The High Court has refused an injunction that would have stopped Gardaí applying for a warrant to examine data on a solicitor’s seized mobile phone. Mr Justice Barr said the solicitor’s challenge to the law governing such searches was arguable, but an injunction could hold up an ongoing money laundering investigation for months and harm the public interest.
The first applicant, James Flynn, is a practising solicitor and retired High Court Taxing Master. His firm, J.T. Flynn and Co. Solicitors, was the second applicant. The judgment says Mr Flynn is a suspect in an ongoing Garda investigation into suspected money laundering. He has not been charged, and the court made no finding that he committed an offence.
The investigation followed the Central Bank’s referral of a second batch of damaged banknotes to Gardaí. The judgment recounts that the notes were said to have been paid to the firm for legal services. A Garda affidavit described evidence suggesting the notes had been washed or scrubbed, rather than accidentally damaged by fire, and referred to an alleged plan to seek exchanges in smaller batches. Those were investigative assertions, not findings by the High Court.
Gardaí searched the firm’s Dublin offices under a warrant on 4 March 2022 and seized Mr Flynn’s phone when arresting him. He was interviewed and released without charge. The phone data had been downloaded but, as of the hearing, the investigation team had not examined it. Gardaí proposed a targeted search and a process for independent assessment of any legal professional privilege claims; Mr Flynn rejected that proposal.
Mr Flynn sought to prevent Gardaí both from seeking a further warrant and from examining the downloaded data. The court held that his substantive judicial review case was not premature: accessing a phone engages privacy rights, and in some circumstances a person need not wait for a criminal trial to challenge a threatened search. It also found an arguable case that section 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997 may be incompatible with constitutional and European human rights protections, including safeguards for privileged material.
But the court refused the requested interim orders. It said section 10 must be treated as constitutionally valid unless and until a successful challenge sets it aside. Preventing Gardaí from even applying for a warrant could, given the remaining steps in the judicial review, delay the investigation by an estimated six to 12 months.
The refusal did not approve a phone search. If Gardaí apply for a warrant, the District Court judge must be told that Mr Flynn is a solicitor, that he claims privilege over phone material, and that the proposed search would intrude into private digital data. Justice Barr directed that the judge receive copies of the Supreme Court decisions in Quirke and Corcoran, the European Court of Human Rights decision in Saber, and this judgment. The District Court judge will decide whether a warrant should issue.
The High Court refused the reliefs in the motion. It invited written submissions on the final order and costs, and listed the matter for mention on 7 March 2024.