NI Crown Court: Defendants acquitted of charges relating to alleged misconduct in public office

About this case:

• Citation:
  [2025] NICC 19
• Judgment:
  External link
• Court:
  Crown Court
• Judge:
  Judge Gordon Kerr QC

​Delivering judgment for the Crown Court, His Honour Judge Gordon Kerr was satisfied that although Mr Bryson and Mr McKay had orchestrated the presentation of Mr Bryson’s evidence to the NI Assembly Committee of Finance and Personnel so that same could be publicly reported upon, there was no evidence of agreement to commit any act outside of Mr McKay’s duties as Chairman of the Committee.

The prosecution were represented by Mr Hedworth KC and Mr Murphy of Counsel. The first defendant was represented by Mr Larkin KC and Mr O’Keefe KC, the second defendant by Mr Fahy KC and Mr McKenna of Counsel and the third defendant by Mr O’Rourke KC and Mr Halleron of Counsel.

Background

The National Asset Management Agency (NAMA) sold its Northern Irish portfolio of property loans to the highest bidder, Cerberus Capital Management, a New York investment forum as part of a project entitled “Project Eagle”.

Thereafter, an independent TD in the Dáil claimed that a Belfast law firm had an off-shore account containing a payment arising from Project Eagle earmarked for a Northern Irish politician.

The Law Society of Northern Ireland commenced an investigation into the allegations, which were referred to the PSNI. The PSNI’s investigation was led by the National Crime Agency (NCA) which met with members of the NI Assembly Committee of Finance and Personnel (CFP) on 15 July 2015 and it was agreed that the CFP would set up terms of reference to avoid prejudicing the investigation or resultant court proceedings.

The evidence given by witnesses appearing before the CFP would be prima facie in open session if a witness could show a direct link to persons who were within the terms of reference.

The main case against the defendants arose from retrieved letters and emails between Mr Bryson, a Loyalist blogger, and the CFP in relation to his attendance before the CFP as a witness, social media and email correspondence between Mr Bryson and Mr McKay, then a sitting Member of the Legislative Assembly (MLA) and Chairman of the CFP, and social media and messages between Mr Bryson and Mr O’ Hara, a Sinn Féinparty worker.

The evidence suggested that the three defendants strategized to ensure that Mr Bryson could present his evidence as to the beneficiaries of the proceeds of the off-shore account before the CFP in open session, so that his evidence could benefit from absolute privilege and could be publicly reported upon without legal repercussions. He attended before the CFP on 23 September 2015 and named those parties in open session, one of whom was then first minister Peter Robinson.

All three defendants were charged with conspiracy to have Mr McKay commit the offence of misconduct in public office. Mr McKay was charged with the substantive offence of misconduct in public office.

The prosecution alleged that Mr McKay was aware that Mr Bryson intended to name the persons and that he dishonestly assured the CFP members that Mr Bryson would stick to the agreed prepared evidence and that Mr McKay would exercise his powers to ensure he did so, where in reality, he knew Mr Bryson would not stick to the anticipated script nor had he any intention of trying to ensure that he did.

The Crown Court

The Crown Court considered the elements of the offence of misconduct in public office as set out in Attorney General’s Reference No.3 of (2003).

As to the first element, involving a public officer acting as such, the court was satisfied that a MLA is a public officer.

As to the second element, being the wilful neglect by a public officer of their duty or wilful misconduct on their part, the court considered what Mr McKay’s duties were. The prosecution alleged that the Code of Conduct for Members of the Northern Ireland Assembly (12 October 2009) applied, which imposed duties of openness and honesty on members.

In this regard, the explained that the Code was non-statutory, that the offence of misconduct in public office is a common law offence and that “One would expect some precedent of a misconduct case to exist. On enquiry to the prosecution and confirmed by the defence there is no case of a misconduct charge based on a breach of a code of conduct in the records.”

As to the third element, that the breach must be such as to amount to abuse of the public’s trust in the office holder, the prosecution submitted that the behaviour called for criminal sanction as Mr McKay’s actions risked prejudicing the NCA investigation or undermining the fairness of future court proceedings.

The court also noted the final element of the offence, “without reasonable excuse or justification”.

The court explained the offence of conspiracy as one where a person agrees with any other person or persons that a course of conduct will be pursued which, if the agreement is carried out in accordance with their intentions, will necessarily amount to involve the commission of an offence or offences by one or more of the parties to the agreement.

Having heard the evidence, the court acquitted Mr O’ Hara of conspiracy where the evidence did not support that Mr O’ Hara had agreed a course of conduct with Mr Bryson which would necessarily lead to Mr McKay committing the specified offence, and where the unchallenged basis for his involvement was that Mr McKay was a senior party figure and a friend of Mr O’ Hara’s, who had assured Mr O’ Hara that, notwithstanding Mr O’ Hara’s concern that Mr McKay’s contact with Mr Bryson was “mad”, there was nothing criminal taking place and that Mr McKay was merely trying to find out what Mr Bryson knew.

Judge Kerr was satisfied that Mr Bryson lied on oath in respect of his contention that he did not know that he was communicating directly with Mr McKay but instead thought that he was communicating with Mr O’ Hara, where the evidence suggested that Mr O’ Hara had merely forwarded messages written by Mr McKay to Mr Bryson and vice versa, and where Mr Bryson specifically asked for Mr McKay’s guidance which he received in reply.

In this regard, the judge remarked that “That request makes sense only if he was speaking to Mr McKay, why would he care about the view of some party worker he had been palmed off with.”

The judge was similarly satisfied that notwithstanding that Mr Bryson was in agreement with Mr McKay  andthat the intended result of the agreement was to enable Mr Bryson to give evidence in open session at the CFP which Mr McKay chaired, the evidence did not show any occasion when Mr McKay undertook to say anything or do anything outside his duties as Chairman to ensure that Mr Bryson’s evidence would be in open session.

Therefore, in the absence of such an agreement, the court found that the conspiracy charge against Mr Bryson failed.

As to Mr McKay, who did not give evidence, the court explained that whilst there was no doubt that Mr McKay had deliberately misled the CFP to facilitate Mr Bryson’s presentation and largely orchestrated what Mr Bryson would say to the CFP and the manner in which he would present his evidence, that behaviour did not amount to conspiracy.

The court highlighted that this was so where inter alia there was no precedent for a prosecution based on the breach of a code of self-regulation and where there was no proof of Mr McKay’s behaviour being sufficientlyserious to have passed the threshold for seriousness outlined in the caselaw, being a risk to the health or welfare of any person, corruption, fraud or deception for gain.

Conclusion

Accordingly, the Crown Court acquitted all three defendants.

The King v James Bryson, Thomas O’ Hara and Daithi McKay [2025] NICC 19