Mobile phone evidence will be allowed in murder trial
Judges at the Special Criminal Court trial of a man accused of murdering dissident republican Peter Butterly have refused an application to exclude mobile phone evidence after Graham Dwyer's successful High Court action last week.
Kevin Braney (44), of Glenshane Crescent, Tallaght, Dublin, has pleaded not guilty to murdering Mr Butterly.
Mr Braney also denies possession of a 9mm Beretta semi-automatic pistol with intent to commit murder and possession of seven rounds of 9mm ammunition on March 5, 2013, at Blackthorn Apartments, Brackenwood Avenue, Balbriggan, Co Dublin.
Mr Butterly was shot dead outside The Huntsman Inn in Gormanston on March 6, 2013.
Earlier, judges at the non-jury court ruled mobile phone data was admissible in the case.
The defence had submitted that a "material change" as a matter of law had arisen concerning the retention of data from mobile phones as a result of the Dwyer judgment that was delivered last Thursday.
The High Court found that Irish legislation, which allowed data from mobile phones to be retained and accessed, breached EU law and the European Convention on Human Rights because the retention of the data was "general and indiscriminate".
Tony McGillicuddy BL, for Mr Braney, told the court yesterday there was a specific challenge by Dwyer to Section 3 of the Communications (Retention of Data) Act 2011 which was a requirement to retain telephone data for a period of two years.
This was found to be "incompatible and inconsistent" with EU law.
He said the Special Criminal Court is an inferior court to the High Court and it must comply with the ruling.
Presiding judge Mr Justice Paul Coffey said the court had agreed to revisit its ruling from December 5 in light of the High Court ruling on December 6.
He said there was no evidence the actual operation of the 2011 Act from the time the data was retained in this case was inappropriate having regard to the law as it was at the time.
In conclusion, he said the mobile phone evidence should be admitted in the case.