The Special Criminal Court has ruled that secret garda recordings of conversations between Gerard Hutch and former Sinn Féin councillor Jonathan Dowdall while they were in Northern Ireland can be used as evidence against Mr Hutch in a murder trial.

Mr Hutch objected to surveillance that was carried out outside the borders of the State because he said it was illegal to do so.

The 59-year-old's conversation with Dowdall was secretly recorded by gardaí on 7 March 2016 after they bugged Dowdall's SUV.

Eight of the ten hours of their conversations were recorded in Northern Ireland and Mr Hutch said this should not be used as evidence against him in the trial.

The court ruled today that gardaí have no power to investigate or gather evidence in another State and that the gardaí cannot operate independently in another jurisdiction.

We need your consent to load this rte-player contentWe use rte-player to manage extra content that can set cookies on your device and collect data about your activity. Please review their details and accept them to load the content.Manage Preferences

Ms Justice Tara Burns said while the evidence was gathered unlawfully and the breach is of significance, the court is satisfied that the relevant officers of the National Surveillance Unit acted in good faith and the illegality was unknown.

She said the court was satisfied that the conversation ought to be admitted in interests of justice and will admit into evidence the conversations in Northern Ireland.

Mr Hutch has pleaded not guilty to the murder of Kinahan gangster David Byrne, who was shot dead at the Regency Hotel in Dublin on 5 February 2016.

Gerard Hutch objected to surveillance that was carried out outside the borders of the State because he said it was illegal to do so (File pic: RollingNews.ie)

The court was not satisfied that the fact that the Surveillance Act included references to planes and ships which can move outside the State, in the light of this country having vast "territorial waters", this submission "does not hold water".

The deployment of a surveillance device in a foreign jurisdiction "cannot be read into the act", she said.

However, Ms Justice Burns said that while the evidence was "gathered unlawfully" there was "no male fides", or bad faith, on the part of the gardaí.

The judge said they proceeded on the basis that it was lawful and that the finding of unlawfulness is "a new determination of this court".

The court did not accept either the prosecution’s argument that the devices were attached and removed in this country and the recordings also downloaded in Ireland.

Ms Justice Burns said Dowdall and Mr Hutch are clearly discussing criminal behaviour and planning a combative strategy for the Hutch family. However, she said the court has not determined that any of that conversation relates to the charge Mr Hutch faces.

The court, she said, has determined in a general way that criminality was discussed.

She also said that the "probative value of the conversation has yet to be established and the court will determine this in due course", but she said it was of "further significance" that "the evidence of the conversation can be given by the other party".

Dowdall is due to testify for the prosecution in this case.

Mr Hutch had also claimed that the authorisation of the device was not lawful and that the judge should have been told the device was going to Northern Ireland.

However, the court found today that the authorisation for the device was lawfully issued following an application in the correct format and manner to the district court judge, and there was no "breach of candour" by not telling the judge the device could go to Northern Ireland.

The court also found the gardaí did not need to tell the judge that they had also deployed a tracker device on the jeep.

"Disclosure of the tracker device could have no impact on the district judge’s decision to authorise a listening device," Ms Justice Tara Burns said.

"The court is satisfied the authorisation issued by the district court was a valid authorisation."

Under Section 14 of the Criminal Justice (Surveillance) Act 2009, surveillance information may be admitted as evidence despite any failure by the garda to comply with a requirement of the authorisation if the trial court, having regard to particular matters, decides that the garda acted in good faith, the failure was inadvertent and the information ought to be admitted in the interests of justice.