A barrister representing one of the men accused of abducting and assaulting Quinn Industrial Holdings director Kevin Lunney has criticised the government's failure to legislate on how gardai can access mobile phone data.
Michael O'Higgins SC told the Special Criminal Court that the State has decided to "shrug their shoulders" following various court rulings and reports since 2012 which revealed problems with the Communications (Retention of Data) Act 2011. He said that a "day of reckoning" has now come over the State's failure to act.
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 (NOT) guilty to false imprisonment and intentionally causing serious harm to Mr Lunney at Drumbrade, Ballinagh, Co Cavan on September 17, 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.
Mr O'Higgins, representing the unnamed accused, has pointed out that a ruling of the Supreme Court in January 2019 stated that the 2011 Act was inconsistent with European Parliament directives and the Charter of Fundamental Rights of the European Union. The court has found that the mass collection of data is a breach of citizens' fundamental rights. As a result, gardai investigating Mr Lunney's abduction used search warrants to access mobile phone data. Mr O'Higgins has told the court that search warrants are not an appropriate way of obtaining personal, private, digital information as the Act that allows gardai to apply for warrants does not provide the necessary safeguards. Counsel said he will argue that evidence gained using mobile phone data should be ruled as inadmissible in the trial.
During his submissions Mr O'Higgins agreed with presiding judge, Mr Justice Tony Hunt, that the government is in a difficult situation regarding the retention of phone data but, counsel said, it shouldn't take nine years to remedy the problem.
Counsel pointed out that the first potential problems were flagged by the High Court in 2012 and in 2017 former chief justice John Murray wrote a report which found that the legislation breached European Law. Mr Murray included in his report a draft Bill that Mr O'Higgins said the government could have used. He added, however, that, "the policy appears to have been, plough on."
He said gardai, who have to investigate crime, were "caught in the middle of all this" and resorted to search warrants in the absence of options. Mr Justice Hunt asked what else could have been done and Mr O'Higgins responded: "There was a lot else that could be done and it wasn't... we are now ten years on and there is no sign of a Bill before the Oireachtas."
Counsel said: "If you have an unlawful scheme and it is well flagged and the powers that be just shrug their shoulders and don’t do anything, then at the end of that there must be a reckoning and I say we are in a day of reckoning."
Mr Justice Hunt asked if gardai "can be criticised for trying." Mr O'Higgins responded: "They must do it in accordance with the law and the law doesn't change because you want to achieve a good result."
Mr O'Higgins has outlined the fundamental rights to privacy as stated in the European Charter including Article 7 which states: "Everyone has the right to respect for his or her private and family life, home and communications."
Article 8 states that everyone has the right to the protection of personal data and that such information can only be processed with consent or "some other legitimate basis laid down by law."
Mr O'Higgins will continue his submissions to the three-judge court on Friday. Mr Justice Hunt is sitting with Judge Gerard Griffin and Judge David McHugh.
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