The use of mobile phones records to convict a Kinahan gang hitman of attempted murder was a breach of his right to privacy under Irish and European law, the Court of Appeal has heard.
Caolan Smyth (30), formerly of Cuileann Court, Donore, Co Meath, but now a prisoner at Cork Prison, had pleaded not guilty to trying to kill James ’Mago’ Gately on May 10th, 2017.
Gately, a member of the rival Hutch faction, was shot five times as he sat in his car at a Topaz filling station on the Clonshaugh Road in north Dublin. The victim, who was warned by gardaí of a threat to his life, wore a bullet-proof vest and survived being shot in his upper chest and neck.
Co-accused Gary McAreavey (54), formerly of Gort Nua, Station Road, Castlebellingham, Co Louth, but now in Portlaoise Prison, had pleaded not guilty to acting to impede an apprehension or prosecution by assisting in the burning out of the vehicle used in the attempted murder at Newrath, Dromiskin, Co Louth on the same day.
Both men were found guilty of the charges following a Special Criminal Court trial in January of last year. Smyth was sentenced to 20 years and McAreavey was jailed for three years. The men have since appealed against their convictions.
In a written submission, lawyers for Smyth argued that the trial court had erred by admitting into evidence mobile phone data that had been gathered pursuant to the Communications (Retention of Data) Act 2011.
Incompatible with law
It was further argued that a judgment by Mr Justice Tony O’Connor in the Dwyer v the Garda Commissioner case in 2018 had “granted declaratory relief to the effect that Section 6 of the 2011 Act was incompatible with European Union law”.
At the Court of Appeal on Thursday, John Fitzgerald SC, for Smyth, said the case against his client had been “complicated and dense” and had relied on mobile phone evidence.
He said the prosecution contended that a combination of CCTV footage and mobile phone location data had proved that shortly after Gately was shot the car used in the shooting – a black Lexus – was driven from the scene to Dromiskin by Smyth.
It was the State’s case, he said, that Smyth was met by McAreavey there and that the two men set the car on fire, destroying it completely.
However, counsel continued, it was submitted that the gathering and retention of the mobile phone evidence used against his client had breached his client’s right to privacy under Irish and European Union (EU) law.
“We can safely say that Mr Smith would not be here were it not for the availability of call record data showing his location around the time of the shooting,” Mr Fitzgerald said. “In summary, the material at the core of this case was retained in breach of Irish and EU rights law.”
In response, Anne-Marie Lawlor SC, for the Director of Public Prosecutions (DPP), said Mr Fitzgerald was entirely correct to state the prosecution case had relied on mobile phone data.
Legally recovered
Ms Lawlor also advised the court that the DPP would be relying on their written submissions, which stated that the phone records used to convict Smyth had been recovered legally by gardaí.
Furthermore, the DPP argued that legislation used to access the data is “good law” in Ireland and will remain so until determined otherwise.
In an appeal running in tandem, lawyers for McAreavey, who was convicted of assisting an offender contrary to Section 7 (2) of the Criminal Law Act 1997, claim the Special Criminal Court erred in finding that their client was aware that Smyth had committed a serious offence when the two men met to burn out the Lexus.
Hugh Hartnett SC, for McAreavey, told the court that “at no stage” during his client’s trial did the prosecution attempt to lead evidence which would have given an insight into the his client’s state of mind at the time of the offence.
Dean Kelly SC, for the DPP, said there was “no ambiguity or even a hint of ambiguity in the plain words” of the legislation used to convict McAreavey.
Judgment was reserved on the appeal.