LAST UPDATE | 7 Dec 2020

JUDGES AT THE Special Criminal Court have today ruled that the trial of four men accused of falsely imprisoning and assaulting Quinn Industrial Holdings (QIH) director Kevin Lunney will go ahead next month as scheduled.

Mr Justice Tony Hunt, presiding at the three-judge court, this morning rejected all four grounds of a pre-trial defence application to adjourn the 12-week trial, which is due to commence on 11 January.

The judge also found the fact that a Renault Kangoo van went on fire from an electrical fault while in the possession of gardaí was “immutable” and was not a sufficient basis for the case to be adjourned.

Sean Guerin SC, on behalf of the Director of Public Prosecutions (DPP), previously told the Special Criminal Court that one of the accused men, who cannot be named for legal reasons, had complained to the garda ombudsman.

The accused claimed that DNA was “planted” on a van that he says was deliberately destroyed in a fire so it wouldn’t be made available to the defence.

However, counsel said the fire began accidentally and the CCTV had been disclosed to the defence.

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 man, who cannot be named for legal reasons, are all charged with false imprisonment and assault causing serious harm to  Lunney at Drumbrade, Ballinagh, Co Cavan on September 2019.

Lunney (50), a father of six, was abducted close to his home in Co Fermanagh on the evening of 17 September. 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 11 January 2021 as their trial date. It is expected to last 12 weeks.

Four separate grounds advanced

Delivering the non-jury court’s ruling on the matter, Mr Justice Hunt, sitting with Judge Sarah Berkeley and Judge Michael Walsh, said that four separate grounds were advanced by the defence.

One of the four grounds for the adjournment application submitted by defence counsel Michael O’Higgins SC, for the unnamed man and adopted by the three other co-accused, was that the law on the retention and accessing of mobile phone data is in “a state of significant uncertainty” in Ireland and the trial should therefore not proceed.

Outlining the reasons for the court’s ruling on this ground, the judge said the Special Criminal Court did not perceive “sufficient flux and sufficient uncertainty” to justify an adjournment of the trial and it was up to the domestic courts to come to an assessment of the legality or otherwise of the retention of phone data.

“No guidance is going to come in the short term in relation to these matters,” he added.

Another reason put forward by the barrister was that High Court challenges are being brought by the defendants against the Special Criminal Court’s jurisdiction to try the matter.

In relation to this, the judge said that a significant fact was that “no stay” had emanated from the High Court and there was no legal impediment to hear the trial and therefore no basis for adjourning it on this ground.

If the trial proceeded to its full duration, the judge said it would be late April or early May before a verdict would be available and “it may well be that the High Court gets to the finish line first”.

O’Higgins said there was a large volume of disclosure in the case and in his submission there was no reasonable prospect that the material would be scrutinised in the available time.

The lawyer said his client also wanted to go through the material himself, which was not an unreasonable request.

The court was satisfied, the judge said, that the ground for an adjournment concerning the volume of disclosure did not arise.

The judge also said it was not clear to the court whether the lawyers did not have time to “scrutinise the material” and it was “very difficult” to assess the reality of this application. 

“It is important to bear in mind that a trial is not conducted on the basis of disclosure material but is conducted on the basis of documents served, which brings focus to a criminal trial,” he said.

Request to ‘trawl’ material

Referring to O’Higgins’ client wanting to “trawl” through the material himself, the judge said this was a case based on circumstantial evidence and the unnamed man must focus on whether he was the person in a certain place at a certain time, whether he was associated with a particular phone number and whether he was associated with a particular tolling tag seized in the searches.

Finally, O’Higgins submitted that there was also important DNA evidence found on an abandoned Renault Kangoo van, used in the alleged abduction of Lunney, which went on fire from an electrical fault whilst in the possession of gardaí.

He noted that the garda ombudsman was carrying out an investigation into the fire and it did not seem unreasonable to wait for the outcome.

However, the judge said the result of the fire was “immutable” and could not be changed and sufficient basis had not been put forward on this ground for the case to be adjourned.

“What has happened has happened and whatever the consequences, that will have will have to be worked out at the trial,” he said, adding that it would be nice if GSOC produced a report next week to remove the issue in the case one way or another.

DNA, he said, was produced in court in many cases, not the place where the DNA was discovered.

Refusing the application to adjourn the trial, the judge said that as far as these four grounds were concerned, there was no basis for doing so.

The case was listed for mention on December 21 at 12.30pm.

Supreme Court ruling

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 European Court of Justice (ECJ) earlier this year as the superior court found that EU law at the time was not clear enough for a judgement 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 judgement.

Comments have been closed for legal reasons.

had complained to the garda ombudsman that DNA was “planted” on a van that he says was deliberately destroyed in a fire so it wouldn’t be made available to the defence. However, Mr Guerin said the fire began accidentally and the CCTV had been disclosed to the defence