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legal challenge Defence objects to procedure used by gardaí to secure phone records in Kevin Lunney abduction trial

Gardaí got the data using search warrants under section 10 of the Criminal Justice (Miscellaenous Provisions) Act 1997, which were granted by a district court judge

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Businessman Kevin Lunney was abducted near his home in Co Fermanagh on the evening of September 17 2019 (BBC Spotlight/PA)

Businessman Kevin Lunney was abducted near his home in Co Fermanagh on the evening of September 17 2019 (BBC Spotlight/PA)

Businessman Kevin Lunney was abducted near his home in Co Fermanagh on the evening of September 17 2019 (BBC Spotlight/PA)

LAWYERS for the accused in the Kevin Lunney abduction trial have objected to the procedure used by gardai to secure phone records.

Michael O’Higgins SC, for one of the four defendants, is challenging the legislation under which officers got warrants to access the data from mobile providers.

He has told the Special Criminal Court the records are inadmissible as prosecution evidence, and his arguments are also being adopted by lawyers for the other co-accused.

Four men are on trial at the non-jury, three-judge court charged over Mr Lunney’s kidnapping and torture in 2019.

The Quinn Industrial Holdings director (52) was bundled into a car outside his Co Fermanagh home and taken to a container where his captors broke his leg, slashed his face with a stanley knife and doused his wounds in bleach while ordering him to resign from the company.

They carved “QIH” into his chest with the knife and told him it was so he would “remember” before dumping him on a roadside in Co Cavan, the court has heard.

Darren Redmond (27), of Caledon Road, Alan O’Brien (40) of Shelmalier Road, both in East Wall, Dublin, and a man “YZ” (40), who cannot legally be named, are all alleged to have been directly involved in the attack.

Luke O’Reilly (67), from Mullahoran Lower, Kilcogy, Co Cavan allegedly provided “material assistance in the planning and execution of the offences" and owned the land where Mr Lunney was allegedly held.

They all face the same charges of false imprisonment and causing serious harm to Mr Lunney at Drumbrade, Ballinagh, Co Cavan, on September 17th, 2019, which they deny.

Mr O’Higgins was making submissions for a second day today in his challenge to the phone evidence.

The court heard gardaí got the data using search warrants under section 10 of the Criminal Justice (Miscellaenous Provisions) Act 1997, which were granted by a district court judge.

It had been no longer possible to use their normal procedure through garda Security and Intelligence, using the Communications (Retention of Data) Act 2011.

This was because the 2011 Act is at the centre of convicted murderer Graham Dwyer’s ongoing legal challenge to Ireland’s mobile data retention system. His challenge has been upheld by the High Court but referred by the Supreme Court to the Court of Justice of the European Union.

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Today, Mr O’Higgins said Articles 7 and 8 of the EU Charter of Fundamental Rights set out that everyone had a right to respect for their private and family life, home and communications, and protection of personal data.

After an EU directive was introduced, the onus was on member states to introduce legislation to give effect to its requirements. He said it was never intended that this would be covered by legislation that was already five years old - the 1997 Act.

There had been issues in relation to the 2011 Act’s compatibility with EU law for a number of years. Mr O’Higgins referred to a 2017 report by the former chief justice John Murray which found the 2011 legislation amounted to mass surveillance of the population of the State, which it concluded was in breach of European law.

Mr O’Higgins said the government could have amended the legislation but this was not done.

“What they did do was, no matter what roadblock was put up, the policy appears to have been, plough on. And when it reached a point where ploughing on was no longer an option then the guards, who are to some extent caught in the middle of all this and have to investigate crime, resorted to the 1997 Act.”

What had happened for years was an “elastic band approach" and “we are now ten years on and no sign of a bill before the Oireachtas,” Mr O’Higgins said.

He said he would be making the case that “it’s a series of dominoes”, that there was no legal premise for the material being generated and handed over and “Section 10 doesn’t cure the access point.”

“If we are correct in that, then the material is unlawfully obtained,” he said.

The trial continues before Mr Justice Tony Hunt, Judge Gerard Griffin and Judge David McHugh.

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