THE COURT OF Appeal has upheld a gang’s convictions for the tiger kidnapping of a Dublin family as part of a €2.08m cash-in-transit robbery.

In a judgement released electronically this morning as part of measures put in place to reduce the risks presented by the Covid-19 pandemic, the appellate court said that it was not persuaded of the merit of any of the grounds of appeal advanced by the gang.

President of the Court of Appeal Mr Justice George Birmingham, who sat with Mr Justice Patrick McCarthy and Ms Justice Isobel Kennedy, said the court was satisfied that the convictions were safe and would dismiss the appeals.

In their last trial in January 2018, Mark Farrelly (48), David Byrne (46) and Niall Byrne (37) had pleaded not guilty to the false imprisonment of Paul Richardson’s family at their Dublin home in Ashcroft, Raheny and to robbing Securicor of €2.08 million on 14 March, 2005.

Dublin Circuit Criminal heard that the Richardsons’ home was raided on what should have been a normal Sunday evening.

The gang forced Paul Richardson to go to work the next day while his wife and their teenage sons were held at gunpoint in the Dublin mountains until he had delivered the cash to the carpark of the Angler’s Rest pub.

Sentencing the men in July 2018, after a specially enlarged jury panel had delivered guilty verdicts against the gang, trial judge Melanie Greally commended the Richardson family for their “uncommon and unbending faith in the criminal justice system” over the course of numerous trials.

Unconstitutional evidence-gathering

In their latest appeal, the three men had argued their convictions were unsafe because the gathering of evidence by gardaí was unconstitutional and should not have been excused as being an “unconscious” breach, in line with the exclusionary rules of evidence set down in the 2015 Supreme Court case of ‘JC’.

In that ruling, the Supreme Court found that evidence obtained unconstitutionally is admissible if the prosecution can show the breach was inadvertent.

In his appeal submissions counsel for David Byrne, John Fitzgerald SC, had argued that during the investigation, gardaí obtained mobile phone records under 1993 legislation that had been “replaced” by 2005 legislation shortly beforehand.

He said that gardaí had used an outdated statutory mechanism that was not designed for this purpose.

Mark Farrelly had submitted that the trial judge, having ruled that the requests for mobile phone records relating to him were made in breach of his constitutional right to privacy, erred in ruling that evidence obtained by the prosecution in this manner was still admissible.

During the trial, Judge Greally had agreed with the defence that an incorrect legal framework was applied but she found the evidence should not be excluded as it was not deemed to have been a deliberate breach of the accused’s constitutional right to privacy.

Privacy rights not absolute

Counsel for the Director of Public Prosecutions, Dominic McGinn SC, had told the appeal court that privacy rights were not absolute but were subject to the State’s right to investigate crime.

Mr Justice Birmingham said the appeal court found Judge Greally was correct in her view that she should be informed by the “JC” principles and that she had approached the task of how to exercise her discretion “with conspicuous care”.

He said her decision to exercise her discretion in favour of admitting the evidence was “clearly open to her” and was “clearly correct”.

Farrelly, of Moatview Court, Priorswood, Coolock, whom the State characterised as the “mastermind” of the gang, was sentenced to 17-and-a-half years imprisonment.

His phone was used to co-ordinate the movements of the various gang members.

The jury found that former Securicor worker, Niall Byrne, of Crumlin Road Flats in Dublin, was the “inside man” on the job and convicted him of conspiracy to commit robbery.

However, they were unable to agree a verdict on the kidnapping charges against him.

David Byrne, of Old Brazil Way, Knocksedan, in Swords, was one of two men who was in a jeep that brought the Richardsons to the mountains. He was sentenced to 13-and-a-half years.

Marathon trial

The investigation initially focused on mobile phone activity in the remote mountain area on the night. Gardaí identified two mobile numbers they believed were used by the gang.

From analysing the records of these two numbers, investigators built up a network of nine mobile phones which the State alleged were used by the various raiders

The prosecution evidence then focused on linking some of these numbers to the defendants.

After a marathon 66 day trial in 2009, a jury convicted Farrelly of kidnapping and he was jailed for 25 years. In 2011, David Byrne and Niall Byrne stood trial but the jury could not agree on a verdict.

Farrelly was released in 2012 after his conviction was overturned by the Court of Criminal Appeal on the back of a Supreme Court ruling that search warrants used in this and other investigations were unconstitutional.

A jury in 2013 failed to reach a verdict against Farrelly, while in 2015 he was acquitted of all charges when Judge Mary Ellen Ring ruled that the State could not use the mobile phone evidence.

A year later the Court of Appeal found Judge Ring was mistaken and overturned the acquittal.