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27/07/2021

KEVIN LUNNEY TRIAL: Gardai were entitled to use mobile phone data - barrister

Court

KEVIN LUNNEY TRIAL: Gardai were entitled to use mobile phone data - barrister

File photo: Kevin Lunney

Lawyers for the State have told the Special Criminal Court that gardai were entitled to use mobile phone data in their investigation of the abduction and assault on Quinn Industrial Holdings director Kevin Lunney.

Sean Guerin SC has continued his submissions to the three-judge, non-jury court, saying that the Court of Justice of the European Union does not prohibit the mass retention of mobile phone data. Quoting a recent Spanish case that went before the European court, Mr Guerin said the EU court had decided that the legality of retention of data was a matter for national courts alone.

He also said that while the information sought to be used in the trial was a "serious interference" with the privacy rights of the accused men, the interference was justified because gardai were investigating "serious crime".

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.

Michael O'Higgins SC, for the unnamed man, has previously told the court that gardai broke the law when they used search warrants to access mobile phone data from service providers Meteor and Vodafone. Mr O'Higgins said 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."

Mr Guerin responded that the retention is not a breach of anything but an "interference" with privacy rights. Such interference, he said, is allowed in certain circumstances including for the investigation of serious crime. Counsel said that in the Spanish case the court had considered the legality of accessing mobile phone data and did not conclude that mass retention was unlawful. 

Mr Guerin also told the court that mass retention of data is mandated in Irish law by the Communications (Retention of Data) Act 2011. He said the High Court had concluded that such mass retention was prohibited by the EU but, Mr Guerin said, the Supreme Court has since disagreed with the High Court's conclusion. Counsel told the court that it cannot "disapply" the 2011 Act until it is clear what the EU court requires.

Mr Guerin will continue his submissions tomorrow in front of Mr Justice Tony Hunt, presiding, with Judge Gerard Griffin and Judge David McHugh.

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