Lawyers of man accused of Lunney attack say trial can’t proceed due to questions around access to mobile phone data

Lawyers for one of the men accused of falsely imprisoning and assaulting Quinn Industrial Holdings (QIH) director Kevin Lunney have told the Special Criminal Court that the case is not ready to proceed in January as the law on the retention and accessing of mobile phone data is in “a state of significant uncertainty” in Ireland.

Defence counsel Michael O’Higgins SC, for one of the accused men who cannot be named for legal reasons, told the non-jury court today that he would be applying for the trial to be adjourned as it was inappropriate for it to proceed when the law on the retention of mobile phone records was “unknown”.

Luke O’Reilly (66), with an address at Mullahoran Lower, Kilcogy, Co Cavan; Darren Redmond (25), from Caledon Road, East Wall, Dublin 3; Alan O’Brien (39), of Shelmalier Road, East Wall, Dublin 3 and the fourth accused are all charged with false imprisonment and assault causing serious harm to Mr Lunney at Drumbrade, Ballinagh, Co Cavan on September 17, 2019.

Mr Lunney (50), a father of six, was abducted close to his home in Co Fermanagh on the evening of September 17. The businessman’s leg was broken, he was doused in bleach and the letters QIH were carved into his chest during the two-and-a-half hour ordeal before he was dumped on a roadside in Co Cavan.

The four defendants were sent forward for trial before the Special Criminal Court last March and the non-jury court has fixed January 11, 2021 as their trial date. It is expected to last 12 weeks.

Mr O’Higgins told the three-judge court today that from his point of view the case was not ready to proceed in January and he was applying for an adjournment. The barrister handed a document into the court upon which the adjournment application was sought and remarked that the law on the retention and accessing of mobile phone data is in “a state of significant uncertainty” in this jurisdiction.

Mr Justice Tony Hunt presiding, sitting with Judge Martin Nolan and Judge Michael Walsh, said the law was not in any state of uncertainty and asked Mr O’Higgins if the application referred to the recent decision of The European Court of Justice (ECJ) in October. Mr O’Higgins confirmed that it did and said he had set out in the document the reasons why it was inappropriate for the trial to proceed especially when the law on the retention of mobile phone records was “unknown”.

Last year, the Supreme Court heard an appeal against a High Court ruling in favour of Graham Dwyer which formed part of his bid to overturn his conviction for the murder of childcare worker Elaine O’Hara. The State had appealed the decision by High Court judge Mr Justice Tony O’Connor that part of Ireland’s retention laws concerning information generated by telephones contravened EU law. Dwyer claimed that data generated from a phone under the 2011 Communications (Retention of Data) Act should not have been used at his 2015 trial before the Central Criminal Court.

Dwyer’s mobile phone data battle was referred from the Supreme Court to the ECJ earlier this year as the superior court found that EU law at the time was not clear enough for a judgment to be made.

The ECJ has ruled in two similar cases recently that member states and service providers do not have broad rights to retain data on citizens and Irish officials now believe the ECJ is likely to rule against the State on that issue.

In light of its recent rulings, the ECJ asked the Supreme Court if it wished to proceed with its referral of the Dwyer case. The Supreme Court responded that it wished the case to proceed as there were additional issues raised by the referral. The ECJ hearing is expected to begin in mid-January and once it rules, which may take some time, the matter will be referred back to the Irish Supreme Court for further argument and judgment.

Earlier this month, the Special Criminal Court heard that the trial of the four accused men may not go ahead next January due to High Court challenges being brought by the defendants against the Special Criminal Court’s jurisdiction to try the matter.

Mr O’Higgins told the non-jury court today that the judicial review proceedings were back before the High Court this morning and outlined that it was “a very net issue”.

Sean Guerin SC, on behalf of the Director of Public Prosecutions (DPP), asked the court for time so that the Director could set out her position in relation to the issue of retention of mobile phone data. “The Director is very anxious to get the case on,” he added.

Mr Justice Hunt listed the case for hearing before the non-jury court next Thursday morning at 9.30am.