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Week 2

Kevin Lunney trial: Garda access to phone records comes under defence spotlight in second week

Gardaí had given evidence about obtaining search warrants for phone records in relation to their investigation.

PHONES AND THE legal technicalities of garda searches for data were the focus of the trial of four men for the kidnapping and assault of Quinn Holdings director Kevin Lunney.

The trial before the three judge Special Criminal Court heard defence barristers claim there was a number of procedural flaws in the activities of detectives.

Every Saturday we will bring readers inside the week’s evidence of the trial of the men who the State allege kidnapped and assaulted the businessman.

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

Last week Lunney 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 from QIH.

His abductors, he said, then 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 then 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, the court heard. 

The court has heard evidence of how gardaí obtain phone records. The method has changed substantially since a judgement by the High Court and then the Supreme Court in the case of convicted murderer Graeme Dwyer.

This case was referenced in the trial hearings this week by gardaí and barristers during evidence.

The three judge panel heard that gardaí had obtained the records of phone traffic by using warrants to determine the calls made to certain phones by the alleged gang members as Mr Lunney was in their custody.

The data from various phones was obtained by using warrants issued from district courts under Section 10 of the Criminal Justice (Miscellaneous Provisions) Act.

Michael O’Higgins, SC, representing the unnamed accused, was the defence barrister who spoke in depth about the legal issue over three days this week.

He 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.

90337698 Defence barrister Michael O'Higgins, SC, argues that the phone records gathered by gardaí are inadmissible. Mark Stedman / Photocall Ireland Mark Stedman / Photocall Ireland / Photocall Ireland

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.

He said that the evidence gained using mobile phone data should be ruled as inadmissible in the trial.

Detective Garda Sharon Walsh, on Tuesday, told Michael O’Higgins SC, for one of the accused, that following a judgement relating to the conviction of murderer Graham Dwyer, gardaí could no longer apply for phone data through Security and Intelligence, which was previously the norm.

Dwyer was convicted in 2015 of the murder of 36-year-old childcare worker Elaine O’Hara in August 2012. He has challenged the legality of the collection of mobile phone data that was used in his prosecution.

The detective said this was the first time she used a warrant to obtain phone data records but she couldn’t remember where she first read that the old system could no longer be used.

The witness agreed that part of her statement relating to the Graham Dwyer decision contained “formalised wording” which she said she may have seen on another warrant in the garda incident room.

O’Higgins asked the detective if it was a “coincidence” that the formalised wording appeared in a number of statements made by other gardaí.

Detective Walsh said she saw the wording in a document in the garda incident room.

Sergeant Lisa Murray told Michael Bowman SC, for Darren Redmond, that she doesn’t remember if she wrote down the wording prior to making her statement.

Justice Tony Hunt, presiding, asked why the wording was used at all: “Why not just say there was a perceived problem with Graham Dwyer? One line.”

The judge asked Bowman if “something turns on this”. Bowman replied: “Ultimately, there may be.”

Murray also told Bowman that one piece of information on the warrant was incorrect but was not corrected because of an “oversight”.

The warrant stated that a number connected to Redmond was from an unregistered mobile phone whereas Sergeant Murray was aware that the phone was registered to Redmond. She agreed that she and other gardaí knew the information was incorrect.

She said it should have been corrected and she couldn’t say why it wasn’t.

In his comments to the court Michael O’Higgins SC, who is representing the unnamed accused said that mobile phone data collected by gardaí investigating the abduction and assault of Quinn Industrial Holdings director Kevin Lunney were obtained using invalid search warrants.

O’Higgins SC said there was an “information deficit” in the application for a warrant for phone records relating to his client and that the warrant was executed at the wrong address.

The barrister added that gardaí applying for a warrant to seize phone records told a district court judge that a number associated with his client was in contact with a number ending in 2200.

The 2200 number has been associated with Cyril McGuinness, also known as ‘Dublin Jimmy’, now deceased.

The prosecution case is that McGuinness spoke to Luke O’Reilly on the phone while Lunney was being held captive in a trailer on O’Reilly’s land.

The prosecution alleges that McGuinness told O’Reilly to buy bleach and called him again shortly afterwards to tell him how to pass it on to the three co-accused.

Gardaí had focused on O’Reilly early in their investigation because he was seen on CCTV buying bleach at a nearby shop during the time that Lunney had been abducted.

O’Higgins said there was no basis outlined to the district court judge for the garda belief that the 2200 number was involved in the false imprisonment of Lunney.

He said the 2200 number had been in contact with ten other numbers on the same day and if gardaí were relying on the frequency of contact between that number and the number associated with his client they should have said that to the judge.

He said: “There is a huge information deficit and, more importantly, the warrant doesn’t contextualise why one person out of eleven persons who contacted the 2200 number might be more connected to this offence than any of the other ten.”

kevin-lunney-abduction Quinn Industrial Holdings (QIH) offices in Derrylin in County Fermanagh. Liam McBurney Liam McBurney

O’Higgins went on to say that the judge granted the warrant for a specific address for the mobile phone service provider. When the garda went to collect the mobile phone data she went to an address other than the one stated on the warrant, O’Higgins said.

In Thursday’s hearing O’Higgins continued to speak about the accessing of phone records during which he criticised the government’s failure to legislate on how gardai can access mobile phone data.

He said that since 2012 problems had been identified on how phone records were accessed and said that a “day of reckoning” has now come over the State’s failure to act.

While on Friday he accused the gardaí of repeatedly breaking the law in the way they access phone records.

Counsel said he was not “pointing the finger” but wanted to make the argument that, “the breach is an egregious breach that has been perpetrated again and again and again despite the rulings from the courts.”

He said gardai had gone beyond “recklessness or negligence” in their repeated breaches of the right to privacy by using search warrants to seize mobile phone data revealing details such as the times of phone calls and text messages made and received by phone users and the location of phones at specific times.

The three other accused are adopting the arguments made by O’Higgins who will continue his submission on Monday.

The trial continues in front of Mr Justice Tony Hunt, Judge Gerard Griffin and Judge David McHugh.

Comments have been disabled as the trial is ongoing. 

This article has reporting from Eoin Reynolds and Niall O’Connor. 

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