A man jailed for eight years for conspiring to steal the getaway car used in the credit union robbery during which Det Garda Adrian Donohoe was shot dead has had his conviction overturned.
The Court of Appeal found the decision by the non-jury Special Criminal Court to amend the indictment against James Flynn (34) after his trial had finished, and without consulting the prosecution or defence legal teams, was a breach of Mr Flynn’s right to constitutional natural justice.
Delivering the judgment, Ms Justice Tara Burns 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, with an address in Ravensglen, Newry, Co Down, was originally charged with a wider conspiracy to steal cars at various locations in the northeast. He was further charged with participation in a robbery of the Lordship Credit Union in Bellurgan, Co Louth, on January 25th, 2013 in which Aaron Brady shot and killed Det Garda Donohoe.
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The Special Criminal Court acquitted Flynn of those charges but amended the indictment to find him guilty of conspiring to steal a 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 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 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”.
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 as to whether Mr Flynn should face a retrial.
In the Special Criminal Court’s judgment, Mr Justice Tony Hunt said with regard to the series of “creeper” burglaries, the prosecution relied on mobile phone evidence which it alleged showed phones belonging to Mr Flynn had pinged off masts or cell sites adjacent to homes where cars were stolen in the early hours at multiple locations on dates in 2012 and 2013.
Mr Justice Hunt said the prosecution had failed to prove the cell sites referred to were the same ones through which Mr Flynn’s calls were 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 a standard that went beyond reasonable doubt.
Mr Justice 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.
