The Court of Appeal has overturned the conviction of a 34-year-old man who was jailed for eight years for conspiring to steal the getaway car used in the credit union robbery during which Detective Garda Adrian Donohoe was shot dead.
The appeal court found that the decision by the three-judge, non-jury Special Criminal Court to amend the indictment against James Flynn after his three-month long trial had finished and without consulting either the prosecution or defence legal teams, was a breach of Mr Flynn's right to constitutional natural justice.
Ms Justice Tara Burns, delivering today's judgment, described the amendment as a "very unusual occurrence" which had denied Mr Flynn the opportunity to make legal arguments over the amendment or to plead guilty to the new charge. Mr Flynn's lawyers had argued that the first they knew of the charge of conspiring to steal the getaway car was after their client had been convicted of it.
Mr Flynn, with an address in Ravensglen, Newry, Co Down, was originally charged with a wider conspiracy to steal cars at various locations in the North East. He was further charged with participation in a robbery of the Lordship Credit Union in Bellurgan, Co Louth on January 25, 2013 in which Aaron Brady shot and killed Detective Garda Donohoe.
The Special Criminal Court acquitted Flynn of those charges but amended the indictment to find him guilty of conspiring to steal the Volkswagen Passat from a property in Clogherhead, Co Louth in January 2013.
At the Court of Appeal last January, Bernard Condon SC, for Mr Flynn, argued that the decision to amend the indictment after the trial had finished and while the court was acting in its capacity as a jury was an error. He said the defence was not offered an opportunity to argue about the wording of the amendment or as to whether it was appropriate.
When the Special Criminal Court amended the indictment, Mr Condon said his client was convicted of a charge which was “never put to him” and on which he was “never given the opportunity to plead”.
“At the level of fundamental fairness, it’s baffling to us why the court didn’t come out and say: ‘We’ve reached an impasse,’” he said. “The first we heard that this offence was out there was after we had been convicted of it,” he added.
Having quashed Mr Flynn's conviction, the Court of Appeal did not consider other arguments made by his lawyers during their appeal. The court will hear from the parties in the case next Tuesday, March 18 as to whether Mr Flynn should face a retrial.
In the Special Criminal Court's judgement, Mr Justice Tony Hunt said with regard to the series of separate creeper burglaries, the prosecution relied on mobile phone evidence which it said showed phones belonging to Flynn had pinged off masts or cell sites adjacent to homes where cars were stolen in the early hours of the morning at multiple locations on various dates in 2012 and 2013.
Mr Justice Hunt said the prosecution had failed to prove that the cell sites referred to were the same ones through which Mr Flynn's calls had been made. He said the court could "draw no conclusions" from the cell site analysis and dismissed the evidence. The evidence in relation to the creeper burglaries therefore amounted to nothing more than suspicion, the judge said, and "a lot more evidence would be needed" to prove the charge of conspiracy to commit burglaries to the standard of beyond a reasonable doubt.
Mr Tony Hunt said the evidence established beyond a reasonable doubt that Mr Flynn was an active member of the gang that carried out the robbery and that he was intimately involved with Brady and another man involved in the theft of the getaway car.
The court found that Mr Flynn conspired with two others to steal the Passat, basing its finding on CCTV footage alleged to have shown Mr Flynn's distinctive BMW 5-series acting suspiciously in the early hours on the morning of the theft near to where the Passat was stolen.
Mr Justice Hunt said the evidence showed Mr Flynn and others were involved in “night work” of a criminal variety. "That being the case, I would amend Count 3, to read that between January 22 and 23 2013 at various locations, James Flynn conspired with Aaron Brady and another to enter premises at Clogherhead to steal the keys of a motor vehicle," he said.
However, the court found the evidence in relation to the robbery at Lordship did not prove the prosecution case that Mr Flynn was one of the men directly involved.
Sentencing Mr Flynn to eight years' imprisonment in December 2023, Mr Justice Hunt said that at the time when Flynn conspired to steal the Volkswagen Passat he "knew the full purpose of the conspiracy to burgle" and that the conspiracy "encompassed an integral aspect of the robbery" which took place three nights later.
Before he was extradited from the UK to face trial, Mr Flynn was in a position to offer over £1 million in sureties when applying for bail at Westminster Magistrates Court. He had fled Ireland shortly after the robbery and had to be extradited from the UK in April 2022 to face trial. The court that Mr Flynn holds both a UK and United States passport but not an Irish one.
During the appeal in January, Mr Condon also questioned the evidence given by prosecution witness Andy Wooller, who claimed to identify Flynn's car driving up and down the street in Clogherhead when the Volkswagen Passat was stolen.
Mr Condon said Mr Wooller had described himself as having invented or helped to develop the "science of forensic vehicle identification". Mr Condon said forensic vehicle identification is "not a science and he is not a scientist". Counsel described the methodology used by Mr Wooller as "ludicrous", adding that it is not subject to any regulation or peer review and has never been tested in the academic world.
Mr Wooller, counsel said, took 22 years to achieve a degree in science and did not have that degree at the time when he was engaged in identifying vehicles for Gardaí. Mr Condon described Mr Wooller's evidence as partial and a "ball of smoke" and suggested Mr Wooller should not have been permitted to give evidence in a serious trial. Mr Condon called on the Court of Appeal to set aside the conviction on the basis that the Special Criminal Court was influenced by a witness who is not an expert.
Counsel further submitted that the court had made findings of fact that were unsupported by the evidence or did not meet the standard of beyond a reasonable doubt.
Prosecution counsel Lorcan Staines SC countered that the court could “go much further than Mr Wooller” in identifying the car because they “have more information than Mr Wooller”. He said the appellant had constructed a “classical strawman argument” and that Mr Wooller had not been admitted by the Special Criminal Court as an expert witness, but instead admitted his evidence on the basis that its weight would be determined later.
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