Gardaí investigating attempted Kinahan gang hit entitled to access mobile phone data, court finds

The Court of Appeal has found that a European ruling on privacy arising from Graham Dwyer’s bid to overturn his murder conviction did not prevent gardaí from accessing mobile phone data during an investigation into an attempted Kinahan gang hit in 2017.

Dwyer (49), a Cork-born architect who lived in Foxrock in Dublin, murdered vulnerable childcare worker Elaine O’Hara in August 2022 but was later successful in his challenge against the legality of the use of mobile phone data in his trial. His appeal against his conviction is due to go ahead next December.

Thursday was the first time the Court of Appeal has been asked to rule on the use of mobile phone data since the Court of Justice of the European Union (CJEU) ruled in April in Dwyer’s favour, saying that Ireland’s system of indiscriminate retention of mobile phone data for use in criminal investigations is a breach of European law.

The three-judge court on Thursday found that admissibility of evidence is a matter for national courts and in the case of Caolan Smyth and Gary McAreavey, gardaí were entitled to access mobile phone data that helped to secure their convictions relating to the attempted murder of James “Mago” Gately.

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Gardaí investigating the attempted assassination used a 2011 Act that allowed them to access mobile phone data without any judicial oversight. In 2017, when gardaí were investigating Smyth, concerns had already been raised in the Irish and European courts that the 2011 Act was in breach of EU law.

However, the Court of Appeal on Thursday ruled that in 2017 the Act was still the law of the land and therefore had the presumption of constitutionality. Delivering the judgment, president of the court Mr Justice George Birmingham also said that the “limited privacy right attached to the data” was outweighed by the rights of victims and the public interest in the investigation of crime.

In the European court’s ruling in April, it said that access to mobile phone data should be overseen by the courts or some other independent authority. Smyth’s lawyers complained that under the 2011 Act there was no such oversight.

Mr Justice Birmingham dismissed that argument, saying it is “inconceivable that if such an authority existed, and approval had been sought, that access would have been refused”. He said any refusal to allow gardaí access to the mobile phone data they requested during the investigation of the attempted murder would have been “arbitrary and capricious”.

Mr Justice Birmingham said he agrees with the findings and approach of the Special Criminal Court, which allowed the mobile phone evidence and convicted Smyth and McAreavey following a trial in 2020.

Smyth (30), formerly of Cuileann Court, Donore, Co Meath, but now a prisoner at Cork Prison, was found guilty of Mr Gately’s attempted murder and was also convicted of possession of a firearm with intent to endanger life. McAreavey (54), formerly of Gort Nua, Station Road, Castlebellingham, Co Louth, but now a prisoner at Portlaoise Prison, was convicted of assisting Smyth by purchasing petrol and assisting in the burning out of a black Lexus, used in the attempted murder, at Newrath, Dromiskin, Co Louth.