The Court of Appeal has found that a European ruling on privacy arising from Graham Dwyer's bid to overturn his murder conviction, did not prevent gardaí from accessing mobile phone data during an investigation into an attempted Kinahan gang hit in 2017.
Dwyer, 49, a Cork-born architect who lived in Foxrock in Dublin, murdered childcare worker Elaine O'Hara in August 2012 but was later successful in his challenge against the legality of the use of mobile phone data in his trial.
His appeal against conviction is due to go ahead next December.
Today was the first time the Court of Appeal has been asked to rule on the use of mobile phone data since the Court of Justice of the European Union ruled in April in Dwyer's favour, saying that Ireland's system of indiscriminate retention of mobile phone data for use in criminal investigations is a breach of European law.
The three-judge court today found that admissibility of evidence is a matter for national courts and in the case of Caolan Smyth and Gary McAreavey, gardaí were entitled to access mobile phone data that helped to secure their convictions relating to the attempted murder of James 'Mago' Gately.
Gardaí investigating the attempted assassination used a 2011 Act that allowed them to access mobile phone data without any judicial oversight.
In 2017, when gardaí were investigating Smyth, concerns had already been raised in the Irish and European courts that the 2011 Act was in breach of EU law.
However, the Court of Appeal today ruled that in 2017 the Act was still the law of the land and therefore had the presumption of constitutionality.
Delivering the judgment, president of the court Mr Justice George Birmingham also said that the "limited privacy right attached to the data" was outweighed by the rights of victims and the public interest in the investigation of crime.
In the European court's ruling in April, it said that access to mobile phone data should be overseen by the courts or some other independent authority.
Smyth's lawyers complained that under the 2011 Act there was no such oversight.
Mr Justice Birmingham dismissed that argument, saying it is "inconceivable that if such an authority existed, and approval had been sought, that access would have been refused."
He said any refusal to allow gardai access to the mobile phone data they requested during the investigation of the attempted murder would have been "arbitrary and capricious".
Mr Justice Birmingham said he agrees with the findings and approach of the Special Criminal Court, which allowed the mobile phone evidence and convicted Smyth and McAreavey following a trial in 2020.
Agreeing with that court's findings, Mr Justice Birmingham said that the interference with privacy rights was slight given that neither accused had accepted that the phone numbers in question belonged to them.
Their identities could not be made out from access to the data, which required further layers of evidence before the numbers could even be attributed to Smyth and McAreavey.
The court said that the information requested was "tightly focused" and related only to the attempted murder of Mr Gately and the raw information did not reveal anything about where the owners of the phones lived or worked, their religion, their beliefs, their opinions, their sexuality, what they were doing at the time of any given call or what they were talking about.
Mr Justice Birmingham concluded: "We agree with the trial court that the public interest in the investigation of crime, part of which involves the rights of victims, comprehensively outweighs... any limited privacy rights attached to the data that was accessed in this investigation."
Gately survived being shot five times as he sat in his car at the then Topaz petrol station on the Clonshaugh Road in north Dublin on 10 May 2017.
Caolan Smyth, 30, formerly of Cuileann Court, Donore, Co Meath, but now a prisoner at Cork Prison, was found guilty of Mr Gately's attempted murder and was also convicted of possession of a firearm with intent to endanger life on the same date and location.
Gary McAreavey, 54, formerly of Gort Nua, Station Road, Castlebellingham, Co Louth, but now a prisoner at Portlaoise Prison, was convicted of assisting Smyth by purchasing petrol and assisting in the burning out of a black Lexus, used in the attempted murder, at Newrath, Dromiskin, Co Louth on the same day.
Gately, who wore a bullet-proof vest, had been warned by gardaí of a threat to his life from criminals who believed him to be involved in the Regency Hotel murder of Kinahan cartel associate David Byrne in February 2016.
There was "ongoing targeting" of Gately in the context of the feud between the Hutch and Kinahan crime groups, which included bringing Estonian hitman Imre Arakas to Ireland to carry out the murder of Gately while he lived in Belfast.
Arakas was apprehended by gardaí before he could carry out the assassination, foiling a plot which led to seven men being brought before the courts.
Privacy
In written submissions to the Court of Appeal, lawyers for Smyth had argued that the trial court had erred by admitting into evidence mobile phone data that had been gathered pursuant to the Communications (Retention of Data) Act 2011.
It was further argued that a judgment by Mr Justice Tony O'Connor in Dwyer versus the Garda Commissioner in 2018 had ruled that Section 6 of the 2011 Act was incompatible with European Union law.
John Fitzgerald SC, for Smyth, said that the gathering and retention of the mobile phone evidence used against his client had breached his client's right to privacy under Irish and European Union (EU) law.
He added: "We can safely say that Mr Smith would not be here were it not for the availability of call record data showing his location around the time of the shooting."
