 hours later.

A conclusion of guilt is therefore possible on the basis only of these circumstances but that would not do full justice to the extent of Mr O'Brien's involvement in this matter, which we are satisfied included actual participation in the events described by [the victim] on the next day. Mr O'Brien's actions on the 16th are a relevant matter to consider in assessing the evidence relating to the next day, the interpretation of which is hotly disputed by Mr O'Brien. The CCTV footage of that early afternoon shows Mr O'Brien returning again to the area outside Mr Harte's apartment complex. Mr O'Brien met Mr Redmond and Mr Donnery on the street outside at 12:54. As previously noted, Mr O'Brien was wearing the same or a similar dark or black longsleeved Under Armour top as on the preceding day. Mr O'Brien's female companion continued straight on without missing a step. Mr O'Brien slowed to the right, reversed sharply and joined the other two men walking back towards the car park and Mr Harte's residence. The actions recorded by the CCTV images strongly suggest that this was not a chance meeting. At 13:02 the Kangoo left the car park with a driver in a white top and a passenger in a dark top. We are satisfied and have already found as a fact that these persons were Mr Harte and Mr O'Brien respectively.

It is clear, therefore, that we do not accept the suggestion that was put forward towards the end of the trial that the passenger was not Mr O'Brien, on the basis that there was a reasonable possibility that instead of getting into the van with Mr Harte shortly after he had walked with Mr Redmond and Mr Donnery in the direction of where the Kangoo had been parked the night before and from where it had emerged almost immediately after Mr Harte had returned from a four-minute visit to his apartment at 13:00, that instead of that he had scaled an adjacent wall of 8 or 9 feet in height and exited the area not in the van but through Teeling Way next door. This may be a possibility but for it to be acted upon it must be viewed by us as a reasonable possibility that arises on the evidence, which includes Mr O'Brien stating at [interview], under ordinary caution, that he did not leave Dublin on that date. Having analysed the matter, we do not accept that it arises as a reasonable possibility on the evidence in this case. Firstly, if Mr O'Brien had some unspecified alternative engagement in Dublin that afternoon, it is then unclear why he went out of his way after meeting Mr Redmond and Mr Donnery in the direction of the car park and Mr Harte's home before taking his leave by [climbing] up the wall. If his meeting with Mr [Harte] and Mr Donnery … was a simple, casual meeting on the street outside, why did he divert for no reason into a cul-de-sac which required him to climb over a high wall to leave in the opposite direction? Why did he not continue about his business in the direction that would have taken him out of the complex in a more conventional way? The conventional means of leaving the areas was illustrated by Mr Donnery when he left the complex at 13:24 at about the same time that the Kangoo passed the ANPR camera on the M50.

Thirdly, if this is so, who then was the man in the dark top who was in the passenger seat of the Kangoo at 13:02, if not Mr O'Brien? There is no sign on the CCTV of any candidate other than Mr O'Brien, because there was coverage of the area at the time of the departure of the Kangoo. The only other person who was there was Mr Redmond. Mr Redmond's position in this trial is that he did not travel in the Kangoo on the 17th of September either. We are satisfied that Mr Harte did not leave on his own and then pick up a passenger before the van was pictured on the M50 a short time later. This is because he already had one when he left his home. The passenger certainly was not Mr Donnery, the other member of the trio, who had walked towards the car park. He went into the apartment building and emerged later on.

We've examined the CCTV extract from camera number 14 of the apartment system very closely. We are satisfied that this shows that Mr O'Brien and Mr Redmond remained outside the block when Mr Donnery went inside. The footage is grainy and indistinct when magnified but the process was assisted by the bulky white plastic bag that Mr O'Brien carried with him on that occasion. There was certainly continued movement in that area with an indistinct white object for the 30 seconds after Mr Donnery went inside the building at CCTV system time 19:58:31, until the clip ended at system [time] 19:59:37. Mr Harte left the front door at system time 20:02:41. The clip from camera 14, starting at 20:01:55, still shows movement outside that door. In this clip there is an indistinct white object in the area outside the door. At 20:02:41 the door opened and there is further movement behind the person who exited, which was clearly Mr Harte as recorded by camera number 10 in the lobby. The movement was in the direction of the parked cars. The white object does not seem to be in shot after this movement. The Kangoo drove under camera number 14 at system time 20:04:19.

Fourthly, the possibility that Mr O'Brien left the area by scaling a high wall was never mentioned by him until late in this trial. The relevance of this is that he was warned under section 19A of the 1984 Act of the possibility of adverse inferences being drawn from a failure to mention a fact later on. We are satisfied that the situation presented in this case was exactly what was contemplated by the legislation. Mr O'Brien had the option of elaborating on his bare statement that he remained in Dublin, or he could have mentioned the fact now relied upon at the most appropriate time, which was when section 19A was invoked. The proposed fact was presumably fresh in his mind when he was asked questions about these events two months later. The exact circumstances that caused him to take this unusual step have never been explained. Where he says he was in Dublin on that afternoon has never been the subject of elaboration by him. Much more detail will be required before we would be prepared to entertain this rather bizarre suggestion of wall climbing as a reasonable possibility. The bare unsworn assertion made in the interview under caution comes nowhere close to displacing the reason[able] and sensible explanation that should be drawn from the CCTV evidence, namely that Mr O'Brien acted as he did on the CCTV footage because he met Mr Harte and Mr Redmond to leave in the van with them in precisely the same manner as he patently met and travelled with Mr Harte on the previous day.

Fifthly, we note that the video clip prepared to illustrate somebody climbing this wall was prepared in late July of this year, the day before it was produced in evidence. We believe that it is also correct to note that the person performing in the video was not similar[ly] equipped with the full plastic carrier bag as Mr O'Brien was on the day in question. This bag would have somewhat complicated the task in question. Sixthly, and most significantly, when this assertion [w]as first aired on the 21st of July this year, Garda Jones checked CCTV footage from the adjacent Teeling Way premises. He reviewed footage from a camera covering the archway by which this property is accessed. Garda Jones established that this was the sole means of access to and egress from Teeling Way. He viewed footage recorded between 12:55 and 16:14 on the day in question and did not see anyone matching the appearance of the males from the footage in the existing montage. It was established in cross-examination that cars left Teeling Way during the period of review. This simply adds a further speculative layer to shore up an already untenable proposition. Leaving in a car from the far side of the wall that he patently did not arrive in was a further fact not mentioned by him at the appropriate time and this further assertion also runs into the same difficulty as the original proposition. It too was a fact that should have been mentioned at the appropriate time. Leaving in a car is now put forward only because that is the only way that Mr O'Brien could address the rebuttal evidence proffered by Garda Jones.

Having considered the matter thus, we are satisfied there is no reasonable possibility that, in the circumstances depicted in the CCTV coverage, Mr O'Brien had to climb up and over the wall for some unexplained reason in order to leave the area. The only reason that he now asserts, not in evidence but through his counsel, that he'd climbed over the wall is because it is the only possible route away from the building that is neither in the Kangoo nor directly covered by CCTV. It shows that Mr O'Brien has correctly grasped one of the fundamental points of the prosecution case, that to be seen driving away from Dublin in the Kangoo with Mr Harte at 1 pm on the 17th of September is a gateway to very damaging and unwelcome inferences about the 11 hours that followed before Mr Harte was seen to return to his home that night. We are satisfied to draw an inference from his failure to mention these facts following the invocation of section 19A that they are a fabrication, probably of recent origin, cobbled together in an attempt to undermine the prosecution case presented at trial. There is absolutely no basis for finding these facts as a reasonable possibility on the evidence. The equally untenable and indeed totally inconsistent final proposition made in closing, the effect that Mr O'Brien might, if he had left in the van after all, have departed from the van between central Dublin and the picture on the M50 needs no further comment.

The Kangoo also had a front-seat passenger when it passed the M50 tolling point at 13:23. The ANPR camera showed that the passenger wore a dark tee-shirt with short sleeve with an apparent Under Armour logo. We do not need evidence to know that this is a popular and commonly observed brand of leisurewear. The fact that it is a different type of Under Armour garment to the top worn outside the van 20 minutes earlier is a point of little or no significance. As Mr Guerin pointed out, it will be possible, if indeed not highly likely, that someone settling into a van for a long drive on a September day might well remove an outer layer of clothing for their journey. The significance is that the garment in the van was also Under Armour and [the victim]'s evidence establishes that one of his assailants wore a top with this logo. This is not a determinative point, it is simply another circumstance consistent with the finding that Mr O'Brien travelled to

Cavan with the Kangoo and did not climb over the wall in Dublin. Mr O'Brien was wearing that brand of clothing on both days in September. He is no stranger to the brand.

[The victim] recounted that one of the men who held him in the boot of the Audi through the back seat wore a black top with a white Under Armour logo down towards the waist.

It would not be realistic to expect absolute precision in observation in the circumstances in which [the victim] then was. He did identify this man as the driver of the white car that arrived at the time of the initial abduction. In an initial struggle [the victim] got a brief sight of this man's hair, which he recalled as a light brown or blond. Neither brief description undermines the basic circumstance relied upon by the prosecution. They are both consistent with that proposition, as is the overall likelihood that the two operatives who assisted Mr Harte in his activities were the two men who walked back to outside his residence with Mr Donnery to meet him immediately before he drove away in the Kangoo to take a leading role in the commission of these crimes. The descriptions would not in themselves identify Mr O'Brien. That fact arises by inference from the combination of Mr O'Brien's visible conduct on the CCTV footage from earlier on the 17th of September and the footage from the day before. This illustrates how circumstantial evidence operates. There is no other sensible or reasonable interpretation open on the evidence.

A final consistent factor are the activities of Mr O'Brien and his continued association with the Kangoo on the 23rd of October, as already set out above. We are satisfied that the circumstantial evidence set out is sufficient to constitute inevitable proof of Mr O'Brien's guilt beyond reasonable doubt. In the circumstances we will order the registrar to record guilty verdicts on counts 3 and 4 on the indictment.”

47. The trial court’s findings in relation to Mr. Redmond were as follows:—

“Verdict in the case of Darren Redmond. The prosecution case against Mr Redmond depends on three main strands of circumstantial evidence. Firstly, his activities as depicted in the CCTV footage from the 17th of September. Secondly, the finding of a matching DNA profile on the swabs from the bars installed behind the driver's seat of the Kangoo, together with the finding of a DNA profile matching that of [the victim] arising out of Dr Connolly's luminol examination of the inside of the cargo door of the same van. Thirdly, the attribution of the use of mobile number 0874141567 to Mr Redmond, together with call and location data relating to that number obtained under a search warrant directed to the service provider. Much of the evidence concerning these strands has been set out at some length previously. We can state our

conclusion concisely. We are satisfied that the CCTV evidence of Mr Redmond's movements on the day of these crimes is sufficient in itself to implicate him in this matter. He was first seen leaving with Mr Harte from Mr Harte's residence on camera number

10 at 12:24. Mr Harte's phone records show several attempts at contacts before and actual contact with the number attributed to Mr Redmond earlier that morning. Camera number 7 outside recorded the two men going towards the area where the Kangoo was parked outside, movement there for about a minute, followed by them leaving the complex on foot at 12:25. They returned through the lobby at 12:38, are recorded by camera number 10.

Mr Redmond was next recorded leaving the complex again at 12:51, this time in the company of Mr Donnery. They returned back in front of camera number 3 at 12:54, where the apparently arranged meeting with Mr O'Brien was recorded. Mr O'Brien and Mr Redmond then returned towards the entrance to the Harte residence with Mr Donnery. Significantly, camera number 10 recorded that Mr Donnery entered the lobby alone at 12:56. The CCTV of the short period before Mr Harte emerged from that building has already been described. There is no evidence or suggestion that Mr Redmond left that area by any means other than in the Kangoo driven by the man in whose company and residence he had been that morning. He was not seen leaving by the conventional route that Mr Donnery used a short time later or that he himself had used a short time before. The prosecution hypothesis that he left in the van was not contradicted by evidence, suggestion or submission. It must be said, to his credit, that Mr Redmond did not indulge in fantasies about jumping over an adjacent wall. Crucially, he was also recorded by camera number 10 returning across the entrance lobby with Mr Harte at 00:10 hours the next morning. Both men were dressed in the same clothes as they were recorded in nine hours earlier. This critical fact was not addressed at all in the closing of Mr Redmond's case. We are satisfied that no inference is available other than that he departed from and returned to the apartment block in tandem with Mr Harte.

It therefore follows that we are satisfied that Mr Redmond was carried away in the cargo area of the Kangoo because we are satisfied that Mr O'Brien was the passenger in the "Under Armour" t-shirt and Mr Harte was the driver in the white top. The finding of matching DNA on the bars behind the driver is significant in this regard. One of the purposes of those bars would appear to be support for a passenger located in the cargo area. Of course, the times and the means of which the matching DNA came into contact with the bars cannot be known with precision. The contact by which it was placed there was unlikely to have occurred before the van came to Ireland. What must be assessed in all such cases is the level of expectation of finding matching DNA where it is located. In this case there will be no realistic expectation of finding matching DNA unless Mr Redmond had been in the back of the van and came into direct contact with the bars. Dr Connolly established that the DNA was found within a bloodstain on the surface of the bars that was swabbed when the Kangoo was recovered and examined. We do not think that there is any sensible reason to believe that matching DNA was deposited on that surface by some means other than direct contact. Direct contact with this van at any time after it was brought into Ireland by Mr McGuinness would necessarily invite close and sceptical scrutiny, given the provenance and purpose of the importation of the Kangoo. Indeed, Mr Bowman was careful to avoid any suggestion that Mr Redmond was ever legitimately in direct contact with these bars.

The alternative hypothesis that he proposed for our consideration was based on a reasonable possibility that the matching DNA was there by reason of a secondary transfer mechanism. In that context Mr Bowman referred to the fact that there was evidence that the Kangoo was left unlocked near the accused's home. We have considered the suggested possibility and reject it as a reasonably possible inference from the evidence. Perhaps understandably, Mr Bowman did not elaborate on his suggestion or offer any example of a route by which a secondary transfer of DNA might have been effected. It seems to us that this hypothesis necessarily involves accepting that Mr Redmond deposited his DNA on some other person or object which was later brought into contact with the bars in the van while it was left unlocked and unattended close to Mr Redmond's home. Mr Redmond would have to have been unfortunate indeed if out of all of the possible surfaces available for secondly DNA transfer in the Dublin area, the matching DNA was transferred to the interior of the same van used by his acquaintance Mr Harte to drive up and down to Cavan on the 16th and the 17th of September. We consider that when this proposal is subjected to rational analysis it must be found to be manifestly untenable. The finding of matching DNA in the back of this van would hardly be expected at all unless Mr Redmond had been there himself at some stage, as is suggested by the CCTV evidence and there is no evidence or suggestion of any other occasion when he might have been innocently present in that van.

We are satisfied that the matching DNA profile obtained by swabbing in this case is a circumstance that strongly supports the interpretation of the CCTV evidence that puts Mr Redmond in the back of that Kangoo on the 17th of September. It is wholly consistent with the case that he left Dublin in the Kangoo by arrangement with Mr Harte to play some part in the crimes contemplated on that day. The circumstantial evidence now shows an unequivocal pattern consistent only with guilty involvement to some extent in this enterprise. We do not believe that it is necessary to dwell at length on the balance of the evidence in this case in the light of the strength and weight of the first two strands. It may well be that Mr Guerin is likely to be correct in his hypothesis that [the victim]'s blood was transferred to the interior door surface through the medium of Mr Redmond because Mr Redmond was recently in contact with [the victim]'s blood by reason of his active participation in these crimes and was the most likely occupant of the cargo compartment on the return journey to Dublin. There may be other viable theories as to how the blood was deposited there. It is not necessary to come to a conclusion in a definite way on this matter in order to find that Mr Redmond was involved in these crimes.

It is also not necessary to consider the telephone evidence at any great length in the light of the conclusion justified by the two main strands of evidence. As is usual, in this case that category of evidence is a useful check on the earlier conclusion and provides some further non-essential detail. We are satisfied by the various witnesses called by the prosecution that the number in question was in fact in regular use by Mr Redmond, both generally in 2019 and on the 17th of September in particular. Mr Harte's records show that his number was in contact with Mr Redmond's earlier that morning. Mr Harte called and texted [t]his number at 01:16, shortly after Mr Harte had returned from the Cavan area that evening. He then called Mr Redmond's number five times between 9.33 and

10.32 before Mr Redmond's number completed a call-back of 28 seconds' duration at

10.33 and called back again for 29 and 14 seconds at 11.07 and 12.13.

The two men were later present outside Mr Harte's home at 12.24. Given this meeting, we do not think that Mr Harte was trying to contact Mr Redmond's mother or that she was using Mr Redmond's number on that day. It is abundantly clear that Mr Redmond was. The call and location data relating to Mr Redmond's number establish further circumstances consistent with the primary strand set out above and firmly rules out any remaining possibility that the evidence can be explained by misfortune of coincidence. Mr Redmond's number was in constant contact with the Meteor network by way of ongoing data connections on the afternoon and evening of the abduction. The location of the cell sites from which these constant contacts were effected … provide a comprehensive track of where the user of the number was at those times on that day. The track is best summarised by the data used by Sarah Skedd to compile trial exhibit 96C. This shows that at the times when the Kangoo was travelling from Dublin on the afternoon of the abduction 0854141567 used cell sites between 13:17 and 14:40 precisely adjacent to areas on the route taken by the Kangoo.

Trial exhibit 97C shows that after the Kangoo was last recorded on CCTV at Granard at 14:45 the handset using 0854141567 was in the area between Drumcore and Ballinagh at 15:30. This area includes the Drumbrade yard. It was south west of the Slieve Glah Shannonside cell site consistently at 16:30, 17:30, 18:30 and 19:30. This is also the general area around Drumbrade. This means that either Mr Redmond remained there with his handset while the abduction took place some distance to the north west or he left the handset in the Kangoo in that area and retrieved it later because it then moved on to connect [to] cell sites at Ballinagh and Drumcore at 19:56 and 20:51. In fact, in his case the call and location data enables us to draw a limited inference in favour of Mr Redmond on the basis of the rule that an inference favourable to the accused should be drawn where that is reasonably possible on the evidence. Whilst it remains likely to some extent that he was in fact the third man on the journey taken by the Audi and was the third man described by [the victim], the location data also suggests that it is also reasonably possible that he performed some other function by remaining in the Drumbrade area awaiting the return of the kidnappers and [the victim]. Clearly, there were others involved in the area on that day who might also have been the third man who went to … Kinawley with Mr Harte and Mr O'Brien. Notably, [the victim]'s description of the third man was the least detailed of the three men that he encountered. The data does not undermine any other part of the prosecution hypothesis as to Mr Redmond's involvement. We can see no circumstances in which a third passenger in the Kangoo would endure an uncomfortable journey to and from Dublin and wait around areas of rural Cavan for many hours for no purpose.

Mr Harte's phone records suggest that he was looking for Mr Redmond with a degree of urgency before they met up on the morning of the crimes. The data remains consistent with Mr Redmond's presence in the area of the crime until some of the perpetrators left the area and returned to Dublin in the Kangoo. In particular, the data connection at 19:56 puts the handset in the area of the Drumbrade yard as the assault and the imprisonment were ongoing and the data connection at 20:51 puts it in the same general area where [the victim] had been deposited from the large van at around 20:43. Thereafter, trial exhibit 98C shows the handset moving from a connection at 20:15 to a cell site covering the Granard area to connection with a cell site in central Dublin at 23:04. Mr Redmond was seen again on CCTV outside Mr Harte's home at 00:08. The intermediate cell sites connected by 0854141567 were located in Westmeath, Meath and central Dublin, all consistent with the journey of the Kangoo back to Dublin through those counties.

A further minor circumstance consistent with the prosecution case is that there was direct phone contact between the numbers attributed to Mr Redmond and Mr McGuinness on the 12th of September, a day where there was relevant vehicular activity in the Kinawley area. This contact is apparent from Mr McGuiness's records and took place around 3 pm, incidentally, shortly before Mr McGuinness and Mr O'Reilly were in contact on that afternoon. We also note that Mr Harte's number was in contact with Mr Redmond's number between 12:12 and 13:54 on the 16th before Mr Harte left Dublin for Cavan as well as after his return at 01:16 on the 17th. We are in no doubt that Mr Redmond travelled to and from Dublin to the Cavan area with Mr Harte and Mr O'Brien in the Kangoo on the 17th of September and in doing so could not possibly have been ignorant of the purpose of the journey or being taken along for no purpose connected with this criminal enterprise. We are satisfied that in doing so he at least played an active part in events in and around the Drumbrade yard that evening. On … that basis, we are satisfied that the circumstantial evidence set out is sufficient to constitute inexorable proof of Mr Redmond's guilt beyond reasonable doubt. In those circumstances, we will order the registrar to record guilty verdicts on counts 5 and 6 in the indictment.”

Grounds of Appeal

48. Each appellant filed extensive Grounds of Appeal which overlap to some extent. In summary, the legal issues which arise for determination in this appeal are:

a) The requirement for a conviction to be grounded on evidence sworn during the currency of the trial proper;

b) Admissibility of mobile phone call data records;

c) Access to Phone Records on foot of search warrants issued pursuant to s. 10 of the 1997 Act;

d) Admissibility of CCTV and ANPR evidence;

e) Admissibility of DNA evidence from the Renault Kangoo van; Findings of fact relating to the DNA evidence

f) Arrest of Mr. Redmond;

g) The verdict.

The Requirement for a Conviction to be Grounded on Evidence Sworn During the Trial Proper. Background

49. This relates to grounds 47, 31 and 29 of the grounds of Messrs. Harte, O’Brien and Redmond respectively.

50. Objection was taken, inter alia, to the admissibility of certain strands of evidence from “trials within trials”, or voir dires. Witnesses took an oath or affirmed, and the wording used was specific to a voir dire. Ultimately, the evidence was deemed admissible and the trial proceeded. However, the respondent did not recall the witnesses who had given evidence during the voir dire. The appellants took issue with this course and highlighted a previous practice in the Special Criminal Court, which was to recall the relevant witnesses and administer the oath or affirmation applicable to the evidence in a trial, at which stage the evidence may be adopted into the trial and/or the witness may be cross examined on issues which did not arise during the voir dire.

51. In a trial with a jury, once evidence is deemed admissible in the absence of the jury, the same witnesses would be recalled to give evidence in the presence of the jury, where they would again swear an oath, which is of slightly different wording to the oath given during voir dire.

52. A trial before the Special Criminal Court is different as the judges act as finders of both fact and law. This led to the practice developing of witnesses in the Special Criminal Court being recalled and the trial proceeding as outlined above in paragraph 50. However, now the witnesses are not recalled, and the evidence is adopted into the trial, usually by agreement.

53. Counsel for the appellants submitted at trial that the law required that evidence be heard under oath and argued that the slightly different form of wording used for the voir dire oath meant that this was not done correctly. Counsel argued that evidence adduced for the purpose of a voir dire could not simply be incorporated into the trial without some formal process, notwithstanding the fact that full repetition would be unnecessary and impractical.

54. Counsel placed reliance on People (DPP) v McGowan [1979] IR 45 and People (DPP) v Mackin [2011] 4 IR 506.

55. In McGowan, defence counsel refused to consent to the direct incorporation of evidence given as part of a voir dire into the trial on the basis of s. 41(4) of the Offences Against the State Act 1939, requiring the procedures of the Central Criminal Court to be followed “so far as practicable” in the Special Criminal Court. On the suggestion of the trial court in that case, the witnesses were recalled by the prosecution, and their evidence was re-affirmed on oath as part of the trial proper, without full repetition, and with an opportunity for defence counsel to cross-examine. This procedure was approved by the Court of Criminal Appeal as complying with the requirements of s. 41(4).

56. In Mackin, a conviction was quashed by the Court of Criminal Appeal on the basis that the transcript of evidence taken on commission in Northern Ireland, pursuant to the Criminal Law Jurisdiction Act, 1976, was not proved at the trial. Counsel in this case argued that Makin is demonstrative of the need for precision, because, notwithstanding the fact that the evidence was sworn before the Special Criminal Court judges sitting in the High Court in Belfast, it was found by the Court of Criminal Appeal that the evidence had not been proven and was therefore inadmissible.

57. Counsel for the respondent replied, submitting that it was open to the defence to consent to the adoption of the evidence being incorporated into the trial itself without a second oath being sworn. The prosecution also pointed out the practical difficulties that would ensue if witnesses had to be recalled for the purpose of re-swearing their oath on a different day.

58. The respondent also submitted that the procedure followed in McGowan, while approved by the appellate court in that case, was not necessarily prescriptive. Counsel sought to distinguish Mackin on the basis that in that case, the evidence had not been heard in the trial at all. The respondent submitted that, as a result, it was open to the court to simply rule that it was incorporating the voir dire evidence into the trial itself. The respondent placed reliance upon a passage of Harrison’s The Special Criminal Court: Practice and Procedure (1st ed. 2019), arguing that it was supportive of her position that McGowan was an exceptional or unusual case, and that generally, evidence given during voir dire will simply be incorporated into the trial.

59. The trial court ruled as follows:—

“The idea that in the year of 2021 that the practicalities of trial in this court require a procession of puzzled witnesses to come back to give an oath that differs by one word to what they previously gave and then to depart from this court having confirmed, at great cost and expense and inconvenience to themselves, that what they said on the first occasion at equal cost, expense and inconvenience was the same is simply something that falls outside any definition of the word "practicable" or even perhaps sane but that kind of thing is not required. We're quite satisfied that this court has the power under its practice and procedures, and diverging from the Central Criminal Court because of those practicalities, to order, without consent, that the matter be brought into the case.”

Appellant’s Submissions

60. The appellant submitted that the trial judges erred in ruling that there was no requirement that a separate oath or affirmation be administered. The appellant submitted that the finding by the trial court that the only difference in the wording is “one word” elides the fact that the evidence has not been heard or received in the trial proper.

61. The appellant submitted that, notwithstanding the fact that complying with this formality may be “tedious”, it is a “red line issue” that evidence must be sworn in the trial proper which is “not capable of being fudged”, and it is not within the discretion of the trial court to curtail this requirement.

62. The appellant placed reliance on the subsequent trial of People (DPP) v Lisa Smith (January 2022) where the same judge presided over the Special Criminal Court as in this case. In that trial, it is said that the court required that each witness giving evidence in voir dire swear two oaths, one for the voir dire and one for the trial. The appellant submitted that this indicates a lack of confidence in the correctness in this earlier ruling.

Respondent’s Submissions

63. The respondent submitted that the purpose of the oath is to ensure the gravity of the giving of evidence is understood by a witness. The practice of the slightly different wording in the oaths might be more suited to a jury trial, but the important portion of the oath remains the same as between the two slightly different wordings—that the evidence given is the truth.

64. The respondent submitted that the appellants have not indicated or demonstrated any prejudice, and the issue raised is one of “semantics”.

65. It was argued that whilst the Mr. Harte relies on the decision in Mackin, the issue raised in that case was a discrete ground concerning statutory procedure, where the evidence was taken on commission pursuant to a statutory mechanism prescribing the manner in which that evidence became evidence at trial, which was by way of a certificate, and where that was not done. Consequently, the evidence on commission was not put before the trial court in the statutory prescribed manner, and so it was not evidence in the trial.

Grounds 47, 31 and 29

66. Ground 47 of Mr. Harte’s grounds reads as follows:—

“The court erred in reaching it’s verdict in:

(a) Taking into account evidence given during a number of voir dires that had not been proved in the trial;

(b) Admitting into evidence in the trial, and or, taking into account testimony that was not the subject of an oath in the trial.”

67. Grounds 31 and 29, relating to Messrs. Redmond and O’Brien respectively, are identical and read as follows:—

“The Special Criminal Court erred in refusing to find that it did not have jurisdiction to adopt into the hearing of the trial the evidence given in the voir dire.”

The Oath

68. A witness, before giving evidence at trial will take an oath in the following terms:—

“I swear by Almighty God (I do solemnly and sincerely and truly declare and affirm)

that my evidence to the court and jury, in this trial / issue / case shall be the truth, the whole truth and nothing but the truth.“

69. As a general rule, evidence must be given by way of oath or affirmation and the giving of evidence in this manner is governed by the Oaths Acts 1888 and 1909. Section 1 of the Oaths Act 1838 remains in force, as amended by the Criminal Justice (Perjury and Related Offences) Act 2021.

70. The issue in the present case is a procedural one, but it is said that it is nonetheless a very important one. Reliance is placed on several decisions to underline the importance of adhering to correct procedures, to include People (DPP) v McGarrigle [1995] WJSC-SC 4012, [1987] 6 JIC 2201.

71. It is contended that the previous practice of recalling the witnesses and the administration of the oath or affirmation relevant to the trial ought to have been followed. Consequently, it is said that the evidence sworn for the purpose of the voir dire is not evidence in the trial, that there is no discretion vested in the Special Criminal Court to receive that evidence. It is argued with force that this is basic and fundamental, and the departure from the practice of recalling witnesses who have given evidence in the voir dire for the purpose of giving evidence in the trial proper is not within the discretion of the court. This is an issue, it is said, which is one of principle, and a most important point of principle.

72. It is the position that, generally speaking, oral evidence will not be admissible unless the person has sworn to tell the truth or affirmed that they will tell the truth. The oath, or affirmation, is considered an important safeguard to ensure the reliability of the evidence and to impress upon witnesses the gravity and the solemnity of giving evidence. The nature of the oath or affirmation underlines the importance of telling the truth.

73. In her text, Evidence in Criminal Trials (2nd ed. 2020), Dr. Heffernan says at para. 2.26:—

“Although the efficacy of the oath or affirmation as a guarantee of truthful testimony in contemporary society is debatable, its importance as a legal requirement remains.

In Mapp v Gilhooley ([1991] 2 IR 253), Finlay CJ stated:

‘It is a fundamental principle of the common law that for the purpose of trials in either criminal or civil cases viva voce evidence must be given on oath or affirmation. …The broad purpose of the rule is to ensure as far as possible that such viva voce evidence shall be true by the provision of a moral or religious and legal sanction against deliberate untruth’”

74. As can be seen therefrom, the purpose of the taking of the oath or affirmation is to ensure, as far as is possible, that a witness tells the truth. The argument that the difference in wording between the oath/affirmation in a trial within a trial, and that of the oath/affirmation in the trial renders the entire process in effect void, cannot withstand scrutiny.

75. We agree with the respondent that Mackin is not authority for the requirement of taking the acceptable oath. The impugned evidence was taken on commission in Northern Ireland and pursuant to a statutory mechanism whereby evidence became evidence at trial through a certificate. This was not done, and so the evidence was not adduced at trial. Hardiman J said, with reference to the taking of evidence on commission:—

“There is certainly scope, statutory scope for the taking of evidence elsewhere. But such evidence must be, and indeed as O’Higgins C.J. precisely said:-

‘It must be taken for presentation to the court to decide in the first place on its admissibility.’

Here, it was not presented to the court in public session at all.”

76. Hardiman J emphasised the unitary nature of a criminal trial in Mackin and, in the present case the trial proceeded before the Special Criminal Court as a unitary process. The judges heard and saw each of the witnesses giving their evidence having sworn to tell the truth, the whole truth, and nothing but the truth.

77. The practice which developed, following McGowan, of witnesses who had given evidence in a trial within a trial being recalled and re-sworn was undoubtedly a practice with roots in the procedure of courts where accused persons are tried with a jury. Juries are excluded from the ordinary court while a trial within a trial is being heard, for the obvious reason that, should that evidence be deemed inadmissible, the jury will not have heard the prejudicial evidence and so the trial continues without that evidence. There is a different wording used for the oath/affirmation for a voir dire and for the trial. This, however, does not impact on the truthfulness of the evidence. We doubt very much that if the wording of the oath/affirmation taken by a witness in a voir dire was that of the oath/affirmation normally taken in a trial, that this would impact in any way on the admissibility of the evidence. It is, after all, evidence in the unitary trial.

78. Insofar as s. 41(4) of the Offences Against the State Act, 1939, is concerned, the section only requires that the Special Criminal Court follow the procedure of the Central Criminal

Court as far as practicable. As said by Hederman J in People (DPP) v McMahon [1983] WJSC- CC 253, [1984] ILRM 461:

“Clearly it is impracticable – indeed – impossible – to import a rule, however valuable, governing the conduct of jury trial into a trial by a non-jury court. This analogy is not valid. In the present case the Special Criminal Court was made up of three experienced judges who clearly recognised the highly prejudicial nature of the evidence and they asserted in open court that they were capable of excluding that evidence from their minds. Furthermore, this Court cannot ignore the acceptance by counsel for the applicant at the trial that the judges hearing the case were capable of so doing. As already indicated, this Court is satisfied that the conduct of the trial was in accordance with the provisions of s. 41(4) of the Offences Against the State Act, 1939.”

79. The McMahon case concerned the Special Criminal Court proceeding with the trial where the judges had heard the inadmissible evidence and where it was argued that this amounted to a breach of s. 41 in that, if before the Central Criminal Court, the jury would have been discharged. The decision is apposite in terms of underscoring that it is not always possible to import a rule into a non-jury court no matter how valuable that rule.

80. Where evidence is adduced in a trial within a trial before the Special Criminal Court, ordinarily the respondent will ask that the evidence heard be treated as evidence in the trial, usually this is effected following agreement between the parties. Reliance is placed on McGowan, where statements made by the accused were deemed admissible and where the prosecution recalled the witnesses to confirm the truth of the evidence already adduced. The argument advanced on appeal was that there was a breach of s. 41(4) of the 1939 Act in that the procedure did not correspond with the practice in the Central Criminal Court. The Court of Criminal Appeal rejected the argument.

81. Section 41(4) provides:

“(4) Subject to the provisions of this Act, the practice and procedure applicable to the trial of a person on indictment in the Central Criminal Court shall, so far as practicable, apply to the trial of a person by a Special Criminal Court, and the rules of evidence applicable upon such trial in the Central Criminal Court shall apply to every trial by a Special Criminal Court.”

82. It is clear that the words “so far as practicable” mean that exact mirroring of practices and procedures would not always make absolute sense given that the Special Criminal Court is a non-jury court. While McGowan is relied upon as support for the proposition that the correct procedure to be adopted by the Special Criminal Court following a voir dire is that witnesses are recalled; the oath/affirmation taken and the truth of the evidence adduced in the voir dire confirmed, the issue in McGowan was that that procedure did not conform with s. 41(4) of the 1939 Act in that the evidence should have been repeated. This was rejected by the Court of Criminal Appeal. McGowan simply says that that procedure was not a breach of s. 41(4), but it does not contend that that procedure was the only procedure; it is not prescriptive. It is authority, however, for the proposition that evidence does not require to be repeated before the Special Criminal Court.

83. There is no doubt that s. 41(4) provides a caveat in the use of the words “so far as practicable”, for good and logical reasons. A non-jury court comprising three professional judges does not require the evidence heard in a trial within a trial to be repeated. The purpose of the oath/affirmation is as stated above; to ensure that a person realises the gravity of giving evidence and to ensure as far as it is possible that a person tells the truth.

84. We are not persuaded that it was necessary that the evidence be either reheard (which is not advanced), or that the witness swear an oath regarding evidence in the trial. The importance of the oath pertains to the understanding and the promise to tell the truth. It seems to this Court that the difference in the wording of the oath vis-à-vis the trial within a trial and the trial is purely to distinguish that process for the purpose of a jury trial. The trial is a unitary process and was so in the present case where the evidence was heard, the witnesses having been sworn in by virtue of the oath or affirmation.

85. In McGrath on Evidence (3rd ed. 2020) at para. 3.06 the authors refer to R v Kemble [1990] 3 All ER 116:—

“[I]t was held that the question of whether the administration of an oath is lawful does not depend upon what might be the considerable intricacies of a particular religion adhered to by a witness but on whether the oath is one that appeared to the court to be binding on the conscience of the witness and which was so considered by the witness.

It should be noted that the fact that the witness did not have any religious belief at the time of taking the oath does not affect the validity of the oath.”

86. Whilst Kemble concerned religious beliefs, it is apposite in terms of confirming the essentials of the oath/affirmation, which are to underline the solemnity and gravity of giving evidence and the requirement to tell the truth, the whole truth and nothing but the truth. Section

3 of the Oaths Act 1888 is also relevant which provides:—

“Where an oath has been duly administered and taken, the fact that the person to whom the same was administered had, at the time of taking such oath, no religious belief, shall not for any purpose affect the validity of such oath.”

87. Clearly, if a person may take the oath without holding religious beliefs and this does not under statute affect the validity of the oath, it is very difficult to see how the fact that the oath referred to evidence in the voir dire as opposed to evidence in the trial could impact on the lawfulness of the admission of the evidence in the trial, or could cause any prejudice to the appellants. Further, it is difficult to see how the deviation from the procedure in the Central Criminal Court could have impacted the fairness of the trial or rendered the conviction unsafe. On the point of principle that procedure should be followed, we do not find there was any breach of procedural requirements or that the court erred in its ruling.

88. R v Chapman [1980] Crim LR 42 (CA), which was referred to in Kemble, is also persuasive. In that case, a witness failed to take the Testament in his hand. Refusing leave to appeal, it was held that a failure to comply with the words of the Oaths Act 1978 did not necessarily invalidate the entire taking of the oath. The key point was the fact that it was binding and intended to be binding upon the conscience of the witness.

89. Referring to this case, the Law Reform Commission in its 1990 paper on Oaths notes that “it has been established that a failure to strictly comply with the statutory form of oath or affirmation will not in itself render the evidence given invalid.”

90. The Criminal Justice (Perjury and Related Offences) Act 2021 commenced during the currency of this trial on the 28 July 2021 and, whilst the Act concerns perjury, s. 11 thereof underlines the position that a failure to strictly comply with the form of an oath or affirmation will not in and of itself render the evidence given thereafter, invalid. Section 11 provides:

“11. For the purposes of this Act, the forms and ceremonies used in administering an oath are immaterial, if—

(a) the court or person before whom the oath is taken has power to administer an oath for the purpose of verifying the statement in question, and

(b) if the oath has been administered in a form and with ceremonies which the person taking the oath has accepted without objection or has declared to be binding on him or her.”

91. The procedure in the Central Criminal Court will not always be readily adapted to the non-jury court. The evidence was heard in the voir dire as a part of the trial process, the purpose of the oath or affirmation is to seek to ensure that the evidence given is the truth. We are not persuaded that the court erred in permitting the adoption of the evidence without the witnesses being recalled and re-sworn, having already been sworn in the trial within a trial.

92. Accordingly, we reject the grounds of appeal relating to this issue.

Admissibility of Mobile Phone Call Data Records

93. All three appellants lodged several grounds of appeal relating to decisions of the trial court relating to mobile phone evidence, to include the decision by the trial court to admit into evidence various mobile phone call data records.

94. The respondent intended to adduce in evidence mobile phone call data records relating to the appellants and other persons. The data had been retained by the telecommunication providers pursuant to the relevant provisions of the Communications (Retention of Data) Act 2011 (‘the 2011 Act’) and was accessed on foot of District Court warrants issued pursuant to s. 10 of the 1997 Act.

Legal Background and Developments

95. Prior to the trial of this matter, the legality of the retention (and access) provisions of the 2011 Act had been questioned over a significant period of time.

96. On 8 April 2014, the CJEU determined in Digital Rights Ireland Ltd (Joined Cases C- 293/12 and C594/12, EU:C:2014:238), that the Data Retention Directive (Directive 2006/34) (which underlay the 2011 Act) was invalid as it was in breach of Article 7 and 8 of the EU Charter of Rights. This decision was followed by Tele2 Sverige AB v Post-och telestyrelsen (Joined cases C-203/14 and C-698/15, EU:C:2016:970) which found that the retention provisions of national legislation implementing the 2006 Directive were contrary to EU law. However, as Collins J noted in The People (DPP) v Smyth and McAreavey [2024] IESC 22:—

“[I]t is evident that Tele2 was not regarded as the last word on the compatibility of Member States' data retention and access regimes with the ePrivacy Directive or the Charter and was not understood as resolving for once and for all the lawfulness of general retention in all circumstances.”

97. On 6 December 2018, the High Court determined in Dwyer v Commissioner of An Garda Síochána [2018] IEHC 685 that the retention and access provisions of the 2011 Act were contrary to EU law and granted declaratory relief to that effect. A stay was put on the order pending an appeal to the Supreme Court. On 24 February 2020, the Supreme Court determined [Dwyer v Commissioner of An Garda Síochána [2020] IESC 4] to make a reference to the CJEU, having decided that three key areas of European Union law were not acte clair. One of the questions raised by the Supreme Court was:- “[w]hether a system of universal retention of certain types of metadata for a fixed period of time is never permissible irrespective of how robust any regime for allowing access to such data may be”, with the Supreme Court expressing the view that:- “[general data] retention is both essential and strictly necessary to the achievement of the objective of combating serious crime”.

98. On 18 November 2021, Advocate General Campos Sanchez-Bordana delivered an opinion in response to the reference from the Supreme Court to the effect that the retention and access provisions of the 2011 Act were contrary to EU law. This was followed by a judgment on 5 April 2022 from the CJEU (GD v Commissioner of An Garda Síochána (Case C-140/20, EU:C:2022:258)) which determined that national legislative measures which permitted general and indiscriminate retention of traffic and location data of electronic communications were precluded as they were in breach of the EU Charter on Fundamental Rights. However, admissibility of evidence obtained by means of such retention was a matter for national law, subject to compliance with the principles of equivalence and effectiveness.

99. Arising from this determination, on 26 May 2022 the Supreme Court indicated in Dwyer that it would affirm the High Court declaration previously made and a formal Order was granted on 13 July 2022 to this effect.

100. In Smyth and McAreavey, the Supreme Court considered the question of whether mobile phone call data records, illegally retained and accessed by An Garda Síochána between June and December 2017, pursuant to the unlawful provisions of the 2011 Act, could nevertheless be admitted into evidence in a criminal trial. The Supreme Court determined that retention and access to such data was equivalent to a breach of constitutional rights and that the admissibility of such evidence fell to be assessed by reference to the principles established in The People (DPP) v JC [2017] 1 IR 417.

101. In considering the question of whether the evidence should be admitted pursuant to JC, and specifically the question of whether there had been an intentional breach of the accused persons’ rights having regard to the uncertainty which surrounded the 2011 Act for such a significant period of time, Collins J, delivering the majority judgment of the Court stated at para. 182 of his judgment that: “members of An Garda Síochána were entitled to rely on the provisions of the 2011 Act, unless and until a competent court determined otherwise.” With respect to when that event occurred, Collins J stated at para 189 of his judgment:—

“Assessed objectively, JC compels the conclusion that the breach of the Charter here was not “deliberate and conscious” in the JC sense. The 2011 Act was on the statutebook when the data at issue in this appeal was retained and accessed (between June and December 2017). By analogy with JC itself (where the search warrant had been issued pursuant to a statutory provision that was subsequently struck down in Damache), the illegality here arose as a result of a “subsequent legal development”, namely the combined effect of the CJEU's judgment in GD and the declaration subsequently granted by this Court when the proceedings came back before it”.

102. Collins J proceeded to determine at para. 210 of his judgment that the evidence in Smyth was admissible pursuant to JC on the following basis:—

“…..The breaches to which the Appellants, as individuals, can point to are not, in my view, of such dimensions as to mandate exclusion. Certainly, their personal/private information was retained unlawfully. But such retention took place in accordance with an enactment of the Oireachtas. Furthermore, only a limited amount of personal/private information was accessed and then only for the purposes of investigating a very serious criminal offence. Although access was not governed by a system of prior independent authorisation, it was not unregulated either. The 2011 Act limited access for the purpose of the investigation of a “serious offence”

(as well as the protection of State security and the saving of human life) and there were administrative arrangements in place intended to operate as a filter on access requests.” Grounds of Appeal

103. It is against this background that the appellants appeal against the rulings of the trial court relating to this issue. The grounds of appeal in Mr. Harte’s appeal, which are of a similar nature to the co-appellants’ grounds of appeal in relation to this issue, are:—

8. “The learned trial Judges erred in refusing to adjourn the trial in order that the law could be clarified vis-à-vis admissibility of the mobile phone evidence. Having regard to all the circumstances, including the stated reasoning for refusing the initial adjournment applications (that the Special Criminal Court would apply the law as declared by the High Court in the Dwyer case) as compared to the stated reasoning for the ultimate decision as to the admissibility of the mobile phone evidence, the trial took place in circumstances in which justice was neither done nor seen to be done.

9. The learned trial Judges erred in refusing to defer its determination on guilt until after the ruling of the CJEU or the Supreme Court in the Dwyer case having regard to the content of the opinion of the Advocate General.

10. The learned trial Judges erred in fact and in law in refusing to rule inadmissible the mobile phone data evidence, having regard to all the circumstances of fact and law.

11. In particular, the learned trial Judges erred in refusing to find that the call data records related to the said mobile phones had been retained and accessed in breach of law and in a manner which failed to provide minimal protections for the rights of the Appellant, the co-accused and citizens of Ireland and the European Union, including their constitutional rights, human rights and privacy rights, including those under the Charter of Fundamental Rights of the European Union.”

Discussion and Determination

104. In oral submissions before this Court, counsel on behalf of Mr. Harte indicated that his submissions would be limited to arguments arising from Smyth and McAreavey and specifically, to whether the trial court should have admitted the illegally obtained evidence in light of the principles enunciated in JC. However, complaints in relation to the refusal to adjourn the trial to await the outcome of the reference to the CJEU were aired. In addition, Counsel for Mr. O’Brien indicated that he was relying on his written submissions with respect to this issue in the appeal. Accordingly, the Court will deal with all of the grounds of appeal raised under this heading as it appears that these continued to be pursued.

The Refusal to Adjourn the Proceedings and the Trial Court’s Verdict Until After the CJEU Responded to the Supreme Court’s Reference in Dwyer

105. On 26 November 2020, the appellants sought that the trial be adjourned until after the CJEU responded to the Supreme Court’s reference in Dwyer. The basis of the application was that the law in this area remained uncertain and for that reason, it was asserted, that it was inappropriate that the trial proceed before the Supreme Court pronounced judgment in Dwyer on foot of the CJEU response.

106. On foot of this application, the trial court offered to adopt the view that the retention provisions of the 2011 Act were unlawful and to proceed on that basis in light of the fact that it was unlikely that the CJEU would take a different view to that expressed by it in Tele 2, and another recent case of La Quadrature du Net and Others (Joined Cases C-511/18, C-512/18 & C-520/18, EU:C:2020:791). This approach did not find favour with the appellants. Ultimately, the trial court determined to proceed with the trial and refused the adjournment application.

107. When the trial court came to determine the issue of admissibility of the mobile phone data in the course of the trial, a recent decision of the CJEU on 2 March 2021 in HK v The

Procurator (Case C-746/18, EU:C:2021:152) was brought to its attention. The trial court interpreted this decision as demonstrating a change of approach by the CJEU with respect to retention and access to data, if the data was accessed to combat serious crime. In light of this

decision, and determinations made by the Supreme Court in the reference it made to the CJEU in Dwyer, the trial court determined that access to the data at issue was not automatically illegal and might be lawful if its access was proportionate to the purpose of combatting serious crime.

108. Before this Court, the appellants complained that the trial court rowed back on the offer it made to determine the case according to the CJEU jurisprudence prior to HK. Whether a court can actually make a binding offer, in the course of a preliminary hearing, to apply a particular line of jurisprudence to the exclusion of any other judicial determinations which might be delivered in the course of the full hearing is academic in light of the fact that the appellants did not take up the offer made by the trial court. A perusal of the transcript clearly reflects this to be the case. Accordingly, the complaint made by the appellants is not wellfounded.

109. The decision of the trial court to proceed with the trial while the answer from the CJEU in Dwyer was awaited was a decision which fell entirely within the trial court’s discretion. It cannot be said that that decision was made in error. While appeal cases may have awaited the

decision from the Supreme Court in Dwyer, that is a completely different matter to a trial court determining to adjourn a trial. As already indicated, this is a matter which lay entirely within the trial court’s discretion, and it is inappropriate for this court to interfere with that decision in the circumstances arising.

110. As it transpired, the trial was adjourned for other reasons. Having been listed to start on

11 January 2021, the trial did not ultimately start until the 2 June 2021. The Supreme Court did not make final orders in Dwyer until 13 July 2022.

111. This reasoning equally applies to the decision of the trial court not to halt the delivery of its verdict. On 1 November 2021, the appellants brought to the attention of the trial court the fact that the Advocate General in the Dwyer case had delivered an opinion which was in line with earlier jurisprudence from the CJEU to the effect that mass retention and access to electronic data communications was in breach of Charter rights. A request for an adjournment of the trial court’s deliberations and delivery of the verdict was requested. This was refused by trial court.

112. Again, this was a decision entirely within the discretion of the trial court, in respect of which an error has not been established.

113. Furthermore, the appellants have failed to establish what prejudice they have suffered as a result of the decision of the trial court to proceed with the trial, its deliberations, and delivery of its verdict in light of the Supreme Court’s subsequent decision in Smyth and McAreavey which found that a JC analysis to determine whether the illegally obtained evidence should be admitted into evidence ought to be carried out.

The Trial Court Erred in Admitting the Mobile Phone Data

114. The trial court ruled that the retention and access to the mobile phone data was lawful, applying the dicta of the CJEU in HK. GD v Commissioner of An Garda Síochána has since established that the retention of this data was not lawful and the provisions of the 2011 Act permitting the retention of this data was in breach of EU Charter Rights. However, Smyth and McAreavey has established that such evidence can be admissible pursuant to the principles set out in JC.

115. Accordingly, the retention of this illegally held data, whilst in breach of charter rights, could be admitted pursuant to the principles enunciated in JC. The trial court conducted a JC analysis as an alternative to its finding that the data was lawfully retained, lest it was incorrect in this view. It stated:—

“In case we are wrong in any of our conclusions as to the legal proprietary of any of the garda actions in this case, we find as a fact that those actions did not amount in any sense to a deliberate disregard of constitutional or other rights but were, on the contrary, perfectly considered, logical, targeted and incremental and were performed in responsible and thoughtful manner in response to the facts as they emerged in the course of a complex investigation into very serious criminal offences.

… [W]e also find that having regard to the undoubted difficulties posed by ongoing Dwyer litigation, the search for and use of an alternative means of access to retained traffic and location data was both acceptable and appropriate. What would have been unacceptable and inappropriate would have been the absence of any attempt to surmount these difficulties bearing in mind the undoubted duty on members of An Garda Siochana to investigate serious crime on behalf of the rest of society by the use of all reasonable, permissible and legitimate measures; … we also observe that the sea change brought about [by] the JC case is that where the exclusion of evidence is in issue, the emphasis is now on the effect of any breach of rights constitutional or otherwise on the fairness of the trial process and where such a breach is claimed as a basis of the exclusion of evidence on the circumstances giving rise to the breach and the nature of the evidence concerned. Even if there was some illegality attaching to retention or access in this case, it is our tentative view that the circumstances are such that admission of the evidence would nonetheless be appropriate in this case. In view of our conclusion that there is no such illegality, there is no need to dwell further on the JC judgment.”

116. Therefore, whilst the trial court was incorrect about the validity of the retention provisions of the 2011 Act, it nonetheless determined, in the alternative, that the evidence was admissible pursuant to JC. The question therefore arises whether the trial court erred in that determination.

117. Whilst Smyth and McAreavey considered mobile phone data obtained in 2017, Collins J opined that, despite the reservations expressed regarding the 2011 Act over very many years, the Gardaí were justified in acting on foot of the provisions of the 2011 Act, as it remained the law of the land until the Supreme Court declaration in Dwyer on 26 May 2022 on foot of the response of the CJEU. At paragraph 186 of his judgment, Collins J stated:—

“Accordingly, the argument that it was clear, or ought to have been clear, to An Garda Síochána (or the Government or the Oireachtas) that the 2011 Act was invalid at any point prior to the CJEU's decision in GD must be rejected in light of our decision in Dwyer.”

118. The appellants have argued that Collins J’s opinion in this regard is obiter, as the telephone data obtained in Smyth and McAreavy was in 2017 and that therefore his statement to the effect that the guards were entitled to rely on the 2011 Act up until the date of the

Supreme Court’s declaration in Dwyer is not binding on this Court. We do not agree that this analysis correctly addresses the issue arising.

119. Firstly, the relevant illegality with respect to the 2011 Act in the instant case relates only to the retention of the relevant mobile phone data, rather than access to such data, as s. 10 of the 1997 Act was utilised by the investigating guards to access the data rather than the access provisions of the 2011 Act. In addition, Collins J’s determination that the 2011 Act had legal effect until the Supreme Court made its declaration in Dwyer in May 2022 is binding upon us. This was a determination which had to be made by the Supreme Court for the resolution of the issues in Smyth and McAreavy and therefore forms part of the ratio decidendi of that decision. Accordingly, the data at issue in the instant case was required to be retained by the telecommunication providers at the time of its retention and up to the time it was accessed on foot of the s. 10 warrants in the latter half of 2019, because the 2011 Act remained operative at that point in time.

120. What then remains to be considered pursuant to JC is whether the evidence obtained from the illegally retained mobile phone call data should nevertheless be admitted into evidence. The telecommunication providers were legally obliged to retain this data pursuant to the retention provisions of the 2011 Act, which were at that time operative and binding on them. In circumstances where the relevant evidence was retained, although it transpired to be illegally so, we are of the view that the trial court did not err in determining that the evidence should be admitted in light of the onus placed on mobile phone providers to retain such evidence. We are of the opinion that the reasoning of Collins J in Smyth and McAreavy with respect to the illegal retention of such evidence in that case applies with equal force to the instant case.

121. For completeness, a further matter arises by virtue of the provisions of the Data Protection Acts 1988 – 2018. This was raised on Mr Harte’s behalf in the context of the phone records. In particular, it was said that the disclosure of personal data by data controllers (such as the telephone company) does not fall within the definition of “processing” under the Acts.

122. This form of disclosure fell under the definition of “processing” under the 1988 Act as amended by section 2 of the 2003 Act. The provisions of s. 2 of the 2018 Act, which may be described as the definition section, has nothing to say about the definition of processing under the Acts, and of course all of the Acts are to be read together. An amendment to the definition is said to arise by virtue of s. 8 of the 2018 Act which came into effect in that year. It is as follows:

“8. (1) Subject to this section, the Act of 1988 shall, on and from the date on which this section comes into operation, cease to apply to the processing of personal data (within the meaning of that Act) other than—

(a) the processing of such data for the purposes of safeguarding the security of the State, the defence of the State or the international relations of the State, or

(b) the processing of such data under the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 or the Vehicle Registration Data (Automated Searching and Exchange) Act 2018 to the extent that the Act of 1988 is applied in those Acts.

(2) The Act of 1988 shall apply to—

(a) a complaint by an individual under section 10 of that Act made before the commencement of this section, and

(b) a contravention of that Act that occurred before such commencement.

(3) An investigation under section 10 of the Act of 1988 that was begun but not completed before the commencement of this section shall be completed in accordance with that Act and that Act shall apply to such an investigation.”

123. The section came into force on the 25th of May 2018. The plain and ordinary meaning of the provision in question hardly needs restatement; the section merely excludes the application of the 1988 Act to processing of personal data. It has no effect on the definition of processing, as the trial court rightly held. The trial court, again rightly, held that the processing of such data is now governed by s. 41 of the 2018 Act. That provision is as follows:

“41. Without prejudice to the processing of personal data for a purpose other than the purpose for which the data has been collected which is lawful under the Data Protection Regulation, the processing of personal data and special categories of personal data for a purpose other than the purpose for which the data has been collected shall be lawful to the extent that such processing is necessary and proportionate for the purposes—

(a) of preventing a threat to national security, defence or public security,

(b) of preventing, detecting, investigating or prosecuting criminal offences, or

(c) set out in paragraph (a) or (b) of section 47.”

124. In our view, on the facts, the processing involved here is lawful.

125. Accordingly, we dismiss the grounds of appeal relevant to these issues.

Access to Phone Records on Foot of Search Warrants Issued Pursuant to s. 10 of the 1997 Act

126. The admissibility of the mobile phone data is, in the first instance, dependent upon the validity of s. 10 search warrants issued by the District Court. The relevant provision of the 1997 Act (insofar as it is material) is as follows:—

“10.—(1) If a judge of the District Court is satisfied by information on oath of a member not below the rank of sergeant that there are reasonable grounds for suspecting that evidence of, or relating to, the commission of an arrestable offence is to be found in any place, the judge may issue a warrant for the search of that place and any persons found at that place.

(2) A search warrant under this section shall be expressed, and shall operate, to authorise a named member, accompanied by such other members or persons or both as the member thinks necessary—

(a) to enter, at any time or times within one week of the date of issue of the warrant, on production if so requested of the warrant, and if necessary by the use of reasonable force, the place named in the warrant,

(b) to search it and any persons found at that place, and

(c) to seize anything found at that place, or anything found in the possession of a person present at that place at the time of the search, that that member reasonably believes to be evidence of, or relating to, the commission of an arrestable offence.”

127. The informations sworn for the purpose of obtaining search warrants pursuant to the aforementioned provision were as follows:

1. Information sworn by Sergeant Michael Kearney on 24 September 2019 pertaining to Cyril McGuinness. This Information formed the basis of an application for a search warrant in the Dublin Metropolitan District at Meteor Communications Ltd., Bianconi Ave, City West Business Campness (sic), Dublin

24 for evidence relating to the mobile phone number 2200.

2. Information sworn by Detective Sergeant Damian Boland on 25 October 2019 pertaining to Marguerite Donnery (the partner of Mr. Harte). This Information formed the basis of an application for a search warrant in the Limerick District at Virgin Media Ireland, Limerick Enterprise Development Park, Roxboro Road for evidence relating to the mobile phone number 085 107 4830.

3. Information sworn by Sergeant Sharon Walsh on 27 September 2019 pertaining to Mr. Harte. This Information formed the basis of an application for a search warrant in the Dublin Metropolitan District at Meteor Mobile Communications Limited, 2022 Bianconi Avenue, Citywest Business Campus Ltd, Dublin 24 for evidence relating to the mobile phone number 9717.

4. Information sworn by Sergeant Lisa Murray on 21 November 2019 pertaining to Mr. Harte. This Information formed the basis of an application for a search warrant in the Dublin Metropolitan District at Meteor Mobile Communications Limited/Eircom Ltd., 2022 Bianconi Avenue, Citywest Business Campus Limited, Dublin 24 for evidence relating to the mobile phone number 085 871 0654.

5. Information sworn by Sergeant Lisa Murray on 21 November 2019 pertaining to Mr. Redmond. This Information formed the basis of an application for a search warrant in the Dublin Metropolitan District at Meteor Mobile Communications

Limited/Eircom Ltd., Bianconi Avenue, Citywest Business Campus, Dublin 24 for evidence relating to the mobile phone number 1567.

128. One of the mobile phones does not appear to be of any relevance, namely, that with the number 085 8710654: this was the number given by Mr. Harte on a written application which he made to the Passport Office, and it does not feature in the proceedings, but it was properly sought before the proceedings. Unsurprisingly, it was sought to obtain relevant data pertaining to that number given that it was asserted by Mr. Harte that it was his number. We need not deal further with it.

129. Section 10 of the 1997 Act has been considered in Corcoran v. The Commissioner on An Garda Síochána [2023] IESC 15, amongst others. We think that it would be of assistance if we quoted shortly from the decision of Collins J as to what a warrant issued pursuant to the section can or cannot permit:—

“14. … A warrant issued under the section operates to authorise a named Garda to enter the place named in the warrant – if necessary, by force – to search that place and any persons found at it and “to seize anything at that place … that the member reasonably believes to be evidence of, or relating to, the commission of an arrestable offence” (my emphasis). That extends to anything that is reasonably believed to be evidence of, or relating to, the commission of a different arrestable offence(s) to the offence(s) identified in the Information. There is nothing in Section 10 to suggest that the judge has power to restrict the scope of a warrant issued under the section, such as by authorising only the seizure of specified items or categories of items. … Nor is there anything in Section 10 that appears to permit the judge to attach conditions to a warrant …

15. Even so, a judge asked to issue a Section 10 warrant is far from being a cipher or rubber-stamp. The importance of their function as an independent and impartial

decision-maker is emphasised by this Court’s decision in Damache v DPP [2012] IESC 11, [2012] 2 IR 266 and its recent decisions in People (DPP) v Behan [2022] IESC 23 and in [The People (DPP) v. Quirke [2023] IESC 5].”

He considered the authorities as to the exercise of the power by the judge, emphasising, as they do, the judge’s function as an independent decision maker, and, inter alia, by reference to Quirke put the matter as follows:—

19. Quirke was concerned directly with Section 10. Charleton J’s judgment discusses the common law authorities on the power to search, which emphasise “the intervention of a judicial mind; the need for a statutory power; the conformance with the parameters of such power; the need to specify what is in reality sought; and the duty to use a power only for the purpose for which it is granted by statute. Such an approach is necessary to ensure that the manner in which a warrant is obtained, a significant but proportionate and necessary infringement on privacy rights, remains a legitimate balancing exercise carried out by the issuing judge” (at para 89).

and then pointed out that:—

“22. Accordingly, a judge asked to issue a warrant under Section 10 is obliged to scrutinize the application rigorously and assess it independently and impartially. That is the essential rationale of entrusting the function to an independent judge in the first place. That function cannot properly be discharged unless the applicant for the warrant ensures that all material information is before the judge. That was the issue in Quirke.

If the judge is not satisfied that there are reasonable grounds for suspecting that evidence of, or relating to, the commission of an arrestable offence is to be found in the place that is sought to be searched, the warrant must be refused. But even where the judge is satisfied that that statutory threshold is met, it may still be appropriate to refuse to issue the warrant. That follows clearly from the language of Section 10 (providing as it does that, if satisfied that there are reasonable grounds for suspicion, “the judge may issue a warrant” (my emphasis)) but that position is in any event strongly reinforced by the constitutional imperative for an independent decision maker who must consider whether the issue of a search warrant under Section 10 appears to be a proportionate and necessary infringement of the rights of the intended subject(s) of the search. If not, the warrant must be refused. Any assessment of proportionality in this context necessarily involves consideration of whether some less intrusive measure might be sufficient to protect the interests of the State.”

130. We might say at the commencement that insofar as an argument has been advanced asserting that the warrants were invalid because each one of them in the body thereof authorised a wider search then that addressed to the mobile phones (to put it shortly), that argument is not stateable. In any event, the trial court addressed this issue by reference to the fact that there was no evidence that the Gardaí “obtained anything but the specific data referred to on the faces of each of the warrants”. The court held that: “the legality of the seizure of anything other than the specified data in the warrant must wait for an actual case where this unlikely scenario actually unfolds”. As can be seen, regardless of the basis upon which the court addressed this issue, the Supreme Court has put the position beyond doubt since the verdict.

131. There is a degree of overlap between the grounds of appeal where this topic is concerned. We think it would be of assistance if we set out the various grounds pertaining to it below.

132. In this context, Mr. Harte relies on the following ground of appeal:—

“19. The learned trial judges erred in determining that a number of search warrants were lawful, that the information in respect of each warrant which was used to ground same were adequate, in wrongly determining that the warrant was validly executed, in finding that the material had been lawfully seized, and or in the alternative, finding that the warrant had been used to seize the said materials, and admitting into evidence material seized on foot of search warrants.”

133. The grounds of objection to the admission of the phone records procured under the warrants are listed by Mr. Harte in his submissions as follows:—

(i) the process circumvented the protections of the relevant European law governing retention of and access to mobile telephone records.

(ii) the judge was not given sufficient information to determine the “reasonable grounds” criterion which is a condition precedent to issuing a warrant.

(iii) a warrant was executed at an address entirely different to that which was specified on the warrant. This did not occur due to inadvertence.

(iv) records were impermissibly obtained in respect of the phone of the Appellant’s partner.

As we know, each party has relied, in addition to any ground identified by himself, on the grounds and arguments advanced by co-appellants (so far as there is an overlap between their positions).

134. Mr. O’Brien relies on the following ground:

“7. Further, in particular, the Special Criminal Court erred in refusing to find that the method of accessing and procuring the said call data records by means of purporting to do so on foot of search warrants, did not provide minimal necessary protections of the said rights and was not a) in accordance with law; b) necessary; c)

proportionate; d) transparent, in particular having regard to the terms of those search warrants, including in that the procedure under s.10 of the Criminal Justice (Miscellaneous Provisions) Act, 1997 is not a lawful basis for accessing call data records; and the warrants permit forcible entry, search and seizure of all data reasonably believed to be evidence of any arrestable offence.”

The submissions made on behalf of Mr. O’Brien could be said to amplify the matters listed on behalf of Mr. Harte.

135. Mr. Redmond endorsed the submissions made on behalf of the other appellants, but that was not his primary focus. Arguments were made on behalf of Mr. Redmond in relation to a phenomenon described as “data connects” to which we return below.

136. There were no less than five grounds of appeal regarding this issue on behalf of Mr. Redmond. We consider these together. Those grounds are as follows:

“12. The Special Criminal Court erred in law, or on a mixed question of fact and law in determining that a “data download” constituted a communication for the purpose of section 3 and Part 1 of Schedule 2 of the Communications (Retention of Data) Act 2011.

13. The Special Criminal Court erred on a question of law, or on a mixed question of fact and in law in determining that the mere fact that the data on the phone had been switched on constituted a user-based activity sufficient to bring the relevant data within the ambit of section 3 of the 2011 Act.

14. Further, or in the alternative, the Special Criminal Court misdirected itself in finding that user based activity does not require direct human intervention and that the sole focus of the Act is the generation of communication.

15. The Special Criminal Court erred in admitting evidence of data connections in circumstances where the warrant in question identified a specific set of communications which did not include data connections.

16. The Special Criminal Court erred in holding that the term “call related data”, contained in the warrant, covered all data connections.”

(i) the process circumvented the protection of the relevant European law governing retention of and access to mobile telephone records. AND

(ii) the judge was not given sufficient information to determine the “reasonable grounds” criterion which is a condition precedent to issuing a warrant.

137. Under this head we also deal with Mr. O’Brien’s submission as to user of this procedure and, insofar as it is relevant, Mr. Redmond’s position.

138. The 2011 Act was enacted to, inter alia, give effect to Directive 2006/24/EC on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amended Directive 2002/58/EC (the so-called ‘e-privacy Directive’). The 2011 Act provided for the retention of call data and records such as those in issue in the present appeal.

139. Section 6 of the 2011 Act provides for a mechanism for accessing data retained pursuant to the Act; that section (as enacted) provided:—

“(1) A member of the Garda Síochána not below the rank of chief superintendent may request a service provider to disclose to that member data retained by the service provider in accordance with section 3 where that member is satisfied that the data are required for—

(a) the prevention, detection, investigation or prosecution of a serious offence,

(b) the safeguarding of the security of the State,

(c) the saving of human life.

…

(4) A disclosure request shall be made in writing, but in cases of exceptional urgency the request may be made orally (whether by telephone or otherwise) by a person entitled under subsection (1), (2) or (3) to make the request.

(5) A person who makes a disclosure request orally shall confirm the request in writing to the service provider within 2 working days of the request being made.”

140. The mechanism for accessing data provided for by the aforementioned section was not used in the present case. Gardaí used warrants issued pursuant to s. 10 of the 1997 Act instead.

141. The submissions of Counsel for Mr. Harte under this heading were summarised thus by the trial court in its ruling on 8 July 2021: —

“The overarching objection made by Mr O'Higgins seems to be that it is impermissible to insert the 1997 legislation into the void left by the infirmity of section 6 of the 2011 Act, in terms of the requirements of European Union law. He suggested that what should have happened was that the Oireachtas should have amended the 2011 legislation to address the infirmities in section 6 of the 2011 Act revealed by O'Connor J in Dwyer, rather than, as he put it, "plowing on" [sic] by attempting to reverse the 1997 Act into the gap left in the 2011 Act.”

142. In his written submissions, Counsel for Mr. Harte quoted the submission he made in this regard to the trial court.

143. Counsel for Mr. O’Brien summarised his position in his written submissions as follows:

“… The defence on behalf of the Appellant adopts all counsel for AH’s regarding EU law and retention of phone records and, sought to emphasise 5 points regarding Irish law.

a) Privacy rights associated with phone data are very important constitutional rights.

b) The invasion of such rights must meet certain conditions and must be a) in accordance with law; b) necessary; c) proportionate; d) transparent.

c) In this case conditions a)-c) have not been met: the s10 procedure is not a lawful basis for accessing data; the warrants permit forcible entry, search and seizure of all data reasonably believed to be evidence of any arrestable offence.

d) This was done through the conscious and deliberate actions of the gardaí:

they knew what they were doing: they drafted the search warrants.

e) If JC is applied it is explicitly clear: the evidence must be excluded automatically since there is no balancing exercise where the prosecution has not proved that the actions of the gardaí (which exceeded the limits of their powers) were not conscious and deliberate.

f) The majority in JC said that trial judges could be trusted to apply the correct tests; to suggest otherwise was offensive and depressing.”

144. The admissibility of this evidence by reference, inter alia, to JC has already been dealt with.

145. Regarding the submission that Gardaí used a s. 10 search warrant to circumvent frailties inherent in s. 6 of the 2011 Act, Counsel for Mr. O’Brien also said that even if it was correct that such a search warrant could be used to access retained phone data, it was nevertheless submitted that it did not meet a “required threshold” to do so in the present case, owing to what he described as “deficiencies” in how Gardaí obtained those warrants.

146. We quote from the trial court’s ruling on this issue insofar as we consider it relevant:

“The requirements for a valid access to retained data in European Union law are discussed by Chief Justice Clarke in Dwyer and underlined by the Court of Justice in the subsequent HK judgment. At paragraph 6.21, Chief Justice Clarke stated that he was: "Inclined to conclude that the Irish regime ..." -- found in the 2011 Act -- "… does not provide adequate safeguards to meet the requirements of Union law in the light of the jurisprudence of the Court of Justice." He noted the desirability of: "Decisions concerning the appropriateness or otherwise of access to retained data being made by persons with real experience in criminal investigation and prosecution," and the general awareness that senior investigating gardaí would have of the intensity with which their actions are intensely scrutinised in the context of a criminal trial. Indeed, the intense and minute scrutiny of every garda action, no matter how minor, is in fact well exemplified by the course of this trial. Chief Justice Clarke also noted the: "Ex post facto scrutiny judicial and otherwise," contained in the scheme of the 2011 Act.

It appears to us that An Garda Síochána has given full force and respect [to] the

decision of the High Court and the observations of the Supreme Court in Dwyer by the deliberate and conscious decision, publicly expressed, to look elsewhere for a legitimate means of access to retained data. Their choice of method must be judged against the essential requirements of EU law in this regard. These are encapsulated in the recent HK judgment. As already seen, this decision holds that access for purposes in the criminal field to a set of traffic or location data in respect of electronic communications, allowing precise conclusions to be drawn concerning a person's private life, is permitted only in order to combat serious crime or prevent serious threats to public security.

In response to the access questions posed by the Estonian Supreme Court, the Court of Justice confirmed that it is for national law to determine the conditions under which providers of electronic communication services must grant the competent national authorities access to the data in their possession. However, in order to satisfy the requirement of proportionality, such legislation must lay down clear and precise rules governing the scope and application of the measure in question and imposing minimum safeguards. So, the person whose personal data are affected have sufficient guarantees that data will be effectively protected against risk of abuse. That legislation must be legally binding under domestic law and must indicate in what circumstances and under which substantive and procedural conditions. A measure providing for the processing of such data may be adopted, thereby ensuring that the interference is limited to what is strictly necessary.

According to the Court of Justice, in order to ensure in practice that those conditions are fully observed, it is essential [to] access that the component of the competent national authorities to retained data be subject to a prior review carried out either by a Court or independent administrative body. And that the decision of that Court or body be made following a reasoned request by those authorities submitted inter alia within the framework for procedures for the prevention, detection and prosecution of crime. In that regard the Court of Justice stated that one of the requirements for the prior review is that the Court or body entrusted with its carrying out must have all the powers and provide all the guarantees necessary, in order to reconcile the various interests and rights at issue. As regards a criminal investigation in particular, it is a requirement of such a review that that Court or body must be able to strike a fair balance between on the one hand, the interest relating to the means of the investigation in the context of combatting crime. And on the other, the fundamental rights to privacy and protection of personal data of the persons whose data are concerned by the access. Where that review is carried out not by a Court but by an independent administrative body […], that body must have a status enabling it to act objectively and impartially when carrying out its duties. And must for that purpose, be free from any external influence.

Having stated these requirements thus, it is clear to us that an access regime carried out under the aegis of an independent Judge at the District Court is precisely the kind of procedure that the Court of Justice had in mind in specifying these criteria. The fact that an existing statutory procedure has been chosen rather than an additional novel procedure is in our view neither here nor there, once the procedure utilised conforms with the general requirements set out above. Therefore, as a general proposition, we are satisfied that the use of the s. 10 warrant procedure constituted an appropriate and proper legal mechanism involving an independent consideration and balancing of the competing rights involved which is inherent in every decision by a District Court Judge to grant a judicial search warrant. Quite apart from the essential element of independence confirmed by an application to a judicial as opposed to a non-judicial personage, the use of the s. 10 procedure confers important additional advantages -- advantages, over and above the procedure which has fallen into disuse.

As I've already stated, the District Court Judges are well used to balancing competing rights in the process of deciding whether it is appropriate to issue a warrant, particularly a search warrant. Secondly, the District Court procedure requires that the basis upon which the warrant is sought, is set out in writing in advance, and that this information is subsequently given on oath by the applicant in person, before the deciding judicial authority. The District Judge can ask questions if he or she has any reservations about the information provided. The sworn information provides a permanent record of the basis upon which any warrant is subsequently granted which is available to the accused for precise questioning, examination and evaluation at any subsequent trial. The terms of the authority to access the data in question are embodied in a form of Court order. All of these aspects are superior to the s. 6 access procedure in terms of the quality of the process and the amount of information available and preserved for further use and scrutiny.

This trial exemplifies the scrutiny that becomes possible when there is a written record of the basis for the decision to authorise access to the data and with the opportunity for the detailed cross-examination of those who applied for such access. Finally, and most importantly, the limitation of the applicability of the s. 10 procedure to specify serious offences mirrors the crucial distinction drawn for the purposes of European law between crime generally and serious crime as was previously drawn by s. 6 of the 2011 Act. The only way in which the s. 10 process might be said to be inferior to the 2011 Act procedure, is that a s. 10 warrant may be applied for by a sergeant as opposed to the rank of inspector being required to trigger the s. 6 procedure. However, on balance, we consider that the single disadvantage is considerably outweighed by the independent judicial nature of the replacement process. In short, we are fully satisfied that the s. 10 procedure fulfils the essential requirements of European law in terms of access to the retained data as set out above and explained most recently by the Court of Justice itself in the HK judgement.”

147. A judge of the District Court, once fully informed of the facts as they are known to the Gardaí at the time of the informations, will consider (and, we have no doubt, did consider in this instance in accordance with his legal and constitutional obligations—there is no basis for suggesting he breached them, of course) the rights of the person who, putatively at least, was the owner or user of the phones in question, and in particular that their rights to privacy, especially in the context of protection of personal data. It is suggested that there was an attempt by the use of s. 10 of the 1997 Act to circumvent those protections. We cannot see how a higher form of protection could be afforded having regard to the obligations of the judge to which we have referred above. There is no basis whatsoever for suggesting that any of the judges did not consider the rights of the parties based on the evidence. In the present case, it would be hard to see how the discretion could have been exercised other than by issue of the relevant warrants.

148. We cannot set out in extenso the informations sworn in the present context, but we are satisfied that they are comprehensive and contain sufficient information (and perhaps more than sufficient information) to justify the issue of the warrants. In general, the highest degree of specificity is not required in an information but what we might describe as the main points relied upon—here the informations go further. In particular, each affords extensive information as to the relevance of the phones and data which might be gleaned therefrom. We see no distinction between the informations as to their sufficiency.

149. We cannot see how there could be any suggestion in the present case that the Gardaí did not make full disclosure of any relevant fact of which they were aware, and this would have permitted a judge to adjudicate or consider the rights of the individuals. We know that an obligation of full disclosure arises, for example, as something which did not occur in Corcoran (i.e. the fact that, on the facts, the judge was not afforded information which engaged what we might shortly term journalistic privilege), and the failure to disclose the latter meant that the warrant was bad. Nothing of that kind arises here.

(iii) a warrant was executed at an address entirely different to that which was specified on the warrant. This did not occur due to inadvertence.

150. By arrangement between the Gardaí and representatives of Meteor Mobile Communications Limited, the latter submitted to the execution of the warrant without insisting or requiring the Gardaí to actually enter their premises (on a number of successive occasions) and themselves actually searched the premises so that the information could be obtained (presumably by seizure of relevant computer equipment or downloading digital records or, to put the matter another way, with or without cooperation, physically seek out the digital records). Assuming, rightly or wrongly, that there was a restriction on the companies’ cooperation with the investigation of crime by providing the material voluntarily, the appellants’ proposition must be that a party cannot cooperate with the Gardaí to the point of submitting to the warrants and furnishing the material. We cannot see how this could be right as a matter of reason, and we think it makes no difference that the submission to the warrants did not take place at the premises named therein.

(iv) records were impermissibly obtained in respect of the phone of the Appellant’s partner.

151. We think it is highly debatable as to whether or not Mr. Harte has locus standi to question the validity of the admissibility of the phone records pertaining to Ms. Donnery. Assuming that he has, he can only have standing if their provision impinges on his rights. Assuming that that is so, the issue boils down to whether or not the District Court judge properly exercised his discretion based upon a sufficiency of information in accordance with the principles governing the jurisdiction under s. 10 of the 1997 Act. Based on the information provided to the District Court judge, it has not been established that he improperly exercised his discretion in the issuing of this warrant.

The ‘Data Connects’ Issue

152. Counsel for Mr. Redmond objected to the admissibility of evidence pertaining to socalled ‘data connects’ (non-user-based connections between mobile phone and masts which occur automatically when mobile data is enabled on such devices). He submitted that this category of data was not permitted to be retained pursuant to s. 3 of the 2011 Act and fell outside the lawful scope of the warrant. Counsel for Mr. Redmond also submitted that the scope of retained data sought under warrant was, due to the time period contemplated, disproportionate.

153. Regarding his first submission, Counsel said that the 2011 Act did not provide any lawful basis for the retention of data connects because data connects did not, in his submission, fall within the express wording of the definition of ‘internet data’ permitted to be retained pursuant to the 2011 Act as set out in Part 2 of Schedule 2 thereto. Counsel also said that the data connects would still have been unlawfully retained even if this category of data fell within the definition of internet data for the purpose of the 2011 Act.

154. Counsel for the respondent submitted that the arguments advanced on Mr. Redmond’s behalf under this head were misconceived because data connects do fall within the scope of data permitted to be retained pursuant to the 2011 Act. He also submitted that there was no basis for the suggestion that the 2011 Act only permitted the retention of user-based data and pointed out that Article 5(f) of Directive 2006/25/EC (which the 2011 Act was enacted to implement) obliged Member States to retain certain non-user-based data. Counsel submitted that one must have regard to the definition of ‘telephone service’ in s. 1 of the 2011, and both parts of Schedule 2 when interpreting what data may be retained pursuant to s. 3 of that Act. He submitted that s. 3: “clearly embraces the retention of electronic data generated by the phone in question while connecting to the network”, which, he submitted, includes the relevant data connects because such data is “fixed network and mobile telephony data” related to “telephone services” as defined by the Act.

155. He also submitted that the trial court was correct in ruling that even if data connects fell outside the definition of internet data permitted to be retained by the 2011 Act, then it would not be entitled to the same level of protection as data protected by EU law, and a court would accordingly have discretion to admit such evidence.

156. Section 3 of the 2011 Act (as enacted), insofar as it is relevant here, provided:—

“(1) A service provider shall retain data in the categories specified in Schedule 2, for a period of 2 years in respect of the data referred to in Part 1 of Schedule 2 and for a period of one year in respect of the data referred to in Part 2 of Schedule 2.”

Section 1 of the 2011 Act defines ‘telephone service’ as meaning: “calls (including voice, voicemail, conference and data calls), supplementary services (including call forwarding and call transfer) and messaging and multimedia services (including short message services, enhanced media services and multi-media services)”. Part 1 of Schedule 2 deals with fixed network telephony and mobile telephony data to be retained pursuant to s. 3 of the 2011 Act. That Part is as follows:—

“1. Data necessary to trace and identify the source of a communication:

(a) the calling telephone number;

(b) the name and address of the subscriber or registered user.

2. Data necessary to identify the destination of a communication:

(a) the number dialled (the telephone number called) and, in cases involving supplementary services such as call forwarding or call transfer, the number or numbers to which the call is routed;

(b) the name and address of the subscriber or registered user.

3. Data necessary to identify the date and time of the start and end of a communication.

4. Data necessary to identify the type of communication:

the telephone service used.

5. Data necessary to identify users’ communications equipment or what purports to be their equipment:

(a) the calling and called telephone number;

(b) the International Mobile Subscriber Identifier (IMSI) of the called and calling parties (mobile telephony only);

(c) the International Mobile Equipment Identity (IMEI) of the called and calling parties (mobile telephony only);

(d) in the case of pre-paid anonymous services, the date and time of the initial activation of the service and the cell ID from which the service was activated (mobile telephony only).

6. Data necessary (mobile telephony only) to identify the location of mobile communication equipment:

(a) the cell ID at the start of the communication;

(b) data identifying the geographical location of cells by reference to their cell ID during the period for which communication data are retained.”

Part 2 of Schedule 2 deals with internet access, internet e-mail and internet telephony data to be retained pursuant to section 3. That Part is as follows:

“1. Data necessary to trace and identify the source of a communication:

(a) the user ID allocated;

(b) the user ID and telephone number allocated to any communication entering the public telephone network;

(c) the name and address of the subscriber or registered user to whom an Internet Protocol (IP) address, user ID or telephone number was allocated at the time of the communication.

2. Data necessary to identify the destination of a communication:

(a) the user ID or telephone number of the intended recipient of an Internet telephony call;

(b) the name and address of the subscriber or registered user and user ID of the intended recipient of the communication.

3. Data necessary to identify the date, time and duration of a communication:

(a) the date and time of the log-in and log-off of the Internet access service, based on a certain time zone, together with the IP address, whether dynamic or static, allocated by the Internet access service provider to a communication, and the user ID of the subscriber or registered user;

(b) the date and time of the log-in and log-off of the Internet e-mail service or Internet telephony service, based on a certain time zone.

4. Data necessary to identify the type of communication:

the Internet service used.

5. Data necessary to identify users’ communication equipment or what purports to be their equipment:

(a) the calling telephone number for dial-up access;

(b) the digital subscriber line (DSL) or other end point of the originator of the communication.”

157. As Counsel for the respondent do in their submissions, we think it is helpful to quote Article 5(1)(f) of Directive 2006/24/EC which provides that among the categories of data Member States are obliged to retain is:

“data necessary to identify the location of mobile communication equipment:

(1) the location label (Cell ID) at the start of the communication;

(2) data identifying the geographic location of cells by reference to their location labels (Cell ID) during the period for which communications are to be retained.”

158. The trial court engaged closely with the provisions of the 2011 Act, inter alia, as follows:

“So, in section 3, as already noted, there is an obligation to retain data, and data is a term, as already noted, defined in section 1 of the Act, and it refers to two schedules in respect of different types of communications, and we accept, notwithstanding anything that was said in the free ranging discussion yesterday, that Mr Guerin is correct, and what is in issue here, given that we are dealing with mobile telephony is schedule 2 part

1 insofar as that defines the data to be retained in this particular context pursuant to section 3. That is headed "fixed network telephone and mobile telephony data to be retained under section 3". It then sets out six categories that apply. The first data to be retained is the data necessary to trace and identify the source of a communication. This includes the calling telephone number. That is present on the records in this case, and the name and address of the subscriber or the registered user. That's not particularly relevant to this application.

What does seem to be particularly in issue is category two, data necessary to identify the destination of a communication, and I hope we're correct in understanding Mr Bowman's submission that this is an important omission from the records because the GPRS connection between the handset and the network doesn't contain a number dialled. That is, of course, because no number is dialled in a data connection. Data is transferred to and from … a handset simply by making connection with the network using a handset which is able to make the connection to the network, and using a handset where it has been decided by the user to enable the data function so as to allow the transfer of data in that particular fashion because, of course, it is perfectly possible and indeed desirable in certain circumstances, as alluded to yesterday, that the data function be disabled so that one's account is not charged with such matters or one's prepaid if it's a prepaid account, one's prepaid credit isn't used up by data use, and indeed some people have the habit of not using at all and preferring to wait, where possible, to get a free Wi Fi connection. So that's all by way of simply observing that these things are there to be managed by the user of the phone if they consider it necessary or desirable.

The third category is data necessary to identify the date and time and start and end of a communication, data necessary to identify the type of communication, and this is important because the type of communication refers back to the definition section because it requires that it be specified what telephone service was used, and it will be recalled that telephone service includes data calls. And GPRS is a description in these records, one amongst many descriptions that appear in them, mobile outgoing, mobile terminating, message outgoing, SO or ST. GPRS signifies what is referred to in the Act as a data call, and is therefore covered by the Act, and is there because it is retained to identify the telephone service used when such a connection is made.

The fifth matter then is the data necessary to identify communications equipment or what purports to be their equipment, and that includes the calling and call telephone number, IMSI, IMEI in the case of mobile telephony, and in the case of prepaid anonymous the first activation. And then six is also present here, data necessary to identify the location of mobile communication equipment, which includes the cell ID at the start of the communication and data identifying the geographical location by reference to cell ID. All of these matters are present in retained material accessed under warrant in this case save for, of course, the number dialled. That's the only conceivable category that could take it out of the operation of the 2011 Act.

We are satisfied that a proper construction of the full terms of the Act as applied to the factual circumstances of this case shows that this is material that is covered by the first part one of schedule two that I have alluded to, notwithstanding the absence of a called number.”

The court went on to say:

“So, if it falls outside that area by reason of being outside that area of the Act and is not the full scale data and traffic location, traffic and location data that so concerns the Court of Justice, well, then of course the level of legal protection available to that must also fall in lockstep with it. In our view, if this argument was correct, and we don't believe that it is, but we might as well deal with it as if it is, that would be dealt with on a discretionary basis, and we would have no hesitation on a discretionary basis in admitting the information in the particular context of this case. But, in fact, it is covered clearly by the Act. The Act specifically refers to data calls. That's exactly what these were. They were communications between a SIM card, a handset and network for the purpose of transmitting data up or down. What data was actually transmitted, of course, is not known, but the communication was opened, the communication created a record, it's a communication that is a data call as defined in the Act. The Act applies to it, and the schedule in the Act applies to it. So that disposes of that side of the argument.”

159. We think the trial court was right about the plain and ordinary meaning of the statute; we cannot add anything. We accordingly think that the data in question is captured by the Act on a proper interpretation thereof.

160. Regarding Counsel for Mr. Redmond’s second submission that (to put the matter shortly) the warrant does not refer to data connects, we think it is true to say that the warrant does not expressly refer to such data, but we take the view, again on the plain and ordinary reading of the warrant, that this is “call-related data”.

161. Finally, as to the proposition that there was an illegality because the invasion of the appellant’s rights was disproportionate to the end sought to be achieved (namely, the collection of relevant evidence) because of the length of the period for which the records were sought (1 June 2019–28 November 2019); we reject this proposition. The offences were serious and planned over time, and it was open to the District Court judge (and subsequently the trial court) to reach the conclusion that they did and admit the evidence (so far as the warrants are material to that issue). In any event, the issue of the warrant in those terms occurred only after an adjudication by a District Court judge.

162. We therefore dismiss all of these grounds of appeal.

Admissibility of CCTV and ANPR evidence

163. We now turn to the admissibility of certain CCTV and ANPR recordings. This evidence is derived from CCTV harvested by members of An Garda Síochána from recordings made with the use of cameras on what we might shortly describe as private property generally and so-called ANPR. The latter system processes an image captured by a camera. We cannot see any difference in legal terms between them.

164. The grounds of appeal in Mr. Harte’s appeal which are mirrored in the co-appellants’ appeals are:-

“16. The learned trial Judges erred in refusing to rule inadmissible the CCTV evidence and the ANPR evidence, having regard to all the circumstances of fact and law.

17. In particular, the learned trial Judges erred in refusing to find that the said CCTV and ANPR material had been retained and accessed in breach of law and in a manner which failed to provide minimal protections for the rights of the Appellant, the co-accused and citizens of Ireland and the EU, including their constitutional rights, human rights and privacy rights, including those under Charter of Fundamental Rights of the European Union, in particular in circumstances where the prosecution had failed to prove that such retention and access had been carried out in a manner that was a)

in accordance with law; b) necessary; c) proportionate; d) transparent.

18. Further, the learned trial Judges erred in failing to find that the prosecution had failed to prove the chain of evidence in respect of the said CCTV and/or ANPR material, and to prove the provenance, integrity and reliability of the said material.”

165. There is no question, as found by the trial court, that private individuals (including, obviously, legal persons) were in any sense acting on behalf of An Garda Síochána or are in some sense their proxies. Gardaí have a duty, subject to legitimate operational requirements, within reason, to collect all available evidence which, in a meaningful way, may tend to support guilt or innocence, and indeed it has happened on occasion that a failure to seek out given evidence has given rise to a stay on prosecution. Such material, unless secured under warrant, is provided in the overwhelming majority of cases on a voluntary basis by law-abiding citizens (and by this we include legal persons) desirous of assisting the police as one might expect. This is what occurred here.

166. There is no basis for suggesting that this material, collected by private individuals or bodies corporate for their own legitimate purposes, constitutes some form of mass surveillance—the fact of the existence of the recordings in question is simply a feature of modern life. Individuals are perfectly entitled to operate CCTV equipment for, say, the protection of property against crime or analogous recordings to assist them for business purposes—including ANPR, essential nowadays to the operation of toll roads. The trial court rightly rejected any objection to these courses of action. The question here is whether once such material exists the Gardaí can legitimately obtain it, or whether its existence should be ignored. The issue of whether CCTV footage can be introduced into evidence (it can) has been dealt with by the courts on a number of occasions and argument on the matter has been well and truly exhausted. In a number of appeals, counsel have rightly abandoned any submission to the effect that evidence of this kind is inadmissible save, perhaps, to the extent that explicit reference has not been made to ANPR which we do not consider relevant. The law is set out in The People (DPP) v Brady [2024] IECA 170 (among other cases) and we think it will be sufficient to quote a portion thereof as follows:

“204. Recent case law from this Court has determined that separate to the issue of whether there has been a breach of the Data Protection Acts, CCTV footage from public spaces is generally admissible in a criminal trial. (See People (DPP) v. Thompson [2024] IECA 22; People (DPP) v. Dunbar [2024] IECA 85; People (DPP) v. Anghel [2024] IECA 90; and People (DPP) v. Harrington [2024] IECA 153).

205. People (DPP) v. Anghel provides a comprehensive summary of the Court’s view in relation to this issue where Edwards J. stated at paragraphs 152 – 156 of the Court’s judgment:

“152. We have no hesitation in rejecting the ground of appeal complaining about the admission of the CCTV evidence for breach of the appellant’s right to privacy. The arguments advanced by the respondent are in our view unassailable. We would hold that view even if there had been no developments in the law in this area since the hearing of this appeal. However, since this appeal was heard there have been two decisions of this Court which we consider to be directly in point. We allude to this Court’s decisions in The People (DPP) v Dunbar [2024] IECA 85, and in The People (DPP) v Thompson [2024] IECA 22. In both of these cases legitimate efforts were made by gardaÍ [sic] acting in the course of their duty to track and gather evidence concerning the movements of a murder suspect through public spaces, that had been captured in a non-targeted manner on privately owned CCTV equipment.

153. In the Dunbar case, we said with respect to such evidence (at paras 146

- 148):

“146. As this case demonstrates, many business premises and private dwellings are now equipped with CCTV cameras. That this is the situation is universally known. It would be impossible to frequent public areas without becoming aware of it. Over and above that, many vehicles are equipped with dash-cameras, and a high proportion of people are equipped with devices that allow them to take photographs or to record matters of interest. The comment that there can be no general expectation of privacy in a public place is not an unqualified one. While individuals may have no realistic expectation that their presence in a public place will not become public, they may well have an expectation that, in general, private, intimate, or sensitive conversations would not be recorded, certainly absent special circumstances or an appropriate authority.

147. That one’s presence in a public place may be recorded works to the advantage and disadvantage of individuals. If the individual recorded as being at a particular location is someone who is or has been or is about to become involved in criminal activity, that may be to the disadvantage of that individual, in one sense. In other cases, it may advantage an individual. In this case, there was a witness, AB, who, as the trial judge pointed out, was pleased that footage existed. The material available included footage showing him going in and out of his own home. On the part of the appellant, there was a suggestion that AB was involved in the killing or was present at the killing, but the availability of CCTV footage provided this witness with valuable cover.

148. In this case, the CCTV footage that was entered in evidence at trial was accessed as a result of requests to householders and businesses by gardaí, but it must be noted that there is nothing to suggest that the appellant was identified by any of the householders who provided the CCTV footage, or that any of those who made footage available might have identified the appellant as a data subject”.

154. There were also objections to other CCTV evidence in the Dunbar case which are not pertinent to the present case. However, in concluding the section

of its judgment dealing cumulatively with the various challenges to the CCTV evidence in that case, we further remarked:

“153. Overall, we are of the view that the challenge to the admissibility of the CCTV footage was not made out. It is, quite simply, misconceived. There was evidence there capable of being accessed which was highly relevant. In a particular case, it could advance the investigation, identify a suspect, and thereafter, provide relevant evidence at trial. In another case, the evidence might exonerate a suspect; indeed, in the present case, it has assisted a witness in rebutting unfounded allegations made against him. Consider what the situation would be if gardaí did not access evidence which had the potential to advance an investigation and contribute significantly to proving the guilt of a perpetrator, but which also had the capacity to exonerate a suspect who was innocent; how would the actions of the gardaí be regarded; could failure to access the material be regarded as anything other than a grave dereliction of duty?

154. We have no hesitation in dismissing this ground of appeal, and we would hope that in the future valuable court time would not be taken up with such unmeritorious arguments”.

155. In the Thompson case, we said:

“We are inclined to agree with the trial court that there was no breach of the appellant’s right to privacy at all, and that individuals walking down a public street, driving a car on the public road, or even eating a meal in a restaurant open to the public do not, in this day and age, have a reasonable expectation that their movements will be immune from CCTV observation, certainly in a situation where no individual is being targeted for the purpose of gathering information and where the camera is simply gathering random information about persons or vehicles in the location. That being so, it was not necessary for the trial

court to consider the principles applicable to the exclusionary rule (as discussed J.C., and more recently in Quirke).

90. If such an exercise had been required, significant factors in the balance would undoubtedly be that the degree of any privacy intrusion was minimal, that it arose from the conduct of private individuals (failing to register their systems with the Data Protection Commission)

and not from any conduct on the part of the State or its agents, and that the evidence was collected by the Garda Siochána in the context of a specific murder investigation. As the Director submitted, the situation is akin to that in People (DPP) v. Gold where the Court upheld the

decision of the trial court to admit evidence where the voice recording in question was created without any State involvement and where there was no suggestion that the State was complicit in unconstitutional actions taken by a private party to introduce evidence. However, in view of our agreement with the trial court that the appellant’s constitutional right to privacy was not violated by the CCTV recordings of him in public places, it is not necessary to consider the ‘balancing’ exercise in this case.

91. Accordingly, this ground of appeal is refused”.

156. In the present case there was nothing about the appellant’s presence in Dublin city centre, or on the Luas, or in Tallaght, or in any of the other places in which he was captured on CCTV, to suggest that he could have had a reasonable expectation, by virtue of being engaged in something private, intimate or sensitive in a public place, that he would not be recorded, on a non-targeted basis, while, for example, just walking down the street, standing on a station or travelling on a tram. We are completely satisfied that he had no expectation of privacy in the circumstances of this case, and that once he became a person of interest in connection with the investigation into the death of Mr. Bob it was both appropriate and justified that An Garda Síochána should seek to track and gather evidence with respect to his movements to the extent that they may have been serendipitously captured on CCTV systems

which were not specifically targeting him. We have no hesitation in dismissing this aspect of the challenge to the admissibility of the CCTV evidence”.”

167. We are not prepared to permit this matter to be re-opened in this Court, whatever happened in the trial court—the case was heard before Dunbar and the line of authorities following therefrom referred to above—these decisions are binding upon us in any event. This is so whether or not given arguments were advanced. As previously stated by this Court, it is to be hoped that in future this issue will not be pursued any longer.

Admissibility of DNA evidence from the Renault Kangoo Van and findings of fact Background

168. This common ground relates to the admissibility of the DNA evidence, specifically that of the victim’s DNA. Grounds 20-21 of Mr. Harte’s grounds, ground 11 of Mr. O’Brien’s grounds, and ground 21 of Mr. Redmond’s grounds refer.

169. Mr. O’Brien and Mr. Redmond have each filed grounds concerning the findings of the trial court regarding the DNA/blood found in the van, at grounds 27 of Mr. O’Brien’s grounds and 26 of Mr. Redmond’s grounds set out hereunder.

Admissibility

170. This issue concerns the admissibility of DNA evidence obtained from the Kangoo van, specifically a stain which subsequently matched the victim’s DNA profile.

171. The van was seized by An Garda Síochána on 23 October 2019. It was accessed by members of the National Surveillance unit on that night to remove a tracking device.

172. Technical examinations of the interior of the Kangoo van took place on 29 and 31 October 2019. The stain on the inside of the rear sliding door which was found to match the victim’s DNA profile was only observed during the second examination.

173. Detective Garda Cummins agreed in cross-examination that on 29 October, she carried out a visual inspection of the vehicle and swabbed all the areas which she thought were potentially significant. Two days later, Dr. Connolly pointed out brown-reddish marks which were not noticed by Detective Garda Cummins on 29 October. She disagreed that this was surprising as she found the van to be “pretty grubby on the inside”.

174. In his direct evidence, Dr. Connolly said that he used a specific test, that is a luminolbased reagent which reacts with a component within blood. This test is carried out in darkness, and the reagent will emit a blue-coloured light which allows the examiner to visualise the possible identification of blood.

175. Dr. Connolly worked in sections on the interior of the Kangoo van. An area on the interior sliding door to the cargo area of the Kangoo van gave a positive reaction using luminol. He then switched on his torch and saw an area which he described as red-brown staining. In cross-examination, he explained that the luminol had flagged the area and then his visual observation with the torch light showed a red-brown staining. The visual observation was not a luminol-generated exercise, and the point is made that this staining was in effect viewed with the eye alone and ought, if present on the first examination, to have been observed.

176. The witness was referred to a note made by a colleague of a conversation with Dr. Connolly on 12 November 2019 as follows:

“Blood-van-not blood-inconclusive-negative human blood-sent for DNA”.

177. The witness indicated that at that point he had carried out a KM test, which is a test that indicates the presence of blood, but is not determinative.

178. In further cross-examination, the witness confirmed that science does not permit a determination of how long DNA has been present on a particular item. In the present case, he stated that the issue of transfer could not be determined.

179. Black metal bars situated behind the driver’s seat also gave a positive reaction with the luminol test. Swabs were taken from the areas of interest identified by Dr. Connolly as a result of the chemiluminescence test by his colleague Detective Garda Ursula Cummins.

180. Regarding the sliding door, wet and dry swabs were taken which were tested in the laboratory. Dr. Connolly conducted an initial test to detect/confirm the presence of blood and then engaged in DNA profiling. He gave evidence that the major DNA profile from those swabs matched the reference profile of the victim.

181. Regarding the swabs taken from the metal bars, those were also examined and tests effected were indicative for the presence of haemoglobin. The witness then said he carried out DNA profiling on those swabs. Some were unsuitable for profiling: however, the DNA profile on other swabs matched the profile from Mr. Redmond’s reference DNA sample. The swabs were taken from four sections of the metal bars. The relevant evidence concerns a wet and dry swab taken from a horizontal bar behind the driver’s seat and labelled as ‘section D’. Detective Garda Cummins utilised a photograph which was furnished to this Court to illustrate the relevant section located on the horizontal bar above a mesh area and directly behind the driver’s seat. She labelled those swabs EUC25A and B.

182. The Kangoo van had no rear seats and the metal bars were situated behind the driver’s seat.

183. In re-examination of Dr. Connolly, he confirmed that he had received a request from two forensic scientists engaged by the defence, and he provided them with the material and relevant information, providing full access, to include his examination notes and DNA records. No further tests were requested of him.

184. He also explained the position regarding an indicative and determinative test and said that the standard test utilised is a KM test and, where that test provides a positive reaction and where there is sufficient DNA to generate a profile, this would indicate that the profile originated from blood. Specifically, regarding the swabs EUC28A and B from the sliding door of the Kangoo van, Dr. Connolly opined that given the provenance of the stain which tested positive for the indication of blood, and that he got a full DNA profile, this gave a high probability that it originated from blood.

185. Regarding the swabs EUC25A and B taken from the metal bars, he opined that given the positive indicative test and the quantity of DNA, that the probability was that it originated from blood.

186. When the presence of the victim’s DNA was put to Mr. Harte in interview, he expressed the view that there was something untoward in relation to this evidence, which was only located during the second examination. Solicitors for Mr. Harte engaged an expert to independently examine the evidence. Letters were written to that effect on 5 December 2019, 11 December 2019 and 12 January 2020.

187. Following a case conference on 11 December 2019, the Kangoo van was subsequently moved to another location, a scrap yard in Monaghan, on 12 December 2019. However, on 15 February 2020, there was an accidental fire at this location, caused by battery chargers for tools catching fire, leading to a fire which spread through the premises, causing damage to all vehicles therein, including the Kangoo van, which then could not usefully be examined.

188. Several issues arose in relation to the storage of the Kangoo van, including as to whether it was locked or unlocked while in secure storage, the fact that there was no CCTV covering the location in the storage facility, that individuals entering the facility were not logged, and that members of the NSU removed a tracking device from the vehicle on 23 October 2019, as this entry was not logged and only emerged during cross-examination at the trial.

189. At trial, Counsel for the appellants did not directly submit that the evidence had been planted in the Kangoo van; however, they contended that there was a reasonable doubt regarding the provenance of the evidence, referring to the fact that the bloodstain was not observed during the first search, despite the use of lighting, and raising several issues regarding the storage of the Kangoo van, and the possibility of interference with the Kangoo van while in storage.

190. At trial, Counsel for the respondent submitted that the evidence was of probative value, had been subject to scientific scrutiny, that the inability to conduct further examination was not caused by fault on the part of the State, and that additional examination would have been of little probative value.

191. Counsel for the respondent also sought to distinguish the present case from the cases of Kearns v DPP [2015] IESC 23 and Ludlow v DPP [2009] 1 IR 640, on the basis that two defence experts had been given the opportunity to review the material, and their questions were all answered by Dr. Connolly.

192. The trial court disagreed with the appellants’ submissions, ruling the evidence admissible:—

“[W]e are satisfied that notwithstanding the defects and some unsatisfactory aspects of the evidence, nonetheless the evidence should be available for consideration in the case and is so available because it is admissible because the defects identified are not so fundamental as to render the evidence completely worthless. It must be considered in the context in which it arose and in the light of all of the other evidence in the case. So the evidence remains admissible.”

193. In its final verdict, the court rejected the notion that the evidence was planted, calling it: “farfetched to say the least”.

Grounds of Appeal—Admissibility of DNA Evidence Mr. Harte—Grounds 20 and 21

194. Grounds 20 and 21 of Mr. Harte’s appeal read as follows:—

“20. The learned trial Judges erred in refusing to attach any significance to the fact that the integrity of the Renault Kangoo was not maintained for the purposes of considering any forensic evidence emanating from that vehicle.

21. The learned trial Judges erred in refusing to exclude as inadmissible the evidence obtained from the examination of the Renault Kangoo Van, specifically that blood and DNA matching that of the victim was found therein, to advance the proposition that the victim’s blood had been secreted in the van by those who had committed the offences, in circumstances where by failing to properly preserve the said vehicle and make it available for examination, the defence had been deprived of the reasonable opportunity of rebutting that proposition.”

Mr. O’Brien – Ground 11; Mr. Redmond – Ground 21

195. Ground 11 of Mr. O’Brien’s appeal and ground 21 of Mr. Redmond’s appeal read as follows:—

“11. The Special Criminal Court erred in fact and in law in refusing to rule inadmissible the evidence arising from the examination of the Renault Kangoo Van, (“the Van”) in particular the evidence as to finding in the Van, material suggestive of blood and DNA matching the DNA of the victim, consistent with the proposition that the Victim’s blood had been deposited in the Van by those who had carried out the offence, at the time the offence was carried out; having regard to all the circumstances, in particular having regard to the fact that by failing to preserve the said Van and make it available for examination, the defence had been deprived of the reasonable opportunity of rebutting that proposition.”

Appellants’ Submissions

196. The three appellants contend that the DNA evidence obtained from the Kangoo van should have been excluded from the trial on the basis that the integrity of the Kangoo van was compromised due to deficiencies in its storage and preservation while in Garda custody, and that the appellants were prejudiced because they were denied the opportunity to examine the Kangoo van. In essence, they contend that the accumulated errors and failings ought to have led the trial court to exclude the evidence. Each appellant adopts all submissions made by their co-appellant.

197. The appellants have submitted that there was a reasonable doubt as to the provenance of the DNA evidence due to the following:

(1) There was no CCTV of the storage facility;

(2) No log maintained of those who accessed the Kangoo van;

(3) Members of the NSU accessed the Kangoo van without that access being logged;

(4) The different accounts at trial as to whether the Kangoo van was locked or unlocked;

(5) The bloodstains from which profiles were generated were not noticed during the first forensic examination.

(6) The insufficiency of the swabs taken.

198. While the appellants have not submitted that the Kangoo van was maliciously destroyed, they argued that the vehicle was stored in an unsatisfactory environment leading to its destruction by fire, causing a profound unfairness to the defence. The appellants contended that this deprived the defence of the opportunity to test the evidence and of a realistic opportunity to assist their position, to such a degree that the evidence ought to have been excluded.

199. The appellants argued that Dr. Connolly should have taken more than a single swab of the sample and the failure to do so further impeded the defence’s ability to test the evidence.

200. Counsel have submitted that they lost the opportunity to engage their own expert and inspect or challenge the presence of DNA in the Kangoo van due to its destruction.

201. Counsel for Mr. Redmond made the point that the trial court’s conclusion that the position in which the DNA was found was consistent with Mr. Redmond making himself comfortable in the back of the Kangoo van in a specific way could not be tested due to a lost opportunity to test the bars with sufficient granularity to determine the exact part of the bar from which the DNA was obtained. Counsel has submitted that this is of significance because further testing of the bars could have determined that the DNA was present in a location more consistent with a secondary transfer, as opposed to a primary transfer which was the prosecution case.

202. Further, Counsel has submitted that Mr. Redmond was not informed of the presence of his DNA in the Kangoo van in Garda interviews, and the prosecution case on this point only became clear in their closing speech, further underlining the significance of the lost opportunity to engage his own expert prior to the destruction of the Kangoo van.

203. The appellants place reliance upon the cases of DPP v AMcD [2016] 3 IR 123, Byrne v DPP [2010] IESC 54, Murphy v DPP [1989] ILRM 71, and Ludlow v DPP.

Respondent’s Submissions

204. The respondent has submitted that there is no evidential basis for the appellants’ contention that the blood was somehow planted into the Kangoo van between the two examinations. Counsel for the respondent asked rhetorically, why such malicious actions would not have been taken prior to the initial examination.

205. The respondent has submitted that the various issues raised in relation to the storage of the Kangoo van cannot underpin an argument that the DNA was somehow deliberately placed in the Kangoo van, and that the various issues can only go to weight and not admissibility.

206. The respondent refers to the evidence of Detective Garda Cummins, who conducted the first of the technical examinations of the Kangoo van, where she stated, in response to a question from Counsel, that she was not surprised that she had not noticed the marks as the Kangoo van was: “pretty grubby on the inside”.

207. The respondent has submitted that Detective Garda Cummins and Dr. Connolly, who conducted the second examination, brought different levels of expertise and equipment during their respective examinations, with the latter deploying a technique not used by the former, using a luminol spray, which brought his attention to the area of the Kangoo van where he found the stain.

208. The respondent has also rejected the contention of the appellants that the destruction of the Kangoo van prejudiced their case, submitting they were not materially disadvantaged in any way by the destruction of the vehicle.

209. The respondent has disagreed with the contention of the appellants that the correspondence indicating an intention to seek to examine the vehicle was sent and received in December 2019, and, notwithstanding that, the respondent has submitted that the Kangoo van was available for inspection up to its destruction through accidental fire in February 2020. The respondent has submitted that agents of the State did not act negligently or cause the accidental fire which destroyed the vehicle.

210. The respondent has noted that additional profiles could have been taken which could have yielded different results, but has submitted that this does not diminish the evidential value of the profile of the injured party being present in the Kangoo van. The respondent has also noted that no expert defence evidence challenging the accuracy of the profile, or that such a challenge could have been mounted but for the Kangoo van being destroyed, was ever called.

211. On the issue pertaining to Mr. Redmond’s DNA, the respondent has noted that this issue was not emphasised in the Grounds of Appeal, but was argued at the oral hearing. Counsel for the respondent has submitted that an inability to locate the DNA to a particular portion of the bar does not materially disadvantage Mr. Redmond. The respondent has argued that the court of trial independently determined that Mr. Redmond was in the rear of the Kangoo van on 17 October 2019 on the basis of other evidence, and that therefore whether the DNA came to be on the bar by way of primary or secondary transfer was not of any real significance.

212. The respondent places reliance on the cases of The People (DPP) v McHugh [2024] IECA 176 and DPP v O’Neill & Others [2024] IECA 204 in submitting that the matters in issue go to weight, and not admissibility.

Discussion

213. In submission, this Court was told that while the Kangoo van did not play a direct role in the kidnapping itself, its use was in the manner of a support vehicle to convey persons to relevant places.

214. The Kangoo van was of undoubted importance to the respondent’s case and the forensic material yielded was highly relevant, probative evidence. We commence our discussion by observing that evidence which is relevant is admissible unless there is a rule of law which renders it inadmissible (McHugh). Relevance is the touchstone of admissibility. The finding of the victim’s DNA from swabs taken from the sliding door of the vehicle, which swabs were found on initial analysis to be indicative for blood, was clearly relevant evidence.

215. A distinction must be drawn where an issue arises as to the manner of gathering evidence, which may be the subject of a voir dire, and the factual assessment and the weight to be attributed to the evidence, which cannot be the subject of a voir dire but is a matter for assessment by the fact finders.

216. Insofar as admissibility is concerned, it is contended by each of the appellants that the trial court erred in failing to exclude the DNA evidence relating to the finding of DNA matching the victim’s profile on the sliding door of the Kangoo van due to cumulative issues affecting the integrity of the Kangoo van, including its storage; access to it; whether the Kangoo van was locked or unlocked while in Garda custody; the loss of opportunity to conduct an independent forensic examination of the Kangoo van; the fact that the brownish stain was not observed during the first examination; and the contention of insufficiency of swabs.

217. On the latter issue, the appellants contend that as the Kangoo van was not properly preserved and available for inspection, they were denied the opportunity to rebut the respondent’s proposition that the swab constituted material suggestive of blood and a match to the DNA of the victim, and that the victim’s blood was deposited by those who carried out the offence on the date of the offence. Each appellant contended that the consequence of the inability to examine the Kangoo van breached the constitutional right to a fair trial. However, it is said that whilst the integrity issue and the ability to examine the Kangoo van, and thus seek to rebut the respondent’s case, are separate, they are part of a continuum and so the argument is put forward on a cumulative basis.

218. Counsel for Mr. O’Brien set out three matters:

• If the stain was the victim’s blood, it was deposited by way of secondary transfer, as the victim was never in the Kangoo van;

• It was not observed in the first examination, and;

• Consequently, there are reasonable grounds for a concern that the stain was not present during the first examination.

219. The suggestion is that as the integrity of the Kangoo van is said not to have been maintained, in that the storage could not be said to be secure, the possibility of depositing the material after the first examination cannot be ignored.

220. Counsel also contended that if there were a greater number of swabs taken, this would have permitted for further examination, perhaps of other persons’ DNA.

221. Therefore, the ability to examine the Kangoo van by defence experts was crucial.

Integrity of the Kangoo Van

222. There is an onus on the respondent to establish the provenance of evidence relied upon to the required standard of proof. We repeat that relevant evidence is admissible unless there is a rule of law which provides otherwise. The question is whether there is some issue of such concern regarding the gathering of the trace evidence, which is such so as to exclude that evidence.

223. It is quite clear that there was no CCTV covering the area where the Kangoo van was being kept. It is also clear that the Kangoo van was accessed by members of the NSU shortly after it was seized and whilst in Garda custody. It is the position that the evidence was unclear as to whether the Kangoo van was locked or unlocked, and it does not seem that there was a record kept of those accessing the area where the Kangoo van was kept. These are the issues impacting on the integrity of the secure maintenance of the vehicle.

224. We believe that the above matters are certainly flaws in the process. It would of course have been preferable if there was CCTV, a log of those who accessed the vehicle, and that the vehicle was locked. However, it was maintained in an area of Garda custody, and no suggestion is made that a member of the public accessed it. So, while it was certainly suboptimal regarding the absence of the above matters, none of those factors in and of themselves constituted a concern sufficient to deem the evidence inadmissible, and we find no error in the trial court’s ruling in this respect.

225. We understand that the issue raised is one of an accumulation of factors and so we now turn to the issue of the failure to observe the stains on the first examination.

The Inspection of the Kangoo Van

226. We have set out the background in some considerable detail insofar as the evidence adduced on the examination of the Kangoo van is concerned. What is clear is that the first examination was conducted by experienced members of An Garda Síochána technical bureau and the second examination was again conducted by members of An Garda Síochána, in conjunction with Dr. Connolly, a forensic scientist, from Forensic Science Ireland. All persons are undoubtedly highly qualified, but it is instructive to scrutinise the way in which the stain on the sliding door came to light.

227. Dr. Connolly explained that he effected a cursory examination of the Kangoo van for health and safety purposes before darkening the interior and using luminol spray. This then showed areas of interest. He then used his torch and could visibly see an area of staining on the sliding doors because it was located on the metal. Effectively, the luminol flagged the area and then his visual observation with the torch showed the red-brown staining. Therefore, the visual observation was not based on the use of the luminol, and he stated that the stain was clearly visible to his eye.

228. When Detective Garda Cummins gave evidence, she said it was not surprising that this staining was not observed during the first examination as the interior was grubby and there were other marks. The technical team used high intensity torches in their examination.

229. The respondent placed great emphasis on the use of the luminol test which flagged the area to Dr. Connolly, and says that Detective Garda Cummins was not surprised that Dr. Connolly’s examination discovered marks that had not been seen in the first examination. She was of the view, as stated, that the Kangoo van was grubby and that there were marks everywhere. Detective Garda Frazer, who examined the Kangoo van for finger marks gave evidence that much of the interior was contaminated with dirt.

230. The suggestion is made that either the material was placed there deliberately or that it occurred as a result of an inadvertent secondary transfer.

231. The trial court ruled as follows on that aspect:

“The final issue then is the question of whether these substances were deliberately or accidentally placed in the rear of the van at some time after the 23rd of October. It is not suggested that there is any particular scientific test that could cast any light on that, or at least that's not our understanding of the suggestions made. So this is a matter for evaluation by this jury or, as it would be, by any jury in the context of all of the evidence in the case. If it's reasonably possible on the evidence that such accidental or deliberate contamination or transfer took place, well then the evidence cannot be relied upon, but this cannot be dealt with in a vacuum as has been previously stated. As to the issue about Detective Garda Cummins and the deficiencies or otherwise of her examination on the 29th of October, that does not determine conclusively whether the stain was actually there or not at the time of her examination. That is a matter to be established when her evidence is evaluated along with all the rest of the evidence in the case.”

232. In general, proof at all stages of a trial remains on the prosecution. The trial court found that any alleged deficiencies in the first examination did not conclusively determine whether the stain was present or not at the time of the first examination. Whilst it may be said that there were deficiencies in the maintenance of the Kangoo van when in Garda storage, this does not mean that the first examination was incompetent or that the material was placed there either deliberately or accidentally. Whilst the marks were clearly overlooked in the first examination, they were observed in the second examination, therefore the evidence was found and produced.

233. The suggestion of deliberate tampering with the evidence was speculative and predicated only on the fact that the marks were not observed during the first examination. The more obvious explanation is the simple one: that the technical team, absent the use of luminol, did not have their attention drawn to the marks.

234. The proposition of inadvertent secondary transfer would require the transfer of the victim’s blood from members of the technical bureau. It seems from the evidence that Detective Gardaí Cummins and Frazer examined a lockup in Co. Cavan on the 22 September, whereas the examination of the Kangoo van took place on the 29 and the 31 October, so that suggestion appears remote.

235. We are satisfied that the trial court did not err in its determination on this aspect of the issue. There was no evidential basis that DNA from the victim was placed deliberately or accidentally in the location in issue.

Inadequate Swabs/Lost Opportunity to Examine the Kangoo Van

236. The appellants contend that if a greater number of swabs were taken from the relevant areas that further and additional DNA profiles could have been generated. If additional swabs had been taken, then the defence would have had the opportunity to examine those swabs, which was particularly pertinent given that the Kangoo van was ultimately destroyed by fire. It is also said that the lost opportunity to independently examine the Kangoo van rendered the trial unfair, and that the fairness of the trial could have been maintained if the DNA evidence had been excluded.

237. Counsel for Mr. O’Brien contended that if the stain in issue was in fact the victim’s blood, it was deposited by way of secondary transfer. Secondly, that Dr. Connolly’s evidence was to the effect that he would have expected the stain to be seen on a careful observation. Thirdly, that there are reasonable grounds for a concern that the stain was not actually present on the first date of examination.

238. Given those suggestions, it is argued that the appellants had a particular interest in establishing whether there were any additional DNA profiles discernible from that stain. An example is given that if the DNA of a member of An Garda Síochána was generated, then that would have assisted the defence in pointing to innocent contamination. Whilst the issue of deliberate planting of evidence was never actually put forward by the defence at trial or at hearing before this Court, the possibility of this, it is said, could not be excluded, and it was accordingly submitted that the evidence ought to have been excluded to ensure a fair trial.

239. The primary submission made is that if the appellants were in a position to conduct an independent examination, that examination may have yielded evidence which could have assisted in shedding light on the question as to whether the stain was present or not on the first examination.

240. Counsel for Mr. O’Brien contended that the appellants lost a realistic opportunity to assist their position on an important issue and relies on the evidence of Dr. Connolly in support of the argument. It is said that the trial court did not engage with this argument.

241. Again, where the submissions made were relevant to an appellant, such were adopted by each appellant.

Portions of Dr. Connolly’s Evidence

242. Counsel for Mr. O’Brien relies on Dr. Connolly’s evidence in cross examination, in particular:—

“Q. I'm sorry, you just indicated there, Dr Connolly, that from one particular test, you could form an expectation that there was human blood in the stain; is that correct?

A. Yes, it's an expectation, yes.

Q. Yes, and obviously that's an implicit recognition that there could have been other substances in the stain as well; isn't that correct?

A. Yes.

Q. And that's something which could have been checked if the stain had been preserved and further swabs and examinations carried out on the substance;

isn't that correct, potentially at least?

A. Yes, there's the limited number of tests because you can't actually test for let's say cellular touch DNA, so there's tests for body fluid such as blood, saliva.

Q. Yes, yes, but presumably if an investigation were carried out and there was an opportunity to have a full test of the totality of the stain, there is the potential there that other materials quite apart from bodily fluids, might have been discernible, any other chemical compounds that aren't associated with bodily fluids; is that correct?

A. So a non-body fluid DNA source?

Q. No, no, the point is that the test just -- the swab just indicates that there's DNA within the material that was lifted from the substance?

A. Yes.

Q. That means that there was some DNA material in the substance, you have an expectation that part of the substance was blood?

A. Yes.

Q. That's an expectation, but that's an implicit acknowledgement that there could have been other substances not just other bodily fluids, but all kinds of substances, dirt and all kinds of other substances might have been amongst that stain; isn't that correct?

A. Yes.

Q. Thank you?

A. So you could never be -- yes, I wasn't being categorical in what I said.

Q. No, that's fine?

A. It's the probability, yes.

Q. That's fine, and just to make clear, the defence on behalf of Mr O'Brien adopts a rigorously sceptical approach in all of your evidence, but with full respect to you as an expert?”

243. In essence, the appellants contend that the absence of the Kangoo van due to its destruction in the fire has meant that an independent examination could not be conducted by the defence.

Conclusion: Inadequate Swabs Taken and Lost Opportunity

244. A trial court has an overarching obligation to ensure that a trial is conducted in due course of law under Art. 38.1 of the Constitution, and so a court may exclude evidence which may prejudice the fairness of the trial.

It is accepted that the Kangoo van was damaged accidentally. This was indeed an unfortunate event which led to the defence teams being unable to independently examine it. The number of swabs taken is a matter of fact.

This does not detract from the crucial points however, and that is that a match to the victim’s DNA was located within the interior of the Kangoo van, and that two defence experts engaged with Dr. Connolly, received his material, and requested no additional tests or information.

245. It is not a situation akin to that which arose in either Ludlow or Kearns, where in the former the vehicle in question was returned on the date of the accident, and in the latter, there was a failure to photograph a fingerprint in situ.

246. The Kangoo van was forensically examined, and the process of examination was made available to the defence experts, and it appears there was no quibble with the process in which Dr. Connolly engaged.

247. The fact that additional swabs may have yielded DNA from other persons does not advance the defence case to such a degree so as to require the exclusion of the evidence, as a match to the victim’s DNA remained present in the location in question.

248. The suggestion of the finding of a profile matching a member of the technical bureau is, in our view, an unlikely one, but even if possible, it would not cast the kind of doubt as to the reliability of the evidence to the degree of exclusion.

249. Even if the DNA of a member of the technical bureau were generated, this would not answer the question as to why the stain was not seen on the first occasion, it would simply mean that a member of the technical bureau’s DNA was found. We do not find merit in this contention.

250. The suggestion that additional profiles may have been found, in reliance on the evidence of Dr. Connolly, may of course be accurate, but it does not detract from the fact that a match to the victim’s DNA profile was generated from the location of the sliding door in the interior of the Kangoo van. Nor does it detract from the highly probative evidence so generated. We repeat that no expert challenged the process of analysing the stain or the manner in which the profile was generated.

251. It, of course, goes without saying that it would have been preferable if the Kangoo van were available for inspection, and that the security systems of the locations where the Kangoo van was kept should have been more intense and transparent, including CCTV footage and the manual recording of those entering and exiting. However, these are observations, and these deficiencies, as we have stated, do not require the exclusion of the evidence.

Mr. Redmond: Lost Opportunity

252. Counsel on behalf of Mr. Redmond advanced an oral argument on appeal regarding the issue of loss of opportunity, which he says created an even greater level of prejudice to his client. Due to the destruction of the Kangoo van, he could not independently examine the bars to determine the exact part of the bar from which a match to Mr. Redmond’s DNA was obtained. Counsel submitted that this is of significance because further testing of the bars could have determined that the DNA was present in a location more consistent with a secondary transfer, as opposed to a primary transfer which was the prosecution case. Moreover, if the appellant had been in a position to examine the bar, then it is said it may have been established that the DNA was located on either end of the bar or underneath the bar or in some area more consistent with a secondary transfer. Due to the absence of an independent examination, the respondent was in a position to contend that the appellant held the bars on the return journey to Dublin and the appellant was denied the opportunity to cast doubt on that suggestion. The respondent’s suggestion as to the value of this evidence only became apparent during closing argument.

Discussion and Conclusion

253. It appears that the entire bar was swabbed and as a result of the destruction of the Kangoo van, Mr. Redmond could not ascertain the precise location of the finding of the material which was indicative for blood and transpired on analysis to match Mr. Redmond’s DNA profile.

254. The complaint is made that if examination had been possible, then the location of the DNA could have pointed towards secondary transfer. Counsel on behalf of Mr. Redmond has argued that he suffered severe prejudice as a consequence.

255. This argument was not part of the admissibility argument as such, as the significance of this evidence only became apparent at the concluding stages of the trial. Counsel contends it underlines the unfairness that the admission of the evidence caused to his client.

256. We repeat that it would of course have been preferable if the Kangoo van had been available for inspection. However, this does not remove or diminish the fact that this evidence was discovered which connected Mr. Redmond to the Kangoo van.

257. Whilst this aspect of the issue may be more related to the findings of the court rather than admissibility, we are not persuaded that there arose an unfairness which ought to have led to the exclusion of the evidence.

258. Insofar as the findings of the court are concerned with the presence on the bar of DNA which contained a match to Mr. Redmond’s DNA, we address that hereunder.

Determination on Admissibility

259. We are not persuaded, either on any independent issue raised as to the integrity of the Kangoo van, or the quantity of swabs taken, or the lost opportunity to examine the Kangoo van independently, or on any other issue raised when taken separately or cumulatively, that the trial court erred in deeming the DNA evidence admissible.

260. Accordingly, these grounds of appeal fail.

Findings of Trial Court Regarding Aspects of the DNA Evidence Mr. O’Brien—Ground 27 Mr. Redmond—Ground 26

261. Grounds 26 and 27 respectively reflect a common ground which relates to the findings of the trial court in relation to the DNA evidence, specifically: the finding that the stain in which the victim’s DNA was found was blood; and the finding that the stain had been deposited there due to contact with the surface on the night of 17 September 2019, and/or had not been deposited after the Kangoo van was seized by the Gardaí or otherwise between 17 September and the date of seizure. Counsel for Mr. Redmond also has submitted that there was no evidence as to the location of the DNA which was a match to his on the metal bar in the rear of the Kangoo van, and in finding that the presence of his DNA was as a result of direct contact.

Appellants’ Submissions

262. The submissions made by Mr. O’Brien are fundamentally the same as those on the admissibility issue as he disagrees with the findings of the trial court that the stain was blood, and when it was deposited in the Kangoo van, and so we do not rehearse them. He contends that even if the DNA evidence were admissible, the trial court was incorrect to find as a fact that the substance had been present in the Kangoo van prior to its seizure on 23 October where there was a legitimate question as to its presence during the first examination.

263. Counsel for Mr. Redmond has submitted that the court erred in its verdict and findings in relation to the DNA evidence which was a match to Mr. Redmond’s DNA, recovered from the bar of the Kangoo van on the following bases: the court failed to account in its verdict for the period of time the Kangoo van had been in Ireland prior to the offence and the possibility of DNA transfer at this time; the court failed to account for the extended presence of the Kangoo van in proximity to Mr. Redmond’s residence following the offence date.

264. At oral hearing before this court, it was also contended by Counsel for Mr. Redmond that that the trial court erred in finding that the stain on the door and the stain on the bar, from which DNA samples were extracted matching the victim and Mr. Redmond respectively, were in fact blood stains at all. It was submitted that while there was indicative testing that these stains were blood, there was no certainty as to this fact beyond a reasonable doubt. Counsel for Mr. O’Brien made the same submission in relation to the stain on the door.

Respondent’s Submissions

265. The respondent has submitted that the explanation favoured in the verdict for the presence of a match to Mr. Redmond’s DNA on the bar in the Kangoo van is entirely rational and compelling, and consistent with the evidence.

266. Counsel for the respondent has noted that the direct transfer explanation accepted by the trial court is consistent with him holding the bar in an “entirely natural” position as the front two seats were occupied, and there was no seat in the rear of the Kangoo van. The respondent has noted that Mr. Redmond’s phone’s movements were consistent with him being present for the duration of the Kangoo van’s journey on 17 September.

267. It is also said that while it has been suggested that there may be an innocent explanation for the presence of a match to Mr. Redmond’s DNA in the Kangoo van, such an innocent explanation is not actually articulated by Mr. Redmond or evidenced in the case. The respondent submitted that the mere presence of the Kangoo van in the area that Mr. Redmond lived on the day following the offence does not provide such an explanation, in the absence of any evidence that he or someone he was in contact with accessed the Kangoo van during that time.

Discussion

268. We start by stating that the evidence against each appellant was circumstantial where the probative force of each piece of evidence is determined in conjunction with the other evidence. How circumstantial evidence should be treated by a court was considered in People (DPP) v Cumberton [2020] IECA 136 (Edwards J) and is set out in detail in the section in this judgment on the verdict. Suffice to say that if a trial court finds a strand of circumstantial evidence prima facie credible and reliable, its relevance and significance can only be properly assessed when considering all the other evidence in the trial. Where the prosecution case rests entirely on circumstantial evidence, it is this combined force which provides strength to circumstantial evidence, and the evidence when considered in its entirety must be consistent with guilt and inconsistent with any rational hypothesis consistent with innocence. (The People (AG) v McMahon [1946] IR 267).

269. The trial court considered the evidence as a whole and the inferences to be derived following findings that certain facts had been established in evidence. The court found that the evidence proved that the area of staining found on the inside of the sliding door of the Kangoo van was the victim’s blood and went on to draw the following inferences:

“It was clear that [the victim] was bleeding profusely after his ordeal and was in close proximity to his attackers during that ordeal up until he was man handled and deposited from the transit type van at the end. As he was not transported in a small van, an obvious origin for the stain found by Dr Connolly was secondary contact with the door surface by somebody in the back of the van who had recent contact with a bleeding [the victim].”

270. The trial court then went on to consider the issues raised during the voir dire to exclude the DNA evidence and stated inter alia:

“We have considered all aspects of the probable provenance of this stain and are satisfied that there is no reasonably possible alternative for the obvious explanation set out above. Although the criticism by Mr O'Higgins of the record keeping methods and lack of CCTV at Santry was well made, nonetheless we do not see room for inferring that the evidence was planted either there or elsewhere between the 17th of September and the 23rd of October before the van was taken into garda custody.”

271. The court was satisfied that there was overwhelming evidence that the Kangoo van was used in connection with the offending of 17 September and considered the history of its recent purchase and transportation to this jurisdiction. Moreover, the court was satisfied that the Kangoo van was involved in the offending not only by virtue of the finding of the stain in the interior matching the victim’s DNA, but also by virtue of large red lightening marks on the sides of the Kangoo van.

272. The court continued to consider the issues raised and found:

“We are satisfied that the substance found by Dr Connolly in the van had been present there since contact with the surface of that door on the night of the 17th of September.

There is no other plausible or sensible interpretation of the evidence. If this van had never been recovered or forensically examined there would have been abundant evidence to find that it was centrally involved in these crimes. The finding of [the victim]'s DNA simply copper fastens what is already evident”.

Mr. Redmond’s DNA

273. In respect of EUC25A and B, swabs from section D of the bar, the court found that: “tests indicated the presence of blood” and yielded a major DNA profile matching Mr. Redmond. The court also found that Mr. Redmond was carried away in the cargo area of the Kangoo van.

274. With regard to the significance of the presence of a match to Mr. Redmond’s DNA on the bar of the Kangoo van, the trial court recounted the CCTV evidence of his movements at the relevant times in the company of other participants and found:—

“There is no evidence or suggestion that Mr Redmond left that area by any means other than in the Kangoo driven by the man in whose company and residence he had been that morning. He was not seen leaving by the conventional route that Mr Donnery used a short time later or that he himself had used a short time before. The prosecution hypothesis that he left in the van was not contradicted by evidence, suggestion or submission…. Crucially, he was also recorded by camera number 10 returning across the entrance lobby with Mr Harte at 00:10 hours the next morning. Both men were dressed in the same clothes as they were recorded in nine hours earlier. This critical fact was not addressed at all in the closing of Mr Redmond's case. We are satisfied that no inference is available other than that he departed from and returned to the apartment block in tandem with Mr Harte.

It therefore follows that we are satisfied that Mr Redmond was carried away in the cargo area of the Kangoo because we are satisfied that Mr O'Brien was the passenger in the "Under Armour" t-shirt and Mr Harte was the driver in the white top. The finding of matching DNA on the bars behind the driver is significant in this regard. One of the purposes of those bars would appear to be support for a passenger located in the cargo area. Of course, the times and the means of which the matching DNA came into contact with the bars cannot be known with precision. The contact by which it was placed there was unlikely to have occurred before the van came to Ireland. What must be assessed in all such cases is the level of expectation of finding matching DNA where it is located. In this case there will be no realistic expectation of finding matching DNA unless Mr Redmond had been in the back of the van and came into direct contact with the bars. Dr Connolly established that the DNA was found within a bloodstain on the surface of the bars that was swabbed when the Kangoo was recovered and examined. We do not think that there is any sensible reason to believe that matching DNA was deposited on that surface by some means other than direct contact. Direct contact with this van at any time after it was brought into Ireland by Mr McGuinness would necessarily invite close and sceptical scrutiny, given the provenance and purpose of the importation of the Kangoo. Indeed, Mr Bowman was careful to avoid any suggestion that Mr Redmond was ever legitimately in direct contact with these bars.

The alternative hypothesis that he proposed for our consideration was based on a reasonable possibility that the matching DNA was there by reason of a secondary transfer mechanism. In that context Mr Bowman referred to the fact that there was evidence that the Kangoo was left unlocked near the accused's home. We have considered the suggested possibility and reject it as a reasonably possible inference from the evidence. Perhaps understandably, Mr Bowman did not elaborate on his suggestion or offer any example of a route by which a secondary transfer of DNA might have been effected. It seems to us that this hypothesis necessarily involves accepting that Mr Redmond deposited his DNA on some other person or object which was later brought into contact with the bars in the van while it was left unlocked and unattended close to Mr Redmond's home. Mr Redmond would have to have been unfortunate indeed if out of all of the possible surfaces available for secondly DNA transfer in the Dublin area, the matching DNA was transferred to the interior of the same van used by his acquaintance Mr Harte to drive up and down to Cavan on the 16th and the 17th of September. We consider that when this proposal is subjected to rational analysis it must be found to be manifestly untenable. The finding of matching DNA in the back of this van would hardly be expected at all unless Mr Redmond had been there himself at some stage, as is suggested by the CCTV evidence and there is no evidence or suggestion of any other occasion when he might have been innocently present in that van.

We are satisfied that the matching DNA profile obtained by swabbing in this case is a circumstance that strongly supports the interpretation of the CCTV evidence that puts Mr Redmond in the back of that Kangoo on the 17th of September. It is wholly consistent with the case that he left Dublin in the Kangoo by arrangement with Mr Harte to play some part in the crimes contemplated on that day. The circumstantial evidence now shows an unequivocal pattern consistent only with guilty involvement to some extent in this enterprise. We do not believe that it is necessary to dwell at length on the balance of the evidence in this case in the light of the strength and weight of the first two strands.” [our emphasis]

Conclusion

275. The trial court properly applied the relevant principles regarding a consideration of circumstantial evidence.

276. The findings at which the trial court arrived were undoubtedly available to it on the evidence; that the stain on the sliding door of the Kangoo van was blood, that it was the victim’s blood, that it was deposited there on the relevant date and not at a later time. The court was fully entitled to draw the inferences it did on a consideration of the united strands of evidence.

277. Insofar as Mr. Redmond’s argument is concerned, it is not the position that the court of trial did not consider alternative possibilities as to how his DNA ended up on the horizontal bar of the Kangoo van after it arrived in this jurisdiction in August 2019. The court considered this strand of evidence in conjunction with the other strands of circumstantial evidence as set out above, which included a consideration of the CCTV and call data evidence, and concluded that it was manifestly untenable that his DNA came to be on the bars on different dates by secondary transfer. This inference was clearly open on the evidence, and we do not find that the court erred in this respect.

278. The strands of circumstantial evidence cannot be considered in isolation. The correct approach to circumstantial evidence is stated in Cumberton:

“while no piece of circumstantial evidence may be sufficient on its own to justify and inference that the accused is guilty of the crime with which s/he has been charged, the cumulative effect of several pieces of circumstantial evidence may, in an appropriate case, justify such a conclusion.”

279. The appellants’ argument contends for an examination of each separate fact and inference in isolation and this is the primary problem with the submissions made by Mr. O’Brien and Mr. Redmond in this regard.

280. The probative value of a piece of indirect or circumstantial evidence must be considered in conjunction with all the other evidence in a case, and so, even if a single strand does not when taken in isolation prove a fact in dispute, when combined with the other strands of evidence, the necessary standard of proof may be achieved.

281. We are satisfied that the court of trial considered the evidence in great detail, analysed each fact, found certain facts were established on the evidence and then combined those strands of evidence from which it drew legitimate inferences.

282. Accordingly, we reject these grounds of appeal.

Arrest of Mr. Redmond

283. It is contended on Mr. Redmond’s part that the entry into his dwelling was unlawful and, as a consequence, his arrest similarly so. Accordingly, what flowed viz his detention for the purpose of investigating the offence for which he was arrested and all that transpired during the course thereof have given rise to a breach of his constitutional rights, and the evidence derived from the search ought to have been excluded.

284. The ground of appeal put forward by Mr. Redmond in this regard is as follows:-

“20. The Special Criminal Court erred in finding that the arrest of the Appellant at his dwelling was lawful, in circumstances where the Gardaí had failed to invoke a power of entry into the dwelling for the purpose of arresting him.”

285. The evidential basis for entry into the dwelling and the subsequent arrest is to be found in the evidence of Detective Sergeant Sharon Walsh. She attended with colleagues at the appellant’s home on 21 November 2019 for the purpose of arresting him for an offence under s. 73 of the Criminal Justice Act 2006 (as amended).

286. She attended at the address with colleagues at approximately 7 a.m. on the date in question, but Mr. Redmond was not in the premises—she was so informed by the appellant’s father. She informed the latter that she and her colleagues were looking for the appellant and that they had power under s. 6 of the Criminal Law Act 1997 (as amended) to go into the house and look for him because they knew that he normally resided there.

287. On visiting the premises for the second time at around 11 a.m., she spoke to Mrs. Redmond (in the sitting room of the house), and Mrs. Redmond indicated to Sergeant Walsh that her son was upstairs in his room. When she had done so, the Gardaí went upstairs: Sergeant Walsh denied the proposition that the Gardaí ran upstairs before that conversation; as Gardaí were there earlier she believed that Mrs. Redmond knew that the Gardaí were looking for her son. When the Gardaí arrived, they were allowed in. She put it thus: “There was no issue whatsoever. I remember speaking to Mrs Redmond in the sitting room and she indicated her son was upstairs in his bedroom.” She also stated that: “… but we were more or less invited in. There was no issue.”

Discussion and Determination

288. The trial court reached conclusions of fact, and the relevant passages of the ruling in that regard are as follows:

“There is another important difference, and that is that the gardaí initially attended at the premises just after 7 am that morning, some four hours or so before the arrest was actually effected. Sergeant Walsh was of the opinion that as a result of that visit "the people in the house were fully aware" of her purpose. That's a reference that's made at line 19, page 47, of the transcript of the 20th of July. The … evidence in relation to the first visit is that the doorbell was pressed and was answered by Mr Redmond's father on that [occasion], she says, and we accept … her evidence that there was a conversation of this kind which wasn't contradicted by evidence that she indicated that she was looking or that … she was there with colleagues were looking for Mr Redmond, and she informed the occupant to whom she spoke of her power under section

6 of the Act to go into the house and look for him because they knew he normally resided there.”

And continued:

“The gardaí left the premises without entering, and there's no suggestion that they did, on the basis that it appears that Mr Redmond was not present on the premises on that occasion. They adjourned and made inquiries elsewhere, returned at 11.05 am or so, and on that occasion we are satisfied that Sergeant Walsh spoke to a lady who was Mr Redmond's mother. She was informed by Mr Redmond's mother that her son was present and indeed was upstairs on that occasion. Sergeant Walsh says that she didn't know that Mr Redmond had returned. We accept that because if the gardaí had known that Mr Redmond or had seen him returning to the house or had known that he was outside, they would of course been in a position to effect an arrest without any of the complications that arise potentially upon entering a dwelling house for that purpose, so we have no difficulty with the proposition that the guards when they returned didn't know whether or not he was actually present but were making a second attempt in the light of his absence some hours earlier. And this purpose was going to be effected. It's what Sergeant Walsh had in mind whether they saw him on the street outside or whether they subsequently found him at his house.”

The trial court observed:

“That being the case, and being satisfied, as we are, on the facts of the case that there was consent and agreement here, these things are not dealt with by people sitting down and hammering out an agreement over beer and sandwiches or something of that kind.

These transactions take place in fastmoving scenario of the very kind described here.

What needs to be present is agreement. There doesn't have to be invitation and discussion, and the circumstances and the only evidence that we have available, which we accept, are that there was agreement. And there's corroboration for the agreement in that it went further than indicating that Mr Redmond was now on the premises. The householder went so far as to indicate where within the premises he might actually have been found.”

289. We think that the evidence amply justified the conclusion of the trial court that there was agreement as to entry. It might perhaps be said that any such agreement could have been withdrawn, but whatever else the conversation in the sitting room copper-fastened that position. The evidence of Sergeant Walsh could not be plainer.

290. Reliance has been placed on a number of authorities to forward the proposition that the entry was unlawful. This potentially renders relevant the provisions of s. 6 of the Criminal Law Act 1997 (as amended) which is as follows:—

(1) “For the purpose of arresting a person on foot of a warrant of arrest or an order of committal, a member of the Garda Síochána may enter (if need be, by use of reasonable force) and search any premises (including a dwelling) where the person is or where the member, with reasonable cause, suspects that person to be, and such warrant or order may be executed in accordance with section 5.

(2) For the purpose of arresting a person without a warrant for an arrestable offence a member of the Garda Síochána may enter (if need be, by use of reasonable force) and search any premises (including a dwelling) where that person is or where the member, with reasonable cause, suspects that person to be, and where the premises is a dwelling the member shall not, unless acting with the consent of an occupier of the dwelling or other person who appears to the member to be in charge of the dwelling, enter that dwelling unless—

(a) he or she or another such member has observed the person within or entering the dwelling, or

(b) he or she, with reasonable cause, suspects that before a warrant of arrest could be obtained the person will either abscond for the purpose of avoiding justice or will obstruct the course of justice, or

(c) he or she, with reasonable cause, suspects that before a warrant of arrest could be obtained the person would commit an arrestable offence, or

(d) the person ordinarily resides at that dwelling.

(3) Without prejudice to any express amendment or repeal made by this Act, this section shall not affect the operation of any enactment or rule of law relating to powers of search or powers of arrest.”

291. Accordingly, it was lawful for the Gardaí in this case to enter the appellant’s home (he “ordinarily” resided there) and they did so with the consent of the occupier—though they might have done so without such consent. The appellant says that the consent was not, on the facts, informed since on the authorities the occupier must be told why entry is being sought or made viz arrest, but was not. On this basis he says there was no consent.

292. The principal authorities on this topic are The People (DPP) v Laide & Ryan [2005] 1 IR 209 and The People (DPP) v Roche and others [2019] IECA 317. In the former case, the Gardaí entered one Mr. Ryan’s residence to search the premises under warrant. The warrant was held to be invalid. The evidence was unequivocally to the effect that the Gardaí attended the premises for the purpose of search and not to arrest Mr. Ryan. The former Court of Criminal Appeal considered that the trial judge fell into error having regard to the evidence in concluding that the Gardaí not only went there to execute the warrant but also to arrest Mr. Ryan. The prosecution had contended that the fact that the warrant was bad did not mean that the arrest was unlawful. The Gardaí relied upon the power of entry under the 1997 Act. The Court of Criminal Appeal held:

“… the efficacy of that section is predicated upon an intention on the part of the Gardaí to enter for the purpose of making an arrest. As Mr Gageby [counsel for Mr. Ryan] has pointed out, the section commences with the words ‘For the purposes of arresting a person without a warrant…’”

293. It was held that entry was gained on foot of the warrant and that no other bases was proffered to the householders (Mr. Ryan’s parents) on arrival, thus removing the “very foundation on which entry was made”. On this basis, it was held that in the absence of the Gardaí informing the occupiers of the house that they had another purpose apart from searching the premises, the power granted by s. 6 cannot be relied upon since it was never invoked by the Gardaí.

294. The court went on to say that:

“The fact that the power of entry exists does not mean, in the view of this Court, that the purpose of entry, namely the arrest of somebody who resides in the house, does not have to be explained before entry is enforced on foot of the power. The inviolability of a citizen’s dwelling is an important constitutional right, and it cannot be trespassed upon without explanation in clear and unambiguous terms.”

And went on to say:

“In the Court’s view a proportionate use of the power contained in s.6 mandates that before the somewhat draconian power of forced entry is invoked there would have to have been either no response from a knock on the door or ring of the doorbell, or in the case where such an inquiry is met by the door being opened by an occupant a request for entry would have to be first uttered and subsequently rejected, before the Gardaí would be entitled to make a forcible entry. It follows that in the particular circumstances of the present case the least that would have been required to have been done is to have informed the Ryans that they wished to gain entry for the purpose of search and arrest, if the lawfulness of their presence in the house was not to be removed upon the subsequent finding that the search warrant was bad.”

295. In Roche, Laide was applied but it was held on the facts that the Gardaí had a dual purpose in entering the premises, namely, both search and arrest [no question of the lawfulness of the search arose]. It was contended that even though entry had been gained on foot of the warrant, the Gardaí ought to have explained to the householder on entry of their intention to arrest. In its judgment, this Court concluded thus:—

“138. But, in the circumstances of the present case, entry to the dwelling was gained on foot of a valid search warrant. That was the basis on which entry was sought, not on the basis of section 6 of the 1997 Act. Therefore, in strict terms, it was not essential for the Gardaí to indicate that their purpose in entering the residence was not just for the purpose of search but was also for the purpose of arrest. Invocation of section 6 is required where that is the sole provision upon which entry is sought to a dwelling.

A prudent member of An Garda Síochána might well explain that there is a dual purpose of entry, if that is so, notwithstanding his/her belief that he/she holds a valid search warrant, in the event of a subsequent invalidation of a search warrant which would remove the very foundation of lawful entry to a dwelling.

139. In the present circumstances, the presence of the Gardaí on the premises was lawful on foot of the search warrant and consequently it follows that the arrests were lawful. However, if their presence on the premises had not been in accordance with law; this is if the search warrant had been deemed to be invalid, then applying the dicta in The People (DPP) v. Laide & Ryan [2005] 1 IR 209, their presence in the dwelling would have been unlawful due to the failure to specifically explain to the occupiers that the Gardaí had another purpose apart from the search of the premises.”

296. In our view, this case is similarly to be distinguished from Laide on the facts. Firstly, in Laide the Gardaí gained admission to the premises on foot of a warrant to search when the warrant was bad, and from that time onwards they were trespassers. We think that, as held by the trial court, the fundamental rule is that the entry must be consensual, and that the householder must know of the reason for permitting entry. We believe that the trial court was right in concluding that on the totality of the evidence, the householder (Mrs. Redmond) knew the reason for entry and gave an informed consent. It was proper for the court to infer that she must have known the reason why entry was sought based on what had transpired earlier in the day when her husband was informed by the Gardaí of who they were seeking and their right of entry. On the totality of the evidence, she cannot have been in any doubt about the matter either when entry was gained through the front door or when she conversed (obviously immediately thereafter) with Sergeant Walsh. As in the case of imparting to an individual the reason for his arrest, the courts do not prescribe precise forms of words once the reality of informing householders, whether against the background of their prime knowledge or otherwise, of their reason for entry. This is not to exclude circumstances where it may not be necessary to say anything—that does not arise in this case.

297. The trial court was right when it said, inter alia, that:

“… these things are not dealt with by people sitting down and hammering out an agreement over beer and sandwiches or something of that kind. These transactions take place in fastmoving scenario of the very kind described here. What needs to be present is agreement. There doesn't have to be invitation and discussion, and the circumstances and the only evidence that we have available, which we accept, are that there was agreement.”

298. We accept the prosecution submission that the Criminal Law Act 1997 has no relevance on the facts.

299. We therefore dismiss this ground of appeal.

The Verdict

300. The appellants claim that the verdict reached by the trial court was perverse as it was based on inferences which were incorrectly drawn from the circumstantial evidence adduced and failed to adequately consider the defence cases posited. The grounds of appeal relating to the verdict of the trial court are as follows:—

Mr. Harte

22. “The learned trial Judges erred in fact and in concluding that the Appellant committed the offences on the basis of their conclusion that he travelled in the Renault Kangoo van on both journeys on 16th and 17th September 2019, on the basis of CCTV footage from various locations on those days. The learned trial Judges erred in failing to choose an interpretation of the facts consistent with innocence which was both available and reasonably possible on the facts.

23. The learned trial Judges further erred in finding that the Appellant was the man “described by the injured party as the driver of the black Audi car” that arrived to remove him from outside his home, and that he was also responsible for inflicting most of [the victim]’s serious injuries and so erred in circumstances where it could not be said, on any analysis, that there was sufficient evidential underpinnings to permit of such findings to the requisite standard.

24. The learned trial Judges erred in attaching excessive importance to any evidence associating the Appellant with the Renault Kangoo van on 16th and 17th September 2019 in circumstances where the evidence did not disclose that that vehicle was directly involved in the abduction, false imprisonment and assault of [the victim].

25. The learned trial Judges erred in determining that the Appellant had committed the offences on the basis of its conclusion that he was depicted in CCTV at different locations on both the 16th September and 17th September 2019.

26. The learned trial Judges erred in placing excessive emphasis on the preexisting relationship between the Appellant and Cyril McGuinness.

27. The learned trial Judges erred in placing excessive emphasis on the telephone call to Cyril McGuinness at 19.52 on the evening of 17th September 2019 as speaking to the Appellant having committed the offences.

28. The learned trial Judges erred in concluding that the acquisition of bleach by the culprits at a time co-incidental to the making of this call was an “unforeseen necessity at the crime scene” when there was no evidence to suggest that this was the case but that where to so conclude might indicate a lapse of care on the part of the culprits vis-à-vis efforts to avoid detection.

29. The learned trial Judges erred in imputing significance to the fact that the Appellant was seen returning to his home at 00.10 on 17th September 2019, accompanied by Darren Redmond, in circumstances where that fact did not speak to involvement in the offences.

30. The learned trial Judges erred in placing emphasis on the “consistency of [the victim]’s description” of the driver of the black Audi with the Appellant’s “general appearance as seen on CCTV on that time, and as distinguished from [the victim]’s descriptions of the other two men involved in these offences” in circumstances where there was nothing particular or unique about the description given by the witness [the victim].

31. The learned trial Judges erred in refusing to attach any significance to the fact that the Renault Kangoo van did not have false registration plates in circumstances where the court elsewhere noted that the use of cloned registration plates would be “expected from a car acquired and selected for use in serious criminal activity”.

32. The learned trial Judges erred in failing to adequately consider the possibility (as they were obliged to) of the Appellant being involved with the black Audi car or the Renault Kangoo van in circumstances that fell short of him committing the alleged offences.

33. The Court erred in law and in fact in deciding beyond reasonable doubt that certain vehicles on CCTV were involved in the commission of the offences before the court, in circumstances where this identification could not have been made out, and or, had been acknowledged by the court during the currency of the trial not to be capable of being identified with to the necessary standard of proof.

34. The learned trial Judges erred in refusing to have any regard to the fact that CCTV disclosed that the Ford Transit van in which [the victim] was said to have been transported was on the road at the same time as the Renault Kangoo van such as to suggest that there were individuals involved with the Kangoo who did not commit the offences.

35. The learned trial Judges erred in making adverse findings against the Appellant in relation to the use of the Audi car on the basis that there was a “very limited range of possibilities for innocent association with the Audi after it was acquired by Cyril McGuinness”.

36. The learned trial Judges erred in refusing to consider such alternative reasonable possibilities on the basis that they had not been offered by him during interviews.

37. The learned trial Judges erred in placing a burden on the Appellant in respect of how he came into possession of a vehicle toll tag connected with the aforesaid Audi car. Specifically, the learned trial Judges erred in placing emphasis on the fact that the route by which the toll-tag came from the Audi to the Appellant’s home had “never been fully explained”

38. The learned trial Judges erred in failing to accord due fairness to the Appellant in refusing to have any regard to denials of involvement in the offences by the Appellant during interviews in circumstances where the learned trial Judges were satisfied to draw adverse inferences from his silence elsewhere during interviews.

39. The learned trial Judges erred in concluding, in a contradictory fashion, that the Appellant was “forensically aware” while separately acknowledging that “there were acts of unbelievable sloppiness that permitted detection of some of the culprits in this case”

40. The learned trial Judges erred in concluding beyond a reasonable doubt that the Appellant: a) was aware of the nature of the offences to be committed on the 17th of September, 2019; and b) participated in those offences.

41. Having regard to that finding, the convictions have been entered in circumstances in which justice has not been done or seen to be done, inter alia in that the Special Criminal Court has purported a) to exclude from its consideration call data records the admissibility of which had been strongly challenged; b) to be able to justify the convictions on the basis of the Appellant’s movements on the 16th of September alone; and c) has purported to be able to apply to the balance of the evidence the rules as to the presumption of innocence, burden and standard of proof and rules as to inferences, despite the fact that the Court appeared to predetermine guilt on the basis of the movements on the 16th alone.

42. The learned trial Judges erred in finding that the Appellant travelled in the Renault Kangoo van from the Island Key Apartment to the location of the offences on the 17th of September, 2019 and in failing to find that having regard to the CCTV and ANPR evidence, the prosecution had not excluded the reasonable possibility that the Appellant had alighted from the vehicle prior to the commission of the offences by others. The learned trial Judges erred in dismissing this possibility on the basis that “.

43. The learned trial Judges erred in in drawing inferences against the Appellant under Section 19A of the Criminal Justice Act, 1984.”

Mr. O’Brien

16. “The Special Criminal Court erred in law or in fact or in a mixed question of law and fact in finding that the Appellant’s movements on the 16th of September, 2019, in context, but without regard to the content of call data records, were sufficient to conclude beyond a reasonable doubt that the Appellant: a) was aware of the nature of the offences to be committed on the 17th of September, 2019; and b) participated in those offences.

17. Having regard to that finding, the convictions have been entered in circumstances in which justice has not been done or seen to be done, inter alia in that the Special Criminal Court has purported a) to exclude from its consideration call data records the admissibility of which had been strongly challenged; b) to be able to justify the convictions on the basis of the Appellant’s movements on the 16th of September alone; and c) has purported to be able to apply to the balance of the evidence the rules as to the presumption of innocence, burden and standard of proof and rules as to inferences, despite the fact that the Court appeared to predetermine guilt on the basis of the movements on the 16th alone.

18. The Special Criminal Court erred in law or in fact or in a mixed question of law and fact in failing to address the evidence regarding the 16th of

September, 2019, including in finding that the Appellant’s actions or movements on the 16th of September, 2019 were connected with the movement of a particular Audi car on that date; and in failing to address the differences in the evidence as to movements of vehicles as between the 16th and the 17th.

Whether the Appellant left Dublin on the day of the offences

19. The Special Criminal Court erred in law or in fact or in a mixed question of law and fact in finding that the Appellant travelled in the Van from the Island Key Apartment to the location of the offences on the 17th of September, 2019 and in failing to find that having regard to the CCTV and ANPR evidence, the prosecution had not excluded the reasonable possibility that the Appellant was not in the Van as it passed through the M50 toll travelling southbound, and thereafter.

20. The Special Criminal Court erred in fact and in law in addressing the issue as to whether the Appellant had scaled the wall in the car park of the Island Key Apartments and therefore had not left the Island Key Apartments in the Van, on the basis that such had been put forward by the Appellant as a positive proposition, whereas such a proposition had never been put forward by or on behalf of the Appellant.

21. The Special Criminal Court erred in fact and in law in failing to find that the defence had proved that the prosecution evidence was incorrect, that the only means of egress from the Island Key Apartments was the car park route which was covered by CCTV cameras; and that on a proper consideration of the evidence, the prosecution had not excluded the reasonable possibility that the Appellant had not left the Island Key Apartments in the Van, either by scaling the wall or otherwise, including by walking out of the Island Key Apartments carpark.

22. The Special Criminal Court erred in fact and in law in finding that the Appellant’s reliance on the fact that the prosecution could not exclude the reasonable possibility that the Appellant could have got out of the Van after it left Island Key Apartments and before it entered the M50, as contradicting the Appellant’s position, since the Appellant had never claimed that he had left the Island Key Apartments by climbing the wall, and the Appellant’s position in interview with the Gardaí and at all times in the trial was merely to assert that he had not left Dublin on the 17th of September, 2019. The Special Criminal Court erred in fact and/or in law in failing to consider the absence of CCTV evidence as to the course taken by the Van from Island Key Apartments to the M50.

23. The Special Criminal Court erred in law or in fact or in a mixed question of law and fact in drawing inferences against the Appellant under Section 19A of the Criminal Justice Act, 1984 including that certain defence observations as to alternative possibilities to the prosecution narrative were “facts” which were “a fabrication, probably of recent origin, cobbled together in an attempt to undermine the prosecution case presented at trial.”

The Under Armour tops

24. The Special Criminal Court erred in law or in fact or in a mixed question of law and fact in dealing with matters relating to the alleged clothing an offender and of the Appellant and in particular in finding that the fact that the Appellant had been wearing a black, long-sleeved Under Armour top on 16th and 17th September, 2019 was evidence supporting the contention that he was the passenger in the Van seen wearing a grey, short-sleeved Under Armour top on 17th September, 2019 at the M50 Southbound toll and that he was the assailant described by the Victim as wearing an Under Armour top on 17th September, 2019, in particular having regard to the evidence of hundreds of thousands of such items being sold in Ireland each year; and the fact that the clothing described by the Victim, namely with the Under Armour logo at waist level on the right hand side is available in the marketplace which is at a different location from that shown in the CCTV, in particular having regard to the fact (which will be the subject of an application to adduce fresh evidence, that the clothing described by the Victim, namely with the Under Armour logo at waist level on the right-hand side, is available in the marketplace. Further, the Special Criminal Court erred in finding that the front seat passenger in the Van as shown on CCTV leaving the Island Key

Apartments on the 17th of September, 2019, was wearing a dark top, which finding was contrary to the evidence.

Hair Colour

25. The Special Criminal Court erred in law or in fact or in a mixed question of law and fact a) in its application of the concept of circumstantial evidence;

b) in purporting to draw inferences as to the identity of the person described by the Victim as wearing a garment with an Under Armour logo and blonde or light brown hair; c) in finding that the circumstantial evidence in the case was sufficient “to constitute inevitable proof of Mr O’Brien’s guilt beyond reasonable doubt”; d) in appearing to find that because three persons were described by the Victim as having participated physically in his detention, the Appellant must have been one of the them, on the basis of the Appellant’s movements on the 16th of September, 2019 and the 17th September, 2019, his clothing and the colour of his hair, having regard to all the circumstances, including the Victim’s evidence indicating that his original statement that the hair colour was blonde as opposed to light brown, was probably correct.

The sale of the Van on the 23rd of October, 2019

26. The Special Criminal Court erred law in finding, without any apparent explanation, that the fact that the Appellant was involved in the sale of the Van on the 23rd of October, 2019, supported the prosecution case that he had committed the offences.

The Ford Transit van

27. The Special Criminal Court erred in the manner in which it addressed the evidence as to the timing and location of the Ford Transit van in which [the victim] was said to have been transported and as to the implications of same with regard to the activity, whether innocent or criminal, of persons other than the co-accused.”

Mr. Redmond “22. The Special Criminal Court erred in law or in fact or in a mixed question of law and fact in refusing an application for a directed verdict of acquittal on behalf of the Appellant in relation to the Counts relating to him before the Court.

23. The Special Criminal Court erred in law or in fact or in a mixed question of law and fact in failing to address the evidence in accordance with law, in failing properly to apply the presumption of innocence, the onus of proof and the standard of proof in a criminal trial in all the circumstances.

24. The Special Criminal Court erred in law or in fact or in a mixed question of law and fact in failing to address issues raised in the Defence closing submissions; and in failing to give adequate reasons for rejecting the defence case as actually made.

25. The Court erroneously assumed that the phone was in the Appellant’s possession at the time of the abduction and did so notwithstanding the fact that there was no user-based activity from the device during the said period.

In this regard, the Court wrongly excluded the possibility that although the phone appeared to be in transit, this did not meant that it was in the possession of the Appellant or anybody else.”

Circumstantial Evidence

301. The evidence against the appellants consisted of circumstantial evidence. The meaning of circumstantial evidence and the manner in which a trial court should approach and consider such evidence was considered in Cumberton. Edwards J delivering the judgment of the Court of Appeal stated at paras. 126–134 of the judgment:—

“126. Circumstantial evidence is in no way inferior to direct evidence. Both may serve to prove the existence of a fact in issue. However, in terms of the ultimate issue in a criminal case, while no one piece of circumstantial evidence may be sufficient on its own to justify an inference that the accused is guilty of the crime with which s/he has been charged, the cumulative effect of several pieces of circumstantial evidence may, in an appropriate case, justify such a conclusion. It is often said with respect to circumstantial evidence that “many strands may make a rope”. The analogy is apt and was first employed by Pollock C.B. in R v Exall (1866) 4 F & F 922 when he described circumstantial evidence as:

“… a rope composed of several cords. One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength.”

127. In the same judgment, he further explained circumstantial evidence in terms of being: “… a combination of circumstances, no one of which would raise a reasonable conviction or more than a mere suspicion; but [which] … taken together, may create a

conclusion of guilt … with as much certainty as human affairs can require or admit to.” …

131. As already alluded to, with respect to any part of a case, more than one possible inference may be drawn from such circumstantial evidence as is available. An issue for the jury (or the court as the case may be) is how, or more correctly when, the “two views” rule is to be applied in such circumstances. Are the jury or the judges concerned in considering any part of a case to automatically reject every piece of circumstantial evidence which tends on one view to suggest or support the guilt of the accused, but which also leaves open an innocent explanation for it?

132. Although the classical formulation refers to two views “on any part of the case”, that is not to be taken as implying that decisions on the relevance and significance of individual pieces of evidence are to be taken modularly or in a compartmentalised fashion. The correct approach is for the tribunal of fact in their deliberations to sift and weigh all of the evidence before deciding on the ultimate issue. A tribunal of fact in its deliberations may of course consider the evidence in relation to different parts of the case, and sift and weigh that evidence, to assess its credibility and reliability, in whatever sequence and howsoever they see fit. However, assuming the circumstantial evidence at issue is prima facie credible and reliable, the potential relevance and possible significance of that evidence may only be apparent when it is considered in conjunction with all other evidence in the case. Accordingly, such decisions can only be made following a cumulative assessment of the evidence. A tribunal of fact, whether it be a jury or judge(s) would not be justified in rejecting or discarding a piece or pieces of circumstantial evidence on the grounds of relevance or significance, or simply because an innocent explanation may be open in respect of it, on a partial consideration of the case, or a consideration of the evidence in question in isolation. ...

133. Moreover, a tribunal of fact would not be justified in abandoning any further consideration of the case simply because, on a partial consideration of the case, two views seemed to be open in respect of a piece or some pieces of evidence. If, at a point where the jury or judge(s) has/have only completed a partial consideration of the evidence, an issue or issues of concern is identified by them in terms of the relevance or significance of a piece of circumstantial evidence, including two possible views or alternative possible inferences, the proper course is for them to note their concern for later re-visiting or re-consideration when all of the evidence has been heard. Issues as to the relevance and significance of circumstantial evidence do not lend themselves to being decided upon in a modular or compartmentalised fashion. ...

134. It is only when the jury or judge(s) has/have considered all of the evidence in the case that it is proper to decide on these issues. It is at this point that the jury or judge(s) must consider whether, or not, to accept any particular piece of circumstantial evidence as being relevant and also to consider whether an inference suggested to be drawn from it is warranted or not. It is at this point that the two views rule is engaged and requires to be applied. The jury or judge(s) must now stand back and consider the implications of the evidence as a whole, having regard to the standard of proof in respect of which they are required to be satisfied before they can convict, including any evidence in respect of which it seemed earlier that two views, or alternative inferences, were open. In doing so they may find that, when all of the other evidence in the case has been taken into account, concerns identified earlier about possible contradictory inferences or possible innocent coincidences have been allayed and resolved; alternatively, that they may find that their concerns remain unallayed and unresolved. In the former eventuality they would be entitled to convict providing they are left with no reasonable doubt as to the guilt of the accused, and in the latter case they would be obliged to acquit.”

302. Edwards J also approved the approach taken by the trial court in Cumberton as to how it would consider the circumstantial evidence in that case. He stated at para. 140 of the judgment:—

“[W]e would observe that the manner in which the Special Criminal Court charged itself, as reflected in its judgment, exhibits an impeccable understanding on their part of the correct way in which to approach the assessment of the relevance and significance of circumstantial evidence in general. Indeed, it merits quotation in extenso:

“In a case that depends on circumstantial evidence, such as this, we have at the forefronts of our minds, the following four matters: Firstly, we must consider all the evidence. Secondly, we must guard against distorting the facts or the significance of the facts to fit a certain proposition. Thirdly, we must be satisfied that no explanation other than guilt is reasonably compatible with the circumstances. And fourthly, we must remember that any fact proved that is inconsistent with a guilty conclusion is more important than all of the other facts combined.

The proposition that all the circumstances must be weighed in deciding if we are convinced beyond a reasonable doubt of the accused's guilt is of equal importance. Therefore, each individual evidence or item of evidence must not be considered in a purely piecemeal fashion, because one item of evidence may resolve doubts about another item when they are weighed together and this may form an important part of the consideration in this case. Or even more importantly, suggest an inference compatible with an accused person's innocence.

When dealing with circumstantial evidence, the crucial consideration is the weight which is to be attributed to the united force of all of the circumstances when they are assembled together. It is this united force which gives strength to circumstantial evidence. Each piece of evidence does not require to point individually towards guilt, but the combined weight of what is acceptable must lead inevitably and surely in this direction, to the exclusion of any rational or reasonably possible interpretation consistent with innocence. It is not derogatory of evidence to say that it is circumstantial. Cases involving circumstantial evidence can be very strong and it is very often the best evidence that the nature of the case permits of. Indeed, cases involving direct evidence may often contain significant weaknesses. Cases based on direct identification or recognition evidence are good examples of this point.

Circumstantial evidence is evidence of surrounding circumstances which, by design or coincidence, is capable of proving a proposition beyond a reasonable doubt. We may convict in a case relying wholly or substantially on circumstantial evidence, but only where we are satisfied that not only are the circumstances proved consistent with the accused having committed the crime alleged, but also that the facts are such as to be inconsistent with any other rational conclusion but that he is a guilty person.

We must firstly be satisfied that the circumstantial evidence is acceptable in the sense of being credible or true. Secondly, where it consists of inferences, we must be satisfied that it is appropriate to draw the suggested inference and there is no competing inference inconsistent with guilt which is reasonably open to us. Thirdly, it is also necessary to examine the evidence closely for any suggestion of fabrication. Or in particular in this case, for co-existing circumstances which might weaken or destroy the circumstantial case. Fourthly, having decided what is established as factual by the evidence, we must stand back and ask the final question, and this is the important question in the case: Is the combined or cumulative effect of the acceptable evidence probative of the accused's guilt beyond all reasonable doubt, to the exclusion of all other rational explanations pointing to innocence?”

Jurisdiction of Appeal Court When Considering Inferences Arising From Circumstantial Evidence

303. Unlike a verdict of a jury returned before the Central Criminal or Circuit Criminal Courts, the verdict of the Special Criminal Court is a written verdict. Accordingly, a challenge to such a verdict arises on the same grounds applicable to civil appeals. Hay v O’Grady [1992]

1 IR 210 considered the jurisdiction of an appeal court to interfere with findings made by a trial court. McCarthy J stated at p. 217 of the judgment:—

“1. An appellate Court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial Judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial.

2. If the findings of fact made by the trial Judge are supported by credible evidence, this Court is bound by those findings, however voluminous and, apparently, weighty the testimony against them. The truth is not the monopoly of any majority.

3. Inferences of fact are drawn in most trials; it is said that an appellate Court is in as good a position as the trial Judge to draw inferences of fact. (See the Judgment of Holmes L.J. in the SS. Gairloch (1899) 2 I.R. 1, 18, cited by O'Higgins C.J. in the People .v. Madden( 1977 I.R.) 336 at 339). I do not accept that this is always necessarily so. It may be that the demeanour of a witness in giving evidence will, itself, lead to an appropriate inference which an appellate Court would not draw. In my judgment, an appellate Court should be slow to substitute its own inference of fact where such depends upon oral evidence of recollection of fact and a different inference has been drawn by the trial Judge. In the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a position as the trial Judge.”

304. The appellants submitted that as the challenges they raised with respect to the verdict reached by the trial court related to inferences drawn from circumstantial evidence, rather than findings of fact or inferences of fact, we are not restricted in the manner we approach the inferences drawn as we are in as good a position as the trial court to carry out this task. The respondent does not dispute this assessment of our jurisdiction in this regard.

Submissions of the Appellants

305. The appellants have each submitted that the trial court drew incorrect inferences from established facts and failed to properly consider the defence cases. It was further submitted that the evidence adduced was not such that it inexorably led to a conclusion of guilt in respect of all three appellants to the exclusion of all other rational explanations pointing to innocence.

306. The appellants relied on submissions common to all, whilst each also making submissions specific to himself.

Challenges to the verdict by Mr. Harte

307. Counsel on behalf of Mr. Harte, in written and oral submissions, made a number of challenges to the verdict of the trial court.

308. It was argued that the trial court erred in coming to the conclusion that on 16 September (the day before the offences were committed), the initial occupants of the Kangoo van (Mr. Harte and Mr. O’Brien) were involved in preparatory acts for the commission of the offences on 17 September as: it was unknown where the Kangoo van travelled during the entirety of its journey that day; who the occupants of the Kangoo were at all stages; and what the occupants did for the entirety of the day. It was also submitted that the denial by Mr. Harte to the investigating guards, when he was detained and interviewed, that the Kangoo van was involved in preparatory acts for the offences committed on 17 September when he was in the Kangoo van, was not considered by the trial court; nor was the reasonable possibility that Mr. Harte had some connection with matters which unfolded on 17 September, but that this connection fell short of involvement in the offences themselves. In making this argument, emphasis was placed on the fact that the Kangoo van was not seen for four hours on the evening of the 16 September, with a suggestion made that the trial court should have been concerned regarding the lack of knowledge as to what the Kangoo van and its occupants were doing during this period, rather than finding that this absence from sight was probative of preparatory work being carried out. In addition, it was submitted that it was not established that Mr. Harte was in the Kangoo van at the time the trial court found that the black Audi and the Kangoo van were driving in the company of each other on 16 September.

309. With respect to 17 September, emphasis was placed on the fact that the Kangoo van was last seen, before the abduction of the victim, at 14.46 at Granard, County Longford, which was more than two and a half hours before the victim was abducted, and a distance of at least 60km from the site of the abduction. Similar to the situation on 16 September, nothing was known of what occurred after the sighting in Granard, for example: where the Kangoo van went thereafter; what the initial occupants of the Kangoo van (on 17 September) were during the course of the afternoon; or whether the occupants of the Kangoo van changed. It was submitted that the trial court incorrectly placed reliance on the fact that the Kangoo van disappeared from view rather than concerning itself with where it had disappeared to.

310. It was argued that in light of the acknowledgment of the trial court that other people were involved in the offences carried out, the trial court erred in assigning these three appellants with the principal roles in the offences. This argument is not well made, as the trial court determined that there was a reasonable possibility that Mr. Redmond may not have been present at the time of the abduction of the victim at Kinawley but was in Dumbrade, possibly with the Kangoo van.

311. In addition, attention was drawn to the fact that the routes taken by the Kangoo van on each day were different. Accordingly, it was submitted that the basis for the determination that the journey on the 16 September was preparatory for the offences committed on 17 September was not made out.

312. Criticism was made of the trial court’s determination that the Audi was positioned on

16 September somewhere north of Granard, for use the next day, when there was no evidence to this effect. In addition, there was no evidence as to how the Audi arrived at the site of the abduction.

313. Attention was also drawn to the fact that the call from the driver of the Audi, immediately after the abduction of the victim, to “Boss”, which the victim gave evidence of, was not recorded on the phone records of either Mr. Harte or Cyril McGuinness, in circumstances where another call between these parties during the time of the victim’s abduction was recorded. It was suggested that the trial court paid no regard to this and went so far as to discount it from its considerations on the basis that the call data was of minor relevance to proof of Mr. Harte’s involvement in the offences. It was suggested that this was an important aspect of the case as it raised the reasonable possibility that another person, other than Mr. Harte, was the driver of the Audi at the time of the victim’s abduction.

314. A submission was also made that had Mr. Harte any awareness that the toll tag was connected to the Audi, he would have disposed of it, particularly in circumstances where he was asserted to be forensically astute. It was submitted that the trial court paid no regard to the incongruence of his actions in this regard. In addition, it was asserted that an illogicality existed between the trial court determining that the appellant was forensically aware, having regard to his possession of the Forensics Casebook, yet requiring bleach midway through the offences being committed; failing to wipe the Kangoo van down for traces of forensic evidence; and failing to dispose of the toll tag.

315. It was also submitted that the trial court made a factual error when considering the victim’s description of his assailants. He had described the driver of the car as being “slightly” heavier and taller than the other two assailants and being in his mid “40s”. This description did not match Mr. Harte, who was in fact smaller than his co-accused and was 38 at the time of the offences. It was submitted that this was of particular significance as the driver of the Audi was identified by the victim as the person who inflicted the most significant injuries on the victim.

316. Criticism was also levelled at the trial court’s reliance on Mr. Harte’s continued connection with the Kangoo van in terms of it being parked in the vicinity of his apartment, and his involvement with Mr. O’Brien to arrange transport of the Kangoo van to the garage for sale. Counsel for Mr. Harte suggested that rather than this being viewed by the trial court as evidence supportive of the prosecution’s case, it should have raised a concern for the court with respect to Mr. Harte’s knowledge of the offences as he surely would not have a continued connection with the Kangoo van had he known what it had been used for.

317. The trial court’s consideration of the Kangoo van not bearing false registration plates was also the subject of criticism. The trial court determined that the fact that the Kangoo van was not disguised with false number plates was of no significance. Emphasis was placed on a contrary comment made by the trial court, when considering the BMW and Audi vehicles which did bear false number plates, to the effect that one would expect a vehicle used in a criminal enterprise to have false number plates displayed.

318. It was also submitted that the trial court’s determination that it did not detract from its conclusions regarding the involvement of the appellants in the offending, the possibility that the Kangoo van and the Ford Transit were both being driven at the same time, after the abduction of the victim, was a significant failing in the trial court’s reasoning. It was submitted that that fact established that someone else, apart from Mr. Harte, was driving either the Kangoo van or the Ford Transit and this possibility was not catered for by the trial court in its considerations.

319. In addition, complaint was made that the trial court relied on Mr. Harte and Mr. Redmond arriving back to Mr. Harte’s apartment complex in a taxi. However, this is not apparent from the findings made against Mr. Harte. The reliance by the trial court is simply on the fact that the pair arrived back to the apartment together; accordingly, this point of criticism will not be considered further.

320. Criticism was also made of the trial court determining that on 16 September, the relevant Audi was in the company of the Kangoo van at 21.25 at Killeshandra, County Cavan, when the trial court had commented in the course of the CCTV evidence being given that the most that could be said of the black car depicted on the CCTV was that it was a saloon car. In addition, the CCTV footage did not depict the distinctive markings of the Kangoo van. This determination is a finding of fact by the trial court based on CCTV footage which it had clearly considered in detail in light of the reference by the trial court to the car depicted having “spoked wheels and a missing rear light” (which were features of the Audi at issue). In addition, the trial court referenced CCTV footage at Ballinagh at 22.40 and Cavan town at 22.46 (which depicted the distinctive Kangoo van) in making this determination, and had regard to the time and place of these sightings. These are determinations of fact by the trial court which have an evidential basis, and which were open to the court to make. This court will not interfere with this finding.

Challenges to the verdict made on behalf of Mr. O’Brien

321. Counsel for Mr. O’Brien was critical of the trial court’s indication that his movements on 16 September would have been enough to convict him of the offences on 17 September when nothing is known of what the Kangoo van or its occupants did on 16 September once it went out of view of CCTV footage at 17.26 in Kinawley, and before Mr. O’Brien is seen in it at the Applegreen petrol station in Virginia at 23.06.

322. With respect to 17 September, it was submitted that the trial court was in error in determining that Mr. O’Brien got into the Kangoo van at Mr. Harte’s apartment complex or that he travelled outside of Dublin in the Kangoo van in light of the lack of evidence in this regard and the number of reasonable possibilities which existed as to where Mr. O’Brien went after he entered the car parking area at Mr. Harte’s apartment complex.

323. Criticism was made of the reliance placed by the trial court on the Under Armour clothing which Mr. O’Brien was depicted as wearing on the 16 and 17 September in light of the fact that Under Armour clothing is so commonplace and the items of Under Armour clothing described by the victim and depicted in the ANPR footage was of a different kind to that which Mr. O’Brien had been wearing on 16 and 17 September. It was also submitted that the trial court erred in the colour of the top which Mr. O’Brien was wearing on 16 and 17 September.

324. In addition, criticism was made of the finding of the trial court that the description given by the victim of the driver of the Audi matched Mr. O’Brien when the colour of hair described by the victim was different.

325. Finally, criticism was made that the trial court placed reliance on Mr. O’Brien’s continuing involvement with the Kangoo van when he brought the van to Paul Kavanagh’s yard in Duleek on 23 October 2019.

Challenges to the DNA findings made by the trial court on behalf of Mr. O’Brien and Mr. Redmond

326. Counsel on behalf of Mr. O’Brien and Mr. Redmond also made submissions regarding the findings of the trial court in relation to the DNA evidence admitted into the trial. This has already been considered and upheld by us in an earlier section of this judgment.

Discussion and Determination

327. We have set out the verdict reached in the case earlier in this judgment in extenso so that the manner in which the trial court dealt with the evidence can be fully understood. However, the building blocks of the trial court’s verdict were the CCTV footage from 16 and

17 September; the toll tag found in Mr. Harte’s possession; the connection between Mr. Harte, the Kangoo van and the Audi; the involvement of Cyril McGuiness in the purchase of the Audi and the Kangoo van; the presence of all three appellants in the Kangoo van at the times found by the trial court; and Mr. Redmond’s phone records.

328. The principal difficulty with the submissions made on behalf of all three appellants is that the errors asserted to exist in the verdict fail to appreciate the manner in which a fact finder is mandated to approach circumstantial evidence as set out in Cumberton, which makes clear that the fact finder must firstly determine what evidence it accepts as reliable and credible, and then place that evidence into the basket of evidence to be considered cumulatively to determine whether the offence charged has been established beyond reasonable doubt.

329. In the instant matter, the appellants seek to challenge individual items of evidence on a stand-alone basis. This is not the task which the fact finder was required to carry out and has little, if any, significance to the verdict ultimately reached in this matter. This observation is particularly apt with respect to the complaints which Mr. Harte and Mr. O’Brien made in relation to the trial court’s determination that the occupants of the Kangoo van were involved in preparatory acts on 16 September for the commission of offences on 17 September. These complaints focus on the unknowns of the journey on 16 September and 17 September, rather than having regard to the wider evidence which the trial court relied upon, and which is set out as “decisive circumstances” in its written verdict. Indeed, the trial court commented that not every detail of the crime was known and accepted that other people had to be involved in the commission of the offences, but the trial court’s focus was upon whether the cumulative effect of the evidence established the appellants guilt to the exclusion of any rational hypothesis. Accordingly, while many things were unknown about the Kangoo van’s journey on 16 September, the evidence of what was known about that journey, coupled with other established facts arising from the building blocks already referred to, were sufficient to establish the appellants’ guilt on the charges proffered such that a reasonable possibility of innocence did not exist. Most importantly, the trial court did consider the possibility of Mr. Harte and Mr. O’Brien absenting themselves from the Kangoo van at some point after 17.26 when the Kangoo van was last seen in Kinawley (and by implication did consider the hypothesis put forward by Mr. Harte at interview) but determined that having regard to the sighting of the pair at the Applegreen petrol station in Virginia on the return journey to Dublin at 23.06, it was not a reasonable possibility that they had absented themselves from the Kangoo van for such a long period of time, far from home, in a remote part of Cavan. We are of the opinion that the trial court did not err in the inferences it made having regard to the “decisive circumstances” which it correctly identified. Furthermore, there was a probative value to the fact that the Kangoo van disappeared from CCTV view for a four-hour period so that preparatory work could be carried out for the commission of the offences the next day.

330. Other more specific complaints with respect to the trial court’s verdict were made by the appellants which we will now deal with.

331. The complaint that there was no evidence that the Audi was positioned somewhere north of Granard is not well founded. The CCTV evidence, as interpreted by the trial court, was that the Audi had travelled as far as Killeshandra on the night of 16 September, and on 17 September the Audi was depicted on CCTV at Ballinagh at 15.50, both of these locations being north of Granard. In addition, the Kangoo van was last seen on 17 September, before its return journey to Dublin, at Granard at 14.46 and then depicted, north of Granard at Killydoon at

21.08. In addition, cell site evidence in relation to Mr. Harte’s phone established use of that phone in the Drumcoghill area between 15.12 and 15.18, which supported the trial court’s finding that the Audi was positioned north of Granard. In light of all of this evidence, it was a reasonable inference for the trial court to draw that the Audi was positioned north of Granard before it commenced its journey to Kinawley on 17 September.

332. The complaint that the routes followed by the Kangoo van on 16 and 17 September were different and therefore do not establish that the journey of 16 September was preparatory is also not made out. The preparations which the trial court found were occurring on 16 September related to involvement by Mr. Harte and Mr. O’Brien with the Audi both in respect of attaching false number plates to it and secreting it until the following day. Indeed, the trial court referred to the objective of the journey on 17 September as being to reunite with the Audi. Mapping a route to the ultimate destination on national roads which were well travelled by Mr. Harte, having regard to his indication in interview of him travelling to Cavan previously, was not a preparatory step which the trial court was referring to.

333. The complaint which Mr. Harte makes that there is an irreconcilable discrepancy between the trial court indicating that he was forensically aware, but then extreme sloppiness being demonstrated with respect to forensics, if he was involved in the offences, is overstated. The trial court determined that Mr. Harte was forensically aware on the basis of “The Forensic Casebook” being found in his house when it was searched. This does not equate with the trial court finding that Mr. Harte acted in a forensically aware manner.

334. Similar reasoning applies to the submission made on behalf of Mr. Harte that his possession of the toll tag belonging to the Audi and his continued association with the Kangoo van after the offences were committed, demonstrates his lack of knowledge of the use of the Kangoo van. The trial court engaged in a detailed analysis of possible explanations as to how the Audi’s toll tag came to be in Mr. Harte’s apartment, which included examining Mr. Harte’s explanation of how this occurred. Important facts in this regard were that the Audi disappeared from CCTV view after 17 September, so transfer of its toll tag had to have occurred before the abduction of the victim; and there was a limited time prior to the abduction of the victim for the toll tag to have been moved to the Kangoo van with the only CCTV footage connecting the Audi and the Kangoo van occurring on the night of 16 September. In those circumstances, the trial court determined that the most likely time the toll tag transferred from the Audi to the Kangoo van was on this occasion and that such a transfer can only have occurred in a situation where it was planned to use the Audi the next day for the abduction of the victim, which required the Audi to be cleared of incriminating material. Accordingly, Mr. Harte’s possession of the toll tag was not innocent. In light of that determination, which was open to the trial court to make, the fact that Mr. Harte failed to dispose of the toll tag or was not concerned at having the Kangoo van in the vicinity of his apartment can properly be described as sloppiness on his part. As commented upon by the trial court, although in a different context—sometimes criminals make errors in covering their tracks. Our determination in this respect equally applies to the similar criticism made by Counsel on behalf of Mr. O’Brien in relation to his continued association with the Kangoo van.

335. With respect to the phone records of Mr. Harte and Cyril McGuinness not having the “Boss” phone call recorded on their phones, this was considered by the trial court who determined that it was an unexplained detail of the crime which did not affect the court’s determination of the guilt of the accused. It cannot be said that the trial court did not consider this issue, it clearly did but determined that this issue did not impact on the determinations it made in relation to Mr. Harte’s involvement in the offence. This was a finding which was open to the trial court to make having regard to the circumstantial evidence adduced.

336. In relation to the submission that the trial court erred in determining that there was a consistency between the victim’s description of the driver of the Audi and Mr. Harte’s appearance because Mr. Harte is not taller than Mr. O’Brien and Mr. Redmond and was not in his mid-40s at the time of the offences, the trial court did not in fact engage in that analysis. Rather what the trial court indicated was that there was a consistency between the victim’s description of the driver of the Audi and Mr. Harte’s presentation in CCTV footage. This was a determination of fact which the trial court made having viewed the CCTV footage many times. This is a finding which was open to the trial court to make, and this Court will not interfere with it.

337. The trial court’s reasoning in relation to the Kangoo van not bearing false registration plates—compared to both the BMW and the Audi which did—does not demonstrate any inherent contradiction in light of the specific circumstances relevant to the Kangoo van, namely, that it was a recently imported vehicle, the planned use for which was travelling between Dublin and Cavan, which therefore made subterfuge unnecessary and probably unwise.

338. The submission that the trial court failed to consider the significance of the Kangoo van and the Ford Transit being on the move at the same time is also not well founded. The trial court did consider the issue but determined that the fact that both vehicles were moving after the victim was left on the roadway did not impact on the prosecution’s central hypotheses. In fact, the movement of the Kangoo van at the same time as the Ford Transit was to be expected, as the Ford Transit had to be secreted, and the perpetrators of the abduction collected. Accordingly, not only did the trial court consider this issue, but a concern that both vehicles were moving at the same time does not arise.

339. In relation to the assertion that the trial court erred in determining that Mr. O’Brien was a passenger in the Kangoo van on 17 September and discounted a number of reasonable possibilities consistent with innocence, we do not share Counsel for Mr. O’Brien’s view that any of the suggestions which he made with respect to Mr. O’Brien not being a passenger in the Kangoo van at all, or alternatively getting out of the Kangoo van before it reached the M50, were reasonable. In a s. 19A inference interview with the investigating guards, Mr. O’Brien indicated that he did not leave Dublin on 17 September, but he did not provide any further details in this regard. In the course of the trial, his Counsel posited that there were other ways of exiting the car park area where the Kangoo van was parked at Mr. Harte’s apartment complex, rather than leaving in the Kangoo van, which included climbing an 8ft wall or entering an unidentified apartment which had access from this area. In the alternative, it was suggested that if the trial court was satisfied that he had left the apartment complex in the Kangoo van, then it remained reasonably possible that he got out of the Kangoo van at a later stage of the journey before the Kangoo van reached the M50. We are of the view that the trial court’s assessment of it not being a reasonable possibility that Mr. O’Brien exited the car park by the unconventional routes of access suggested was open to the court. Apart from these suggested unconventional routes not being reasonably possible, there is the added fact that the passenger and driver of the car were wearing the same colour tops as Mr. O’Brien and Mr. Harte were wearing moments before the Kangoo van departed. We also are of the view that the trial court’s assessment that it was not a reasonable possibility that Mr. O’Brien departed from the Kangoo van before it reached the M50, was also open to the court. The CCTV footage from Mr. Harte’s apartment complex demonstrated an arranged meeting between Mr. Redmond, Mr. Harte and Mr. O’Brien. The proposition that Mr. O’Brien met the other appellants by arrangement, only to depart the Kangoo van before the M50 barrier, having travelled to the same destination the previous day as the Kangoo van would ultimately travel to that day, is not a reasonable possibility.

340. With respect to the assertion that the trial court relied on the fact that Mr. O’Brien was wearing Under Armour clothing on 17 September when assessing the ANPR evidence of the passenger in the Kangoo van wearing an Under Armour t-shirt going through the M50 and the victim noticing that the man who had been driving the BMW was wearing an Under Armour top, Counsel for Mr. O’Brien is incorrect in his assertion that such reliance was placed on these disparate facts by the trial court. The trial court simply found that Mr. O’Brien was not a stranger to this brand whilst recognising that it was a very well-known and popular brand of clothing. It did not determine that these facts combined led to the identification of Mr. O’Brien.

341. In relation to the description of the driver of the BMW having blonde hair, which does not match Mr. O’Brien’s hair colour, which is black, but apparently was showing as brown in the CCTV footage, the trial court in fact recognised the discrepancy which arose on the victim’s evidence with respect to the hair colour he described of the person assigned to be Mr. O’Brien but nonetheless determined that this description did not undermine the prosecution’s case. This was a finding open to the trial court having heard and assessed the victim’s evidence and as this is an inference drawn on the basis of a determination of fact which was open to the trial court to make, we will not interfere with the trial court’s determination on this issue.

342. As an aside, the cell site evidence relating to the phone attributed to Mr. Redmond puts beyond question Mr. Redmond’s presence at relevant locations on 17 September. As this evidence does not feature in the grounds of appeal, aside from an assertion that the trial court was incorrect to attribute a phone registered to his mother to him (which was a factual finding which we will not interfere with), we will not proceed to deal with this phone evidence any further.

343. In addition, the trial court made findings in relation the DNA evidence which have already been considered and upheld by us.

344. Accordingly, the challenges which the appellants made against the findings and reasoning of the trial court in its verdict are not established. The trial court engaged in a detailed analysis of the evidence and made findings of fact and inferences from findings of fact which were open to it to make. It proceeded to consider the circumstantial evidence established in the case and ultimately concluded that all reasonable hypothesis of innocence could be excluded and that it was satisfied beyond reasonable doubt of the guilt of the appellants on the charges proffered. These were findings which were open to the trial court to make.

345. We therefore dismiss the grounds of appeal in relation to the verdict.

Conclusion

346. In circumstances where we have not upheld any of the grounds of appeal proceeded with before us, we dismiss each of the appellants’ appeal against conviction.

Approved No Redaction Needed