Court rejects Caolan Smyth’s challenge to phone data in attempted murder case

This report is a localnews.ie summary based on public court reporting and records; sources are listed below.

The Court of Appeal ruled on 28 July 2022 that gardaí were entitled to access mobile phone data used in the investigation that led to the convictions of Caolan Smyth and Gary McAreavey. The court rejected an argument that the absence of independent oversight prevented access to the data.

Delivering the judgment, court president Mr Justice George Birmingham said the 2011 law used to obtain the data remained in force in 2017 and had the presumption of constitutionality. He said the public interest in investigating crime, including victims’ rights, outweighed the limited privacy rights attached to the data.

Smyth’s lawyers argued that the trial court had erred in admitting the data. John Fitzgerald SC said its gathering and retention breached Smyth’s privacy rights under Irish and EU law. The lawyers also argued that a 2018 judgment had found section 6 of the 2011 Act incompatible with EU law.

Mr Justice Birmingham agreed with the Special Criminal Court, which admitted the phone evidence and convicted Smyth and McAreavey after a trial in 2020. He said the interference with privacy was slight: neither man accepted that the numbers belonged to him, and further evidence was needed to link the numbers to them. The court said the data was tightly focused on the attempted murder and did not itself reveal details such as where the phone owners lived or worked.

James 'Mago' Gately survived being shot five times in his car at a petrol station on the Clonshaugh Road in north Dublin on 10 May 2017. Smyth was convicted of his attempted murder and of possessing a firearm with intent to endanger life. McAreavey was convicted of assisting Smyth by purchasing petrol and helping to burn out a black Lexus used in the attempted murder, at Newrath, Dromiskin, Co Louth, on the same day.