A Supreme Court judge has said he would quash Caolan Smyth’s convictions for attempted murder and possessing a firearm with intent to endanger life because key telephone metadata evidence should have been excluded.
In a dissenting judgment delivered on 17 June 2024, Mr Justice Gerard Hogan concluded that Garda access to the metadata breached Article 8 of the EU Charter of Fundamental Rights. He said the Garda use of the Communications (Retention of Data) Act 2011 in June and November 2017 was reckless or grossly negligent under the exclusionary principles set out in the Supreme Court’s 2015 decision in DPP v JC.
The judgment does not record the Court’s operative disposition of the appeal. Justice Hogan disagreed with the majority judgment delivered by Justice Collins. His conclusion was that the convictions could not stand if the metadata was excluded. He would quash the convictions and invited further submissions on whether a retrial should be ordered.
Smyth had been convicted by the Special Criminal Court in January 2021, and the Court of Appeal affirmed the convictions in July 2022. The prosecution case included circumstantial evidence that Smyth was the driver of a Lexus used in the shooting of James Gately at a filling station in Clonshaugh, Dublin, on 10 May 2017. Gately survived. The car was later found burnt out near Dromiskin, Co Louth.
The prosecution also relied on phone records and cell-site information. It argued that a phone number connected with Smyth was used in connection with the shooting, and that the phone’s cell sites corresponded with the route north taken by the Lexus. The Special Criminal Court had admitted the metadata after rejecting a challenge to its use. The Court of Appeal upheld that decision.
Justice Hogan said the 2011 Act provided for mass, indiscriminate retention of telephone metadata for three years without independent judicial-style supervision. He rejected the view that the breach was merely technical or that the presumption of constitutionality resolved the issue. In his analysis, the legal concerns raised by European Court of Justice decisions from 2014 onwards meant that continued use of the regime in 2017 was objectively reckless or grossly negligent, even without a formal finding against the Act at that time.
He said the exclusionary rule developed in DPP v JC applied to the Charter breach through EU law’s principle of equivalence, which requires comparable treatment of similar claims under EU and domestic law. He acknowledged the public interest in investigating serious crime, but said the rule of law and respect for EU data-protection rights also had to be given weight.