Northern Bank ‘money launderer’ may go free

This story was first published in the Irish Mail on Sunday on 11/03/2012

By: Michael O’Farrell
Investigations Editor

TED CUNNINGHAM – the only person jailed following the €31.4m Northern Bank robbery – looks set to be freed because of a Supreme Court ruling on the type of warrant used to search his house.

The Irish Mail on Sunday has learned that Mr Cunningham lodged a bail application last Thursday. He had already lodged appeal proceedings based largely on the warrant used, which were due to be heard within weeks.

Mr Cuningham was convicted after gardai investigating the robbery found more than £2.3m (€2.7m) in sterling bank notes in a locked basement cupboard.

His trial heard how Mr Cunningham had accompanied gardaí down to his basement where they asked what was in a locked cupboard visible in the room. He replied: ‘A couple of million sterling.’ ‘That money is not from the Northern Bank robbery,’ he added, before explaining that the funds were from the sale of a sand pit.

Mr Cunningham later claimed that he had been set up by gardaí. The claim was rejected and he was convicted and jailed for ten years.

However a Supreme Court decision last week found that the search warrant used to conduct the search is unconstitutional.

The warrant in question, a section 29 warrant, was introduced in 1976 to allow senior gardaí to authorise an emergency search without recourse to an independent judge.

Now this Garda self-issue warrant has been found to be ‘repugnant’ to the Constitution by the courts, because it allows gardaí to override the protection the Constitution affords to the home.

The ruling opens the door for the quashing of any pending and former convictions based on section 29 warrant searches.

Already this week a man being prosecuted for firearms offences walked free when the State dropped its case, apparently concerned over the warrant used in the case.

Senior barrister Paul McDermott has warned of a rising number of appeals based on the faulty warrant.

He told the MoS: ‘It’s very difficult to isolate the cases involved but I think they will be coming into the system quite soon.’ The DPP has begun a review of all serious crime files to establish how many major criminal prosecutions may collapse due to evidence obtained with section 29 warrants. It is not known exactly how many cases are affected.

In Mr Cunningham’s case, the DPP has not yet conceded anything and indicated last Thursday that it would oppose the bail application.

However, legal sources now believe that even if Mr Cunningham is not released prior to his appeal hearing, he is virtually certain of having his conviction quashed because much of the evidence against him was based on the controversial warrant.

The Northern Bank robbery – the largest bank heist ever in Ireland or England – is believed to have been carried out by the Provisional IRA on 20 December 2004.

During the ensuing investigation – led by then Detective Superintendent Tony Quilter – gardaí searched Mr Cunningham’s home under a warrant issued by Mr Quilter himself under Section 29.

During the search, on February 17 2005, they discovered the sterling bank notes in a locked basement cupboard.

Cunningham was arrested and the money was seized and used as evidence.

But last week’s Supreme Court judgement took exception to the fact that many section 29 warrants are authorised by senior gardaí who cannot be seen as independent in any way because they are directly involved in the investigation that the warrant is for.

This scenario applies to Mr Cunningham’s conviction because Mr Quilter, now an Assistant Commissioner, was the lead investigator into the Northern Bank raid when he authorised the search warrant.

The authorities were repeatedly warned as far back as 1998 by the Law Reform Commission and again at the Morris Tribunal about the need for warrants to be independent of investigating gardaí.

Will ‘monster’ get out too?

THE Section 29 warrants fiasco also applies to a tiger kidnapper serving 25 years for imprisoning a Securicor driver’s family – and who was described by a judge as an ‘inhuman monster’.

Mark Farrelly – who kidnapped the family during a multimillion euro heist – will also be able to challenge his conviction because gardaí used the now discredited warrant to obtain evidence during a search of his home.

Farrelly and his accomplices were jailed in November 2009 after they were found guilty of a €2.3m heist involving the kidnapping of mother Marie Richardson and her two teenage sons at their home in Raheny in March 2005.

Handing down sentence Judge Tony Hunt described the kidnappers as ‘inhuman monsters’ and praised the family’s courage.

Just as in the Ted Cunningham case, gardaí used a section 29 warrant to search Farrelly’s home.

There they found cable ties of the same type used to tie up the victims as well as five mobile phones and spare Sim cards.

This case is just one of many that might now be challenged and overturned following the new Supreme Court ruling.