File photo: Kevin Lunney
Gardai have repeatedly broken the law by accessing illegally retained mobile phone data, a barrister has argued at the trial of four men accused of falsely imprisoning and causing serious harm to Quinn Industrial Holdings director Kevin Lunney.
Michael O'Higgins SC told the Special Criminal Court this morning (FRI) that despite a finding by the Court of Justice of the European Union that mass retention of phone data is a serious breach of citizens' privacy rights, the government has done nothing.
He added: "That has left another arm of the executive, law enforcement, breaking the law repeatedly, for years and years and years."
Responding, Sean Guerin SC for the Director of Public Prosecutions, said the mass collection of data is "not a breach of anything". It is, he said, an interference with privacy rights which is permitted in certain circumstances such as to "shed light on serious crime."
He said European Union directives have stated that data retention is a "valuable tool" and an appropriate method of criminal investigation.
The court has heard that following rulings of the Court of Justice of the European Union and the Irish courts, gardai can no longer access mobile phone data through the Communications (Retention of Data) Act 2011. Gardai investigating Mr Lunney's abduction and assault therefore used search warrants to obtain call data records.
Mr O'Higgins said the material gardai uncovered should be ruled inadmissible because it was unlawfully obtained. Lawyers for the three other accused have adopted Mr O'Higgins' arguments.
A 40-year-old man who cannot be named by order of the court, Alan O’Brien (40), of Shelmalier Road, East Wall, Dublin 3, Darren Redmond (27), from Caledon Road, East Wall, Dublin 3 and Luke O’Reilly (67), with an address at Mullahoran Lower, Kilcogy, Co Cavan have all pleaded not (NOT) guilty to false imprisonment and intentionally causing serious harm to Mr Lunney at Drumbrade, Ballinagh, Co Cavan on September 17, 2019.
Mr Lunney has told the court that he was bundled into the boot of a car near his home and driven to a container where he was threatened and told to resign as a director of Quinn Industrial Holdings. His abductors cut him with a Stanley knife, stripped him to his boxer shorts, doused him in bleach, broke his leg with two blows of a wooden bat, beat him on the ground, cut his face and scored the letters QIH into his chest. They left him bloodied, beaten and shivering on a country road at Drumcoghill in Co Cavan where he was discovered by a man driving a tractor.
Mr O'Higgins, for the unnamed accused, said the mobile phone data was extracted from a database in a way that the European court has said is not permitted. He said that if the mass retention of data is unlawful then the manner in which gardai accessed that data cannot be lawful.
Mr O'Higgins said it was "probably unprecedented" for states to have failed to respond where the courts "at the apex of a legal system" have decided that something is unlawful. He said: "As a member state there is an obligation, and a very pressing obligation, to give effect to rights and to abide by rulings of the Court of Justice of the European Union."
He said that even after the State's arguments defending the 2011 Act were rejected by the High Court, "they continued to take the benefit of a piece of legislation that the EU has pronounced as being a particularly serious breach of rights under the EU Charter."
The Special Criminal Court is bound, counsel said, by the finding of the European court that the mass retention of mobile phone data is a "serious breach" of the Charter of Fundamental Rights.
Mr O'Higgins said the Supreme Court has ruled that where investigators breach the law inadvertently, a judge might permit the evidence, but where the breach is reckless or negligent it should be ruled inadmissible.
In this case, Mr O'Higgins said, the "absence of legality" in what investigating gardai did was "not only reckless or negligent. It was beyond that."
Gardai were aware of the court rulings and had sought legal advice, he said. The accused, counsel said, has a right to privacy and while the State might think their inability to use mobile phone data is the loss of a "valuable tool" and that the court ruling "confounds all sorts of ideas about common sense," he said, "under the rule of law you must accept it."
Mr Justice Tony Hunt, presiding, said it "offends any notion of balance and fair play" that criminals are free to use the technology with "complete impunity". He said that while people have freedoms, they come with responsibility. He added: "But I don't think it's heresy to say there's something a bit odd about the conclusions reached there."
Mr O'Higgins said the court is entitled to hold that view and say, "it's a rotten law or judgement," but the rule of law must still be applied. Justice Hunt replied: "The idea that we must accept these uncritically doesn't sit easily with me."
Besides arguing that mass retention is unlawful, the defence teams said the garda applications for search warrants contained inadequate, inaccurate or insufficient information and that search warrants are not an appropriate way to access mobile phone data.
Giollaiosa O'Lideadha SC, for Alan O'Brien, said that the warrants were disproportionate as they allowed gardai to enter the premises of the mobile phone companies and access "all data which was reasonably suspected to be evidence of an arrestable offence."
Mr Guerin will continue his submissions on Monday in front of Mr Justice Hunt, presiding, Judge Gerard Griffin and Judge David McHugh.
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