The Court of Appeal has dismissed appeals by Caolan Smyth and Gary McAreavey against their convictions arising from the 2017 shooting of James Gately at a Dublin filling station. The court rejected challenges to telephone evidence and to the interpretation of the offence of assisting an offender.
The judgment, delivered by Birmingham P. on 28 July 2022, concerned convictions entered by the Special Criminal Court on 5 January 2021. Smyth was convicted of attempted murder and possessing a firearm with intent to endanger life. McAreavey was convicted of assisting an offender. The appeals were heard together.
The prosecution case against Smyth relied on circumstantial evidence, including CCTV, vehicle movements and records from a phone known during the proceedings as the “691 phone”. Prosecutors argued that the phone could be attributed to Smyth and that its cell-site data tracked the route of the vehicle used in the shooting. McAreavey’s appeal also concerned phone evidence, including records linking a number attributed to him with the 691 phone.
The appellants argued that the telephone records had been retained and accessed under Ireland’s Communications (Retention of Data) Act 2011 despite European court rulings finding problems with the data-retention regime and safeguards for access. The Court of Appeal agreed with the Special Criminal Court’s conclusion that the records were admissible. It considered the privacy interference in this case limited, given the focused data requests and that ownership of the phones had not been claimed. It also agreed that the public interest in investigating serious crime outweighed the privacy interests engaged. The court held that the trial court had not erred in admitting the evidence and rejected the related appeal grounds.
McAreavey separately argued that the prosecution had to identify a specific alternative arrestable offence that he knew or believed Smyth had committed. The Court of Appeal rejected that interpretation of section 7(2) of the Criminal Law Act 1997. It held that the provision allows the prosecution to rely on knowledge or belief that the principal offender committed an arrestable offence, without identifying a particular offence under the alternative limb.
The court was reviewing convictions, not conducting a new trial. It was not persuaded to uphold any ground advanced by either appellant and dismissed both appeals. The judgment does not set out any separate sentence or further order.