The High Court has prohibited a third trial for Niall Byrne over an alleged robbery and false imprisonment, but refused to restrain a third trial for David Byrne, citing the prospect of potentially persuasive new evidence against him.
The two judicial review applications were heard together by Mr Justice Hogan. The applicants had faced two trials over charges arising from the March 2005 abduction of a security company employee’s wife and children and the theft of €2.28 million from a cash-in-transit van. Juries disagreed on verdicts for both men at each trial. The first trial lasted 65 days, and the second brought the combined duration of the trials to 90 days.
The court said there was no firm legal rule against a third trial after two jury disagreements. But it applied a working presumption that another trial would generally be barred unless unusual circumstances justified it. The seriousness of the charges weighed in favour of another trial; the two lengthy trials and the disagreements on the merits weighed strongly against one. The judge also noted the men’s onerous bail conditions and the stress reported by them and their families, while observing that neither had provided third-party medical reports.
For Niall Byrne, the prosecution accepted there was no new evidence. The judge concluded that another jury would be in no better position than the previous two and that a third trial would be unfair. He granted an order prohibiting it.
The position differed for David Byrne. The prosecution said a detailed analysis of telephone records could link him to a mobile phone, described in the trials as the “purple” telephone, used during the kidnapping. It relied on a sequence of calls involving the phone and numbers said to be associated with Byrne, and on evidence that Byrne and Terence Dunleavy knew each other. Byrne denied being the person recorded as “Davey” or “Mousey Byrne” in a witness’s contacts and denied involvement with the purple phone. The judge noted that the witness had admitted giving perjured evidence at an earlier trial.
The judge made no finding that the prosecution’s analysis was correct or that the evidence would be admissible. He said it might be weak or speculative, but could also prove highly persuasive to a jury. That possibility was the sole reason he refused to prohibit a third trial for David Byrne. The judgment did not decide his guilt or order a conviction; it left the prosecution able to proceed to a further trial.
The court also rejected an objection that taking a further statement from the witness amounted to coaching, while expressing no view on the statement’s merits or admissibility.