A HITMAN WHO tried to murder a Kinahan cartel target seven years ago has lost an appeal in the Supreme Court against the use of phone data that was used to convict him.

Caolan Smyth, formerly of Cuileann Court, Donore, Co Meath, was found guilty of the attempted murder of James ‘Mago’ Gately, who was shot five times in 2017, at the Special Criminal Court in January 2021.

He had pleaded not guilty to Gately’s attempted murder. He had also denied the possession of a firearm with intent to endanger on the same date and location.

A second man, Gary McAreavey, formerly of Gort Nua, Station Road, Castlebellingham, Co Louth, was found guilty for his part in burning out the car used in the shooting.

The prosecution case relied on mobile phone locations, phone-use being tied to the car’s movements and positive Garda identifications of Smyth from CCTV at the filling station.

Shortly after the attempted murder, McAreavey was spotted on CCTV in Castlebellingham buying petrol, which the non-jury court found was used in the “comprehensive destruction” of the getaway car near Dromiskin after Smyth and McAreavey travelled in convoy to the burn-site.

Smyth, and McAreavey, had contested the admissibility of traffic and location
data and claimed that it was accessed and retained unlawfully. 

They argued that the data retention and access provisions of the Communications (Retention of Data) Act 2011 were incompatible with EU law.

In a ruling today, the Supreme Court dismissed the appeal and found that the use of phone metadata as evidence in the case against Smyth and McAreavey was lawful. 

Mr Justice Maurice Collins concluded that the “disputed traffic and location data was properly admitted in evidence” in both cases. 

He found that the evidence “was not taken in deliberate or conscious violation of any Charter rights of Mr Smyth or Mr McAreavey and the breach of rights involved derived from subsequent legal developments, specifically the striking down of the relevant provisions of the 2011 Act as incompatible with EU law”. 

He found that “the community’s interest in the adjudication of the case against them on its merits weighed decisively in favour of the admission of the evidence and it is the exclusion of that evidence rather than its admission that would bring the administration of justice into disrepute”. 

Mr Justice Collins was supported in the ruling by five of his six colleagues. Mr Justice Gerard Hogan held that the Special Criminal Court and the Court of Appeal erred in admitting the traffic and location data. 

He held that although there was no formal finding that the 2011 Act breached EU law in June 2017, the continued reliance on the data could be characterised as “reckless” or “grossly negligent.”

The court also quashed McAreavey’s conviction for assisting an offender and concluded that the prosecution had failed to prove that McAreavey “knew or believed” that Smyth was guilty of attempted murder when he helped him to burn out the car. 

“I conclude that section 7(2) of the 1997 Act requires the prosecution to allege and prove that the accused knew or believed either that the principal offender was guilty of the offence actually committed by them or that he or she was guilty of some similar offence, arising from the same circumstances in which the actual offence was committed,” Mr Justice Collins said.

“That was not established by the prosecution here and, accordingly, I would allow Mr McAreavey’s appeal and set aside his conviction.”