[2022] IECA 182 Birmingham P ‒ Edwards J ‒ Kennedy J ‒ 28 July 2022 ‒ Court of Appeal
Telephone evidence ‒ retention of data ‒ right to privacy ‒ Communications (Retention of Data) Act 2011 ‒ assisting an offender ‒ Criminal Law Act 1997
This judgment concerned two connected appeals against conviction. The main ground of appeal was the admissibility of telephone evidence, namely call data and records, which were retained in accordance with the Communication (Retention of Data) Act 2011. The Court of Appeal agreed with the Special Criminal Court that this evidence was admissible. The Court of Appeal also considered the constituent elements of the offence of assisting an offender contrary to s 7(2) of the Criminal Law Act 1997 and rejected the contention that state had to prove the appellant had knowledge of a specified arrestable offence before he was guilty of the offence of assisting an offender. The appellants were unsuccessful in their appeals against conviction.
On 5 January 2021, both appellants were convicted by the Special Criminal Court of separate offences arising out of the same incident. Caolan Smyth was convicted of counts of attempted murder and possession of a firearm with intent to endanger life, contrary to s 15(1) of the Firearms Act 1925 (as substituted and amended). Gary McAreavey was convicted of a single count of assisting an offender contrary to s 7(2) and s 7(4) of the Criminal Law Act 1997 (as amended).
Both appeals raised the issue of admissibility of telephone evidence. Mr McAreavey’s appeal against conviction was also based on the constituent elements of the offence of assisting an offender contrary to s 7 of the Criminal Law Act 1997.
The trial concerned the attempted murder of Mr James Gately on 10 May 2017. Mr Gately was shot at a Topaz filling station on Clonshaugh Road in Dublin. Mr Gately was wearing a bulletproof vest at the time and survived the shooting. The central question at the trial was the identification of the individual who shot Mr Gately. The incident was captured on high quality CCTV. A black Lexus bearing the registration 08D51984 arrived at the location, and pulled up beside Mr Gately’s car. Shots were discharged from the Lexus. The prosecution maintained that Mr Smyth was the shooter. At about 2.30pm on the day of the shooting, the Lexus was found burnt out at Newrath, County Louth.
The case against Mr Smyth consisted of a number of pieces of circumstantial evidence. Evidence of the movements of the Lexus on the day before the shooting and on the day of the shooting. The vehicle was seen coming and going from an address in Donore, County Meath that was connected to Mr Smyth. The vehicle was found to be at or near Mr Gately’s residence on the day before the shooting, as well as at the Topaz filling station on the day before the shooting. The car had some distinguishing features including blacked out windows and a particular set of alloy wheels. The person driving the car around Mr Gately’s home and at the filling station on the day before was Mr Smyth.
The prosecution also relied on cell site analysis of a phone, named the ‘691 phone’ during the trial. The prosecution maintained the phone was attributable to Mr Smyth. It was argued that Mr Smyth was connected to a number of phones. When Mr Smyth was arrested he was in possession of three phones. Six additional phones were found during the course of a search of his property. A phone attributed to the other appellant, Mr McAreavey, had three numbers saved under the contact name ‘QNU’ which was thought to relate to the phonetic spelling of Caolan. One of the numbers was the 691 number. There was also evidence that the 691 number was in contact with a number of phones belonging to persons connected with Mr Smyth, including his father and his brother. The phone was in contact with the brother of Mr Smyth on 400 occasions including 20 occasions on the day of the shooting.
The prosecution relied on the use of cell sites of the 691 number to match or correlate the passage of the Lexus vehicle used in the shooting. The phone data records demonstrated that the geographical route that was consistent with the preparation for and the execution of the attempt to murder Mr Gately. Phone records were relevant in relation to the movements of Mr Smyth on the day before, and the day of, the offence in addition to attributing the 691 number to Mr Smyth. The other area of interest for the cell site evidence was the contact the 691 number had with a phone number contended to be attributed to the other appellant, Mr McAreavey. It was accepted during the course of the closing of the case in the Special Criminal Court that Mr Smyth had to be convicted before Mr McAreavey could be convicted.
It was contended that Mr McAreavey had bought petrol which was put in a red container at a different filling station and that said petrol was used to burn out the Lexus used in the shooting. Bullet casings found in the footwell of the Lexus matched bullets extracted from Mr Gately. CCTV footage showed the purchase of the petrol. Mr McAreavey returned to his home and then later a white van was captured on CCTV leaving the property. Further CTTV footage showed the white van and the Lexus car driving in convoy to an area very close to where the Lexus was found.
There was telephone evidence that calls were made between phones that were attributed to the appellants, including five phone calls and one SMS message sent during the time between the shooting and the time when the Lexus car was noted to have smoke rising from it.
The Court of Appeal considered the written judgment of the Special Criminal Court of 5 January 2021 in some detail when addressing the admissibility of the telephone evidence. The Court of Appeal accepted that the telephone evidence was clearly significant to the trial.
The call data and records were retained in accordance with the Communications (Retention of Data) Act 2011, and were accessed pursuant to s 6 of the 2011 Act. The 2011 Act transposed EU Directive 2006/24/EC (‘the 2006 Directive’). The Court of Justice of the European Union (CJEU), in the 2014 case of Digital Rights Ireland Ltd. v Minister for Communications determined that the 2006 Directive was inconsistent with EU law, and in particular, did not conform with the right to privacy in Article 7 of the Charter of Fundamental Rights of the European Union.[1] The Court of Appeal noted that there was two points of concern regarding the 2006 Directive, namely the blanket retention of data for a period of up to two years, and the absence of procedural safeguards regarding access to data. The directive did not require that access was dependent on a prior review carried out by a court or an independent administrative body.
The CJEU ruling in the Digital Rights Ireland case was applied to a domestic legal provision in joined cases of Tele2 Sverige AB v Post-och telestyrelsen and Secretary of State for the Home Department v Tom Watson.[2] The Court of Appeal also noted the case of Dwyer v Commissioner of An Garda Síochána where the High Court granted declaratory relief to the effect that s 6 of the 2001 Act was incompatible with EU law.[3] The state appealed this matter to the Supreme Court, and the Supreme Court made a reference to the CJEU.[4] The CJEU delivered its judgment on 5 April 2022 and found that the 2011 Act did not comply with EU law.[5] The CJEU focused again on the prolonged period of blanket retention of the data and the absence of any procedures or safeguards whereby an application would be made to a court or an independent body prior to access to the data.
The appellants argued that the retention of the data and the system of access to the data was unlawful. The Court of Appeal surmised that the real focus of the attention was on the access issue in the absence of any involvement by a court or independent administrative body. It was highlighted that the powers provided by the 2011 Act were relied on in the investigation at a time when the state was aware that there was a difficulty about the indiscriminate retention of data and the fact that access was permitted without intervention from a court or independent body.
The Special Criminal Court, and indeed the Court of Appeal, highlighted the fact that the 691 phone attributed to Mr Smyth and the 773 phone attributed to Mr McAreavey, were not claimed by the appellants. They did not concede that the phones belonged to them. The prosecution argued that the claim of a breach of the right to privacy was fanciful in such circumstances. The DPP argued that a very small and focused amount of data was retained and this arose from the ownership or use of phones where ownership or use was not admitted. The DPP highlighted that the data was accessed in the course of an investigation and that any interference with the right to privacy had to be balanced against the rights of the community to have serious crime investigated effectively and the rights of victims of crime to see the perpetrators brought to justice.
The Court of Appeal considered the judgment of the trial court in extensive detail and approved of same. The Special Criminal Court recognised the long established position that the right to privacy cannot extend to participation in criminal activity.[6] The trial court noted that provisions of Directive 2002/58 remained in force after the annulment of the 2006 Directive by the CJEU in the Digital Rights Ireland case. The state was still required to implement this directive and the 2011 Act retained a significant purpose in that respect. The trial court was satisfied the actions of the Gardaí in the investigation followed the requirements of the 2011 Act.
The trial court emphasised that the domestic privacy rights relied on in the case had never been identified as absolute or unqualified. The right to privacy was limited by the constitutional rights of others as well as the common good. It was always subject to the requirements of public order and morality. The Court of Appeal noted that the trial court commented, correctly in its view, that a court is ‘entitled to assess the actual significance of any interference with privacy or data rights in the context of the facts of the individual case and to balance the precise level of privacy rights arising against any competing interest that also arises’.
The court noted that the evidence in issue did not disclose surveillance of the accused in the ordinary sense of the word. Here, the Gardaí sought and received a precise amount of information, targeted on issues that came to the attention of Gardaí during their investigation. Any interference with the private lives of the accused persons had to be considered slight.
The Court of Appeal noted the trial court’s position that the access data in question says absolutely nothing, or at best very little, about the private life or details of either of the appellants. By contrast, there was a strength and depth in the public interest in the investigation of such serious crimes. The Court of Appeal quoted extensively from the Special Criminal Court’s ruling when demonstrating their agreement with the decision of the Special Criminal Court.
The Court of Appeal highlighted that it was for national courts to determine questions of admissibility of evidence. The CJEU had recognised this in GD v Commissioner of An Garda Síochána & others.
It was noted that the crimes in the case were committed less than six months after judgment in Watson and Tele2 was delivered. It was unrealistic to expect a legislative response to this case law within the timeframe. The court rejected a major aspect of the appeal, namely that there was no prior authorisation from a judicial or independent administrative body. The Court of Appeal agreed with the Special Criminal Court in finding that it was inconceivable that is such a mechanism existed, and approval sought, that access would have been refused.
The issue that was specific to Mr McAreavey’s appeal related to the ingredients of the offence of assisting an offender, contrary to s 7(2) of the Criminal Law Act 1997 (as amended).
Section 7(2) provides that ‘[w]here a person has committed an arrestable offence, any other person who, knowing or believing him or her to be guilty of the offence or of some other arrestable offence, does without reasonable excuse any act, whether in or outside the State, with intent to impede his or her apprehension or prosecution shall be guilty of an offence.’
An individual has to commit an arrestable offence, and then another person knowing or believing that individual to be guilty of the offence committed, ‘or of some other arrestable offence, does without reasonable excuse any act’ with the intention to impede the apprehension or prosecution of the other individual. The focus of the appeal was the phrase ‘knowing or believing that individual to be guilty of the offence or of some other arrestable offence’. The prosecution maintained at trial that it was not required to identify the ‘other arrestable offence’ if it failed to prove knowledge of the primary offence. The appellant rejected this position and maintained that the prosecution had to prove knowledge by the accused of another specified arrestable offence.
The Special Criminal Court noted the argument of Mr McAreavey was that the alternative for the specific offence alleged must be couched or detailed by reference to another specified arrestable offence. It was maintained that as s 7(2) was a penal statutory provision any term that was unclear or ambiguous had to be construed in a manner that avoided imposing criminal liability. The Special Criminal Court had found there was no such ambiguity. The Special Criminal Court found the use of the words ‘or some other offence’ expanded the common law offence of accessory and provided an expanded alternative to knowledge of the precise offence. Section 7(2) did not require a specific alternative as part of the statutory definition. The Court of Appeal agreed with the Special Criminal Court’s interpretation of s 7(2).
The court noted that at the time that assistance is offered, neither the assister nor the principal offender may be aware of what precise offence has been committed ‒ in fact, that may not yet be determined. Uncertainty could persist for a period of time when the question of if a victim will recover, or the extent of their recovery, is unclear.
The Court of Appeal rejected an argument advanced by Mr McAreavey by reference to DPP v AC concerning the interpretation of s 25 of the Non-Fatal Offences Against the Person Act 1997.[7] The Court of Appeal found that there was no possible dual purpose of s 7(2) of the Criminal Law Act, 1997. It found the language of the statute was clear and unambiguous and therefore the rationale of the AC case was not applicable.
The Court of Appeal found that any interference with privacy rights in the present case was limited in the extreme, especially when the appellants were not asserting that they owned the phones in question. The Court of Appeal found that the public interest in investigating crime, which included the rights of victims, comprehensively outweighed any limited privacy rights attached to the data accessed in the investigation.
The Court of Appeal rejected Mr McAreavey’s argument that the state were obliged to prove the appellant had set of knowledge of a specified arrestable offence before he was guilty of an offence under s 7(2) of the Criminal Law Act 1997 (as amended).
The Court of Appeal concluded that the trial court did not fall into error in admitting the telephone evidence. The grounds of appeal that related to the telephone records were dismissed. The Court of Appeal also rejected the argument made by Mr McAreavey that the prosecution had to prove knowledge of the accused person of another specified arrestable offence.
The Court of Appeal found the fact that ownership of the phones has not been asserted to be a relevant consideration. A point of distinction from future cases may arise if accused persons accept ownership.
The Court of Appeal balanced the right to privacy against the right of the community to have serious crime investigated, this right including the right of victims to see perpetrators brought to justice. This balancing exercise will be adopted by the Superior Courts in future cases making such arguments.
Despite the binding nature of the CJEU judgments on data retention, the CJEU has also stated that the question of admissibility of evidence is a question for the national court.
The amount and nature of the data retained was also an important consideration for the court. In this case, the Court of Appeal found the nature and content of the data retained did not interfere with the private lives of the phone owners.
The annulment of the 2006 Directive did not operate to mean the evidence was inadmissible.
The Court of Appeal’s analysis of the elements of the offence of assisting an offender, and in particular the mens rea element of the offence, will be informative for future prosecutions.
[1] Joined cases C-293/12 and C-594/12.
[2] Joined cases C-203/2015 and C-698/15.
[3] [2018] IEHC 685.
[4] [2020] IESC 4.
[5] Case C-140/20.
[6] EMI Records (Ireland) Ltd v UPC Communications [2010] IEHC 377.
[7] [2021] IESC 74.
