The Supreme Court has overruled the objections concerning the acceptance of telephone data as admissible evidence in a criminal case. This significant judgement could potentially play a key role in determining the outcome of Graham Dwyer’s pending murder conviction appeal. Even though the phone data, including traffic and location information, was gathered under a law that has since been deemed invalid, it was correctly allowed into evidence. The defendants, 31-year-old Caolan Smyth and 56-year-old Gary McAreavey, were alleged by the prosecution to be tied to this data.
The seven-judge court unanimously upheld Smyth’s conviction for attempting to murder James “Mago” Gately and for possessing a firearm with intent to compromise life. However, McAreavey’s conviction for aiding an offender was overturned. Gately, claimed by the Criminal Assets Bureau to be deeply entrenched in organised crime, was shot five times by an individual driving a Lexus that pulled alongside him at a petrol station on Clonshaugh Road on 10th May, 2017.
Smyth, formerly residing at Cuillean Court, Donore in county Meath, was accused of being the gunman, while McAreavey, formerly of Gort Nua, Castelbellingham in county Louth, was accused of procuring fuel to incinerate the vehicle, which was later discovered in a burnt state.
Both men maintained their innocence of the charges against them but were found guilty by the Special Criminal Court in January 2021. The non-jury court deduced that while there wasn’t enough evidence to convincingly prove that McAreavey had knowingly aided Smyth in the attempted murder, there was enough to suggest that he knew or believed Smyth had committed a crime serious enough to warrant arrest, leading to his conviction on this basis.
On Monday, Mr Justice Maurice Collins argued that McAreavey’s involvement in the burning of the Lexus was merely indicative of the fact that he believed Smyth had perpetrated a criminal offence, and not that he was an accomplice to attempted murder. This line of argument, according to the judge, wasn’t enough to form a basis for conviction. In a separate judgement, Mr Justice Collins explained his rationale for accepting the phone metadata in the trials of both accused parties. The court maintained that since this was the central argument in Smyth’s appeal, his convictions should stand.
The unsuccessful attempts to challenge certain phone data evidence, which was captured under the Communications (Retention of Data) Act 2011, by the Irish Police, were based on claims of illicit acquisition and retention. The contention was that the 2011 statute contravened EU law, as determined in a case initiated by Dwyer.
Rejecting the claims from the DPP that neither Smyth nor McAreavey had any privacy infringement claim due to their failure to admit ownership of two unregistered mobiles that were utilised to connect car movements to cell sites, Judge Collins ruled in their favour. Nevertheless, he deemed the data as valid evidence because the police’s reliance on the 2011 Act in 2017, while it was still legally binding, was not a direct and purposeful contravention of the law.
The judge further stated that the later legal ruling of the CJEU in Dwyer’s case was the source of the illegality, and not the actual action of the police. He reasoned that the data was valid for the ruling on Smyth and McAreavey’s cases, citing that the community’s interest in effective justice outweighed the dismissal of evidence and that exclusion would tarnish the reputation of the justice system.
The decisions of Judge Collins had the backing of five out of six of his peers, with Justice Hogan agreeing to McAreavey’s conviction being overturned, but also suggesting Smyth’s acquittal on the grounds of believing the phone data should be dismissed. He criticised the continuous use of the data collection system as “reckless and grossly negligent, ” despite no formal confirmation of the 2011 Act violating EU law by June 2017.
These rulings have potential implications on the imminent judgment in Dwyer’s appeal against his conviction about the murder of childcare worker Elaine O’Hara, who went missing from a South Dublin park in August 2012.
The court heard evidence during his trial which suggested a mobile device found in a reservoir in 2013 had been utilised to dispatch messages to Ms O’Hara. These included a rather disturbing mention of stabbing and concluded with a text sent on August 22nd, 2012, the final day she was sighted alive, directing her to “go down to the shore and wait”. He has insisted that he is not guilty of murder and his legal team contended at the Supreme Court in January last year that evidence related to telephone call data should not have been permitted at his criminal trial due to the 2011 statute being annulled.