Judge queries lack of guidance from European court on mobile phone data

ireland
Judge Queries Lack Of Guidance From European Court On Mobile Phone Data
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A judge presiding in the trial of four men accused of abducting and assaulting Quinn Industrial Holdings director Kevin Lunney has questioned why the Court of Justice of the European Union has not set out in simple terms how police forces can access mobile phone data.

Mr Justice Tony Hunt said "it would be nice" if the court gave a structured indication, which could be as short as a single paragraph, detailing how phone data can be obtained for national security purposes and setting out how and when gardaí can look at data retained by phone companies.

He added: "After six years of these issues in almost every case, I just personally long for a solution one way or another so we can get on with these cases."

Mr Justice Hunt spoke following six days of legal argument over the admissibility of mobile phone data evidence. The prosecution has said the evidence shows the movements of the accused men and contacts they had with one another and a fifth man who is alleged to have orchestrated the offences.

Previous judgments

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Sean Guerin SC for the Director of Public Prosecutions (DPP) is seeking to show that previous judgments by the European and Irish courts do not prevent gardai from accessing personal phone data when investigating serious crime. Mr Guerin has referred to several judgments of the European and Irish courts and numerous EU directives about the mass retention of phone data.

Lawyers for the four accused men say the judgments show that mass retention of mobile phone data is not allowed under EU law as it interferes with the privacy rights of citizens. Mr Guerin said there is a lack of clarity about what the EU court has decided, but gardaí are entitled to commit "serious interferences" with privacy rights when investigating serious crime.

Following a High Court judgment, which found that the Communications (Retention of Data) Act 2011 contravened EU law, Mr Guerin said gardaí were left in a situation where, "they couldn't stop investigating crime. They had to try to identify methods that would allow them to discharge their duty to the State, to vindicate the rights of citizens."

Search warrants

Gardai turned to search warrants as a way of accessing mobile phone data. He said the evidence obtained was "highly probative, highly valuable evidence" and should be admitted in the trial.

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A 40-year-old man who cannot be named by order of the court, Alan O’Brien (40), of Shelmalier Road, East Wall, Dublin 3, Darren Redmond (27), from Caledon Road, East Wall, Dublin 3 and Luke O’Reilly (67), with an address at Mullahoran Lower, Kilcogy, Co Cavan have all pleaded not guilty to false imprisonment and intentionally causing serious harm to Mr Lunney at Drumbrade, Ballinagh, Co Cavan on September 17th, 2019.

Mr Lunney has told the court that he was bundled into the boot of a car near his home and driven to a container where he was threatened and told to resign as a director of Quinn Industrial Holdings. His abductors cut him with a Stanley knife, stripped him to his boxer shorts, doused him in bleach, broke his leg with two blows of a wooden bat, beat him on the ground, cut his face and scored the letters QIH into his chest. They left him bloodied, beaten and shivering on a country road at Drumcoghill in Co Cavan where he was discovered by a man driving a tractor.

Warrant application

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Michael Bowman SC, representing Darren Redmond, adopted the arguments made relating to retention of mobile phone data and added that a garda sergeant who gained a warrant from the District Court to view his client's data knowingly provided the judge with incorrect information. The information on the warrant application stated that a phone allegedly belonging to Mr Redmond's partner was not registered, whereas the garda has accepted that she knew the phone was registered.

Giollaiosa O'Lideadha SC said that the use of warrants to access mobile phone data is inappropriate. The defence barristers have also pointed to the fact that some of the warrants were meant to be executed at the headquarters of the mobile phone companies but were actually executed at other locations.

Mr Guerin submitted that even if there is a flaw in the method by which warrants were obtained, the court can still assess whether to admit the evidence. He said the error in relation to Mr Bowman's client could be understood given that gardaí were filing a number of warrants on the same day with a lot of information coming in and a short turnaround time. He added that the error was not material and that the purpose of excluding evidence "is not to discipline gardai for mistakes."

Mr Justice Hunt, sitting with Judge Gerard Griffin and Judge David McHugh, said the court will deliver its decision on the admissibility of the mobile phone evidence next week. The prosecution will continue with CCTV evidence this Thursday.

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