AMOI Leon-Issa, the mother of nine-year-old Gabriel King, was seen with tears streaming down her face as she sat in the back of the courtroom during a constitutional hearing to decide whether or not the production order granted to investigators in 2022, to search her cellphone, is a breach of her right to privacy.

This while legal counsel for the Attorney General Chambers made her case before a panel of three judges — justices Lorna Shelly-Williams, Simone Wolfe Reece and Andrea Pettigrew-Collins — on Friday in the Supreme Court.

After submissions were heard the judges disclosed that the ruling on the application by Leon-Issa to not comply with a production order for her cellphone is to be expected on or before September 29. They also extended the July 31 date by which Leon-Issa was ordered to comply with the production order, to September 29.

Leon-Issa repeatedly failed to allow police investigators to search her cellphone, following their indicating a desire to analyse information on the device as part of their investigation into the killing of her autistic son, Gabriel King, last year, after he was murdered when she reported to the police that her car had been hijacked with the child inside. The St James Parish Court had ruled that she must comply with the request for her cellphone’s password.

“The starting point really should be that the phone was found at the crime scene. Therefore, Miladies, it would necessitate the police to act in a particular way, which they did. An investigation started thereafter and the police made the requisite application under the Cybercrimes Act. The manner in which that application was made, we submit, would not have infringed on the rights of the claimant [Leon-Issa],” the legal counsel said.

Quoting Section 21 of the Cybercrimes Act, she said, “A resident magistrate, if satisfied on the basis of an application made by a constable that any data or computer output specified in the application is reasonably required for the purpose of a criminal investigation or criminal proceedings, may make, under Subsection 2, an order under this subsection that may require a person in possession of or control of the data, or other computer output, to produce it in intelligible form to the constable.”

As such, she explained that the Act provides safeguards for privacy concerns since all material produced in accordance with the production order is stored, for as long as it is retained, in a secure manner, and any records of that material be destroyed as soon as there is no more need to access the data.

“As a citizen we acknowledge that she has rights as outlined by the Charter of Fundamental Rights and Freedoms, but these rights are not absolute. … The matter of the crime that was committed must take precedence,” she said.

She went on to explain that the investigators are only interested in the relevant information on the device.

“What we are saying is that there is no breach because of the safeguards in the Act,” she said.

The legal counsel further stated that the location where the cellphone was found is important to the case, and the distinction is that if Leon-Issa had the phone in hand and lawmen requested it, as opposed to it being found at the crime scene, “then [that] would be a different matter”.

She also said that in order for Leon-Issa to submit that there was a breach, she would only be providing “mere allegations”, as the request for access to the device is insufficient for a breach of privacy, and “would not be an infringement on the rights of the claimant’s right to privacy”.