‘You’re as good as your last case, on your own when it goes wrong’
The suicide of Colm Fox collapsed the Regency trial but raises concerns about gardai welfare, writes Maeve Sheehan
THE trial of Patrick Hutch for his alleged role in the murderous gun attack at the Regency Hotel in February 2016 was just days into evidence when it got stuck on the photograph of the blonde.
The now-iconic image taken by a Sunday World photographer captured a man in a blonde wig, holding a hand gun across his body, running from the Regency Hotel, and a stockier accomplice in a flat cap trotting alongside him, gun in hand.
The State argued the two men were part of a gang of six involved in storming the Regency Suite, the venue for a boxing weigh-in, the room filled with fans, boxers, managers, culminating in the murder of David Byrne, lieutenant of Christy Kinahan’s drugs cartel and pal of his son and heir, Daniel. Three gunmen who walked into the front entrance of the Regency, dressed as Garda tactical unit with automatic rifles, were photographed too but never identified. The getaway driver also got away.
That left the Wigged Blonde and Flat Cap. A dissident republican from Strabane called Kevin Murray was accused of being Flat Cap, but he was judged too ill to face trial and died soon afterwards of motor neurone disease.
Patrick Hutch (25) was the only man to go on trial, the photograph and CCTV footage the primary evidence against him. He pleaded not guilty. How gardai came to match the blonde-wigged man in make-up with the accused man in the dock of the Special Criminal Court was always going to be a contentious issue.
The trial, which opened in January last year, heard that the photograph had been circulated to 500 gardai in Dublin. Only two identified him, at Ballymun Garda Station independently of each other, the court heard. One detective said: “I know that person. I’m saying nothing” and left the room. The other “immediately recognised the person on the left as Patrick Hutch”.
Hutch’s defence counsel, Michael O’Higgins, questioned whether they identified Hutch independently of one another. Over five days of legal argument, he tried to get that evidence thrown out. He argued that the two Garda members knew Patrick Hutch better than other Hutch family members, which meant it was more likely they would name him. The court could not be satisfied beyond reasonable doubt of the prosecution’s version of events, he said, and so the identification is “sullied and tainted and unsatisfactorily explained”.
On Friday, February 2, the Special Criminal Court allowed the identification evidence and the trial was back on track. But Patrick Hutch’s defence team did not let up. The following Monday, Michael O’Higgins had submitted what the prosecution called “a far-reaching and multi-faceted request” looking for among other things, emails between four gardai.
He had requested them because of statements that he said were a “blatant and obvious cog”. Statements were made in which matters were omitted and then new statements made that “hit every single note on the scale”.
The emails between the four gardai were “in the thousands”, the prosecution said, and would have to be downloaded and printed. The workload was such that the trial was adjourned for another week.
As the senior investigating officer into the murder of David Byrne, Detective Superintendent Colm Fox’s work was cut out for him over the following days. He would most likely have had to search through volumes of records to satisfy the discovery request. This would have been an onerous task at the best of times, with the added pressure of knowing that every record disclosed to the other side would be scrutinised for error.
On Saturday, February 10, the detective superintendent went to his office at Ballymun Garda Station. At some point, he wrote some notes which he left to be found. His colleagues found him dead at 9pm, at his desk, his firearm beside him.
The contents of the notes were disclosed to the judge in the trial, but they have not been divulged publicly. Nevertheless, a key phrase from one of the notes found its way into the media last week: “a grave error of judgment”. Five words that coming from a senior investigating officer are enough to raise concerns.
The case was immediately adjourned pending an investigation into the circumstances of the death of DS Fox.
Last week the case was finally thrown out. A nolle prosequi was entered by the prosecution citing the superintendent’s death. It followed an investigation report on the event by gardai that the court heard included an examination of his laptop, a mobile phone, a USB device and other records. The report, heavily redacted, was released to Patrick Hutch’s legal team.
Although not stated in court, it seemed that DS Fox’s notes would have had a bearing on the trial. They were offered up as “context” for adjourning the trial pending an investigation into DS Fox’s death. They could not be entered as evidence, because his death meant he could not be questioned on their content, or indeed any evidence.
The fall-out from the collapse of the so-called Regency Hotel trial is far reaching. It was evident in the north inner city within hours, with an armed Garda patrol keeping vigil close to family home of Patrick Hutch, a free man in legal terms but a marked man. He is believed to have left the country, having been whisked away on the back of a motorbike from the Central Criminal Court last week.
Across the river in Crumlin, behind her gated former coun- cil house on Raleigh Square, Sadie Byrne raged at justice denied for her son, David Byrne. He was a criminal whose murder at the Regency Hotel fuelled the spiral of revenge killings with 18 now dead. Among the victims — who are mostly on the side of the Hutch gang — are innocent people unconnected to any of the events and others who were targeted because of their name. Gardai predict more bloodshed.
For his loved ones, the shock and sheer tragedy of Colm Fox’s death has no doubt been compounded by the events of last week. Although a personal tragedy, there is a public interest in establishing whether there are lessons to be taken from the collapse of a high profile and important criminal trial.
In the anniversary month, two investigations are being held into his death and a review has been requested by the Minister for Justice, Charlie Flanagan, to see whether lessons can be learned.
The Garda Ombudsman, GSOC, is also investigating the death of DS Fox, and the circumstances leading to it, which could encompass whether the investigation into David Byrne’s death, and his handling of it, had any bearing on his death. Garda Commissioner Drew Harris will appear before the Policing Authority later this week to answer questions on the collapse of the trial, and whether Garda failures had anything to do with it.
According to one source last week, DS Fox had been uncovering his correspondence and based on what he found, and feeling severe pressure, may have felt the case was going to fall on the identification process — which may not necessarily have been the case.
Whether there was any substance to the “error of judgment” reference in one of DS Fox’s notes is not known. Some sources have suggested not.
For many of his colleagues, the pressures on DS Fox deserve equal weight in any investigation into the circumstances of his death. They are pressures shared by many detectives on the front line of crime, who are in a state of constant conflict, with criminals, or in court, where justice demands that their every decision is properly scrutinised.
Colm Fox had been juggling multiple cases and his workload was enormous. Colleagues said he embraced the work. He was an experienced, investigator, and well used to the combat of criminal trials. He did not display anxiety or nerves. Calm, measured and meticulous were words that were used to describe him.
He spent the guts of his career on the front line of organised crime. He was in Crumlin Garda Station for the notorious Crumlin/Drimnagh feud, a detective sergeant in Dublin’s north inner city and a detective inspector in Blanchardstown.
He had two brief stints in the less gruelling end of policing — a brief sojourn in Swinford, Co Mayo, and then in the fraud squad when he was promoted to superintendent. He was dispatched back to north Dublin as detective superintendent for the region.
Senior investigating officer is a job with considerable responsibility. He or she leads major crime investigations and is accountable to chief officers for the conduct of the investigation. The serious crime investigation diploma is the flagship course at the Garda’s Crime Training Faculty. It’s a role that is considered best practice internationally.
But according to gardai, the pressures can be relentless, not least because of key difference to how we do things here. “In the UK, SIOs handle very few investigations at the same time,” said gardai. “Here SIOs are leading multiple investigations at the one time.”
For each separate investigation, the SIO is responsible “from the time the crime is reported to you. You are responsible for it all: scenes of crime, lines of inquiry, house to house inquiries, media strategy, community strategy”.
There is a “mentoring system” in the force for senior investigating officers but when you’re called out at 3am to a crime scene, and decisions have to be made, “you are on your own”.
“We always say you are only as good as your last case,” said a garda. “You are a great person when it goes well. You get the plaudits. But by Jesus when it goes wrong, you are on your own.”
No one can tell where DS Fox’s mind was at that Saturday evening in his office in Ballymun. In his eulogy at his funeral mass, Assistant Commissioner Barry O’Brien, a close friend, described the “bewilderment” in discovering that this man who had such an enormous capacity for others had in the weeks before his death “embarked on a lonely journey himself ”.
‘Colm Fox had been juggling many cases and his workload was enormous’