Solicitor and retired Taxing Master James Flynn has failed to get a High Court injunction stopping a garda application for a search warrant to examine data on his mobile phone.
Mr Flynn’s phone was seized and his office searched as part of an investigation by gardaí into alleged money laundering.
He retired in 2011 from his role as Taxing Master which was an independent adjudicator of legal costs and position now performed by Legal Costs Adjudicators.
He also had his own legal practice, JT Flynn & Co in Anglesea Street, Dublin, in which he continued to work and which was searched by gardaí in March 2022.
It was part of an investigation into alleged money laundering, including €4,400 in suspect banknotes which had been used by one of Mr Flynn’s clients to pay the solicitor. Mr Flynn was also arrested and questioned before being released.
It arose out of what the gardaí believed was related to efforts to exchange faded and abraded bank notes through a washing/scrubbing procedure. Known as “smurfing”, it is a money laundering technique whereby a large amount of cash is broken into multiple smaller transactions to avoid suspicion and evade regulatory reporting limits.
In the course of their investigation, a former Flynn employee told gardaí she had signed an application to exchange damaged notes through the Central Bank for undamaged notes and she inquired one day “what’s really going on with the money”.
The former employee said “James said in a reserved manner – it’s dyed money ... it’s [the name of the client who had paid the solicitor using the banknotes] “.
Gardaí, in applying for a warrant to the District Court to search his offices, said they believed the “smurfing” activity was indicative of an attempt by Mr Flynn on behalf of the client who gave him the cash to launder the funds and that he was either reckless or complicit in that process.
As a result of the search of his office, Mr Flynn and his firm brought High Court judicial review proceedings seeking to quash the warrant. He claimed it was unlawful and sought an end to what he called a “spurious investigation”. He also sought the return of items seized from him and his office.
While a hearing was awaited in that challenge, last November Mr Flynn was told by the Chief State Solicitor that another application would be made to the District Court seeking to examine data on his phone. A protocol was proposed for the identification of data over which Mr Flynn wished to claim legal professional privilege.
Mr Flynn then asked the High Court for an injunction preventing gardaí from applying for another search warrant to access his phone. The gardaí and the State opposed the application.
In a judgment, Mr Justice Anthony Barr ruled that the warrant application to the District Court could go ahead but he directed that the judge hearing it should be provided with copies of certain case law about the right of the authorities to access personal data. The District Court judge should also be provided with a copy of his judgment.
The judge said case law makes it clear that the right to privacy is engaged when a state authority seeks to enter into a person’s digital space by accessing data on the person’s computer, mobile phone, laptop, or other similar devices.
He did not accept arguments on behalf of the gardaí that someone aggrieved by any such interference, or possible interference, must await any ensuing criminal trial before they can challenge what has happened, or what may happen, if access is permitted.
Notwithstanding that the court was satisfied Mr Flynn had an arguable case in his substantive proceedings, he was not satisfied that it was appropriate to grant the injunction he sought.
He said the District Court judge who will hear the warrant application may well conclude that granting a warrant may be disproportionate to the invasion of Mr Flynn’s right to privacy and breach his right to assert legal privilege and not issue a warrant.
However, that was a matter for that judge, he said.
- Sign up for push alerts and have the best news, analysis and comment delivered directly to your phone
- Find The Irish Times on WhatsApp and stay up to date
- Our In The News podcast is now published daily – Find the latest episode here