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privacy challenge Mobile phone evidence gathered for Kevin Lunney abduction trial in breach of EU law, court told

Four men are on trial charged over Mr Lunney’s kidnapping and torture in 2019.

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Kevin Lunney

Kevin Lunney

Kevin Lunney

THE gathering of phone evidence in the Kevin Lunney abduction trial was an “egregious” breach of the accused men’s constitutional and EU rights to privacy, a defence lawyer has argued.

Michael O’Higgins SC, for one of the defendants, has told the Special Criminal Court the retention of the data was unlawful and is asking for it to be excluded from the trial.

Mr O’Higgins was making legal submissions challenging the phone evidence for a third day at the non-jury, three-judge court.

His arguments are being adopted by lawyers for the other co-accused.

Four men are on trial 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 is accused of providing “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 has objected to the legislation used by the gardai to access the phone data.

The court heard gardai got the data using search warrants under section 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997.

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

The 2011 Act is at the centre of convicted murderer Graham Dwyer’s ongoing legal challenge to Ireland’s mobile data retention system, which has been referred to the Court of Justice of the European Union.

Mr O’Higgins said the 2011 Act was in breach of EU law and using a search warrant under the 1997 Act did not “cure” the problem with accessing the data.

He argued that the data was unlawfully gathered, saying it had been extracted from a database that had been indiscriminately retained.

EU law said that “you cannot do that”, save for exceptional circumstances that “do not arise in this case,” he said.

If the material was unlawfully gathered, he said, the “access point is superfluous.”

“You can’t cure an unlawful gathering by an access process,” he said.

He said it was possibly unprecedented that courts at the “apex of the legal system” had pronounced a manner of doing things unlawful and the EU member states that were bound to respond to this “have not responded.”

As a member state, Ireland had an obligation to give effect to rights and to abide by rulings of the Court of Justice of the EU and that “has not been done.”

“That has led to another arm of the executive, being law enforcement, breaking the law repeatedly for years and years and years,” Mr O’Higgins said.

Even after a case was made at the High Court in relation to access “they continue to take the benefit of a piece of legislation which the EU has pronounced as being in particularly serious breach of the rights in the EU charter,” he said.

Mr O’Higgins said he could not think of any other circumstance where something that was a part of an investigation and trial process had been pronounced on in that way and the response was “deafening silence.”

“My submission is, the breach in this case is an egregious breach that has been perpetrated again and again, despite the rulings from the courts,” he said.

The material sought to be relied on by the prosecution was unlawfully generated, he said.

His argument was that it was “simply unlawfully obtained”, or a breach of the constitutional right to privacy or a breach of privacy under the EU constitutional guarantees in the Charter of Fundamental Rights.

YZ had a right to privacy and "that shouldn't be displaced except in circumstances that are reasonable and proportionate," he said.

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

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