The Court of Appeal has declined to continue an interim injunction preventing gardaí from examining data downloaded from solicitor James Flynn’s mobile phone. The decision concerns only the period while the court reserves judgment on a separate application for interlocutory relief; it does not decide that main application or the underlying judicial review challenge.
The judicial review proceedings challenge the constitutionality of a statutory search power and seek a declaration that it is incompatible with the European Convention on Human Rights. The appellants say the law lacks safeguards for privacy and legally privileged material. The State respondents accepted that the case was arguable, while describing it as weak.
The appeal arose after the High Court refused interim and interlocutory injunctions in February 2024. The Court of Appeal heard the appeal on 31 May. It had briefly restrained examination of the phone data over the bank holiday weekend, then considered whether that restraint should remain in place while it reserved judgment on the main interlocutory application. The court said it would make every effort to deliver that judgment before the end of the court term and did not expect the reservation to exceed eight weeks.
Gardaí seized Flynn’s phone in March 2022 during a search of the offices of J.T. Flynn & Co, Solicitors, as part of an investigation into suspected money laundering offences. The data was forensically downloaded, but the judgment says it had not been examined. A further warrant, issued by the District Court on 29 March 2024, authorised a search and examination of the phone data. It followed a sworn information in which Detective Sergeant John Cahill committed the investigation team to use a protocol proposed by the Chief State Solicitor to protect privacy and legal professional privilege. The phone was seized under that warrant on 2 April.
The Court of Appeal said the statute was presumed constitutional and that the appellants’ case appeared stateable but not particularly strong, based on the pleadings. It accepted that legally privileged material must be protected, but considered the proposed protocol and the sworn commitment sufficient to address the concerns raised for the short period at issue. The judges also said that enforcing a valid warrant was an important consideration and that the appellants had not shown circumstances justifying its non-enforcement at this stage.
The court therefore declined to continue the temporary injunction. Its ruling did not decide whether interlocutory relief should be granted pending the outcome of the substantive proceedings. It also did not determine the constitutional or Convention challenge. The court said the State respondents could be held to their sworn commitment to operate the protocol.