DPP accepts phone data used to convict men was obtained unlawfully, Supreme Court told

The Director of Public Prosecutions (DPP) accepts phone location data used to secure two men’s Special Criminal Court convictions for involvement in an attempted murder was obtained unlawfully.

Caolan Smyth (30) and Gary McAreavey (55) are asking the court to quash their convictions and to reject as inadmissible phone data the prosecution said connected them to unregistered mobiles and correlated their vehicle’s movements with cell sites.

They received convictions in 2021, with Smyth jailed for 20 years for the attempted murder in May 2017 of James “Mago” Gately and possession of a firearm with intent to endanger life. Co-accused McAreavey received a three-year term for assisting an offender.

Both denied the charges and never conceded ownership of the phones attributed to them.

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On the second day of their Supreme Court appeals, the DPP’s lawyers submitted the cases centre on Irish law of evidence, particularly in relation to admissibility at trials.

When courts are considering whether or not to admit evidence, they must balance “competing rights”. The accused has rights, while the administration of justice can also be brought into disrepute, he said.

There has been a focus on ensuring the system of administration of justice is properly scrutinised, but the disregarding of “reliable, probative” evidence of guilt would also bring the administration of justice into disrepute, he said.

When measuring the privacy rights engaged due to accessing phone data, he said, one must consider factors such as whether it is a person’s primary phone, whether it was stolen or whether it was recently purchased.

“To simply say that phone data engages privacy rights is a very surface level analysis,” he said.

The phone data was retained and accessed pursuant to the Communications (Retention of Data) Act 2011, the same legislation challenged by Graham Dwyer in the Supreme Court and Court of Justice of the EU (CJEU).

The CJEU upheld Dwyer’s challenge to Ireland’s metadata system set out in the 2011 Act.

Dwyer’s subsequent appeal against his 2015 conviction for the murder of childcare worker Elaine O’Hara was rejected by the Court of Appeal last month.

The outcomes of Smyth and McAreavey’s appeals is likely to have an impact on any potential Supreme Court appeal Dwyer might seek.

Seán Guerin, senior counsel for the DPP, told the seven-judge Supreme Court that the DPP accepts the phone data evidence was unlawfully obtained. His side is “very precise” on the nature of this unlawfulness, he said, explaining it arises from certain provisions of the 2011 Act not fully conforming with articles of the corresponding EU directive.

[ Graham Dwyer loses appeal against conviction for murder of Elaine O’Hara on all grounds ]

[ Graham Dwyer’s legal battle over murder conviction: What could happen next? ]

The DPP does not accept a “broader breach”, he said.

It is “legally possible and entirely permissible” for there to be data retention that “might have captured the data in this case”, he said.

The Supreme Court reserved its decision in the appeals.

Mr Gately, who the Criminal Assets Bureau alleges is heavily involved with an organised crime group, was shot five times by the driver of a car that pulled up beside him at a petrol station on Clonshaugh Road on May 10th, 2017.

Smyth, formerly of Cuileann Court, Donore, Co Meath, was alleged to be the shooter. The car was later found burnt and McAreavey, formerly of Gort Nua, Castlebellingham, Co Louth, was alleged to have purchased petrol for the purpose of destroying it.

They appealed their convictions and the Court of Appeal held last year that the 2011 Act was still the law of the land when the investigation into the attempted murder was carried out and thus it enjoyed a presumption of constitutionality.

This was the first Court of Appeal decision on this issue following the CJEU’s ruling on the Dwyer reference.