phone challenge | 

Kinahan gunman uses same Graham Dwyer tactic as Supreme Court to hear his appeal

Smyth is appealing against his conviction for the attempted murder of James ‘Mago’ Gately and possession of a firearm with intent to endanger life

Caolan Smyth was jailed for the attempted murder of James 'Mago' Gately

Graham Dwyer

James 'Mago' Gately

Tim HealySunday World

A man convicted of the attempted murder of James ‘Mago’ Gately has persuaded the Supreme Court to hear arguments that the use of mobile phone data to secure his conviction was a breach of his right to privacy.

Caolan Smyth (31), formerly of Cuileann Court, Donore, Co Meath, was sentenced to 20 years in jail in 2021 after pleading not guilty to the attempted murder of Mr Gately in north Dublin on May 10, 2017.

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. Smyth was alleged to be the shooter.

The car was later found burnt, and co-accused Gary McAreavey (55), formerly of Gort Nua, Castlebellingham, Co Louth, was alleged to have purchased petrol for the purpose of destroying it.

Smyth is appealing against his conviction for attempted murder and possession of a firearm with intent to endanger life, while McAreavey seeks to overturn his conviction for the offence of assisting an offender. McAreavey was sentenced to four years imprisonment, with the final year suspended.

The men denied the charges.

Graham Dwyer

Central to the Supreme Court appeals by Smyth and McAreavey is an argument that certain evidence from telephone data, obtained pursuant to a 2011 law, was in breach of Irish and EU law and was, therefore, inadmissible at their trial.

Their Special Criminal Court trials occurred in 2020 after the Supreme Court referred questions to the Court of Justice of the EU relating to the indiscriminate retention and access of mobile phone metadata in the case of Graham Dwyer, who awaits the outcome of his appeal against his conviction for the murder of Elaine O’Hara.

The European court subsequently upheld Dwyer’s challenge to the legality of Ireland’s metadata regime as set out in provisions of the Communications (Retention of Data) Act 2011.

In a recently published determination, a three-judge Supreme Court panel said the cases raise issues of general public importance that warrant them being considered by the highest court.

The data was used to connect an unregistered phone to Smyth and to correlate the movements of the car with cell sites used by the phone. It also demonstrated contact between this phone and another unregistered phone attributed to McAreavey, the judges said.

Neither of the co-accused conceded ownership of either phone, and the Special Criminal Court found this had implications for the extent to which they could argue privacy rights had been engaged.

The court held it was entitled to admit evidence obtained in breach of a right of privacy if that right was outweighed by competing interests of others or of the common good. It considered gardaí had sought precise, targeted and tightly focused information regarding the attempted murder.

James 'Mago' Gately

Both men appealed to the Court of Appeal, which delivered judgment after the CJEU’s ruling in Dwyer’s case.

The appeal court ruled 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.

Any interference with privacy rights was limited in the extreme, and it was relevant that the men did not claim to own the phones, the court also found.

The Supreme Court panel pointed to the complex legal background of the cases, saying it is necessary to consider the effect of, and interaction between, the Constitution, the Charter of Fundamental Rights, an EU privacy directive, and the 2011 Act.

A second issue will be considered in McAreavey’s appeal. He is also challenging the interpretation of section 7(2) of the Criminal Law Act 1997 concerning the level of knowledge or belief required to be proved to convict an accused of the offence of assisting an offender.

The trial court found it was probable, but not proven, that McAreavey knew precisely what his co-accused had been doing. However, it interpreted the 1997 Act as meaning that the prosecution could either prove knowledge or belief in respect of the specific offence committed or “some other arrestable offence” that was not specific. The Court of Appeal agreed with this analysis.

A date has not yet been set for the appeal.

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