Tuesday 24 September 2019

Data retention laws should not be struck down, Graham Dwyer phone case hears

Convicted murderer Graham Dwyer claims he is innocent. Picture: Collins
Convicted murderer Graham Dwyer claims he is innocent. Picture: Collins

Aodhan O'Faolain

Ireland's current data retention laws, which were used to obtain evidence against convicted murderer Graham Dwyer, are vital for the detection, investigation, prosecution and prevention of serious crimes and should not be struck down, the High Court was told.

Brian Murray SC for the State and Garda Commissioner, said the 2011 Communications (Retention of Data) Act which allows telecommunication data to be retained "treats everybody the same."

On the fourth day of Dywer's action where he claims the use of his phone records by prosecutors during his trial for the murder of Elaine O'Hara breached his privacy rights counsel said the general retention scheme as provided for under the act can be used not only by prosecutors but also to establish an accused person's innocence.

Mobile phone data showing a person's location at a particular time would support an alibi advanced by a suspect, counsel said.

Counsel said a more targeted data retention regime, which Mr Dwyer's lawyers claim should be in place, would not work when it came to preventing or investigating potential terrorist attacks.

Such a scheme targeting people with criminal records, different socio-economic groups or areas where crimes are thought more likely to occur are unworkable, and could be deemed racist.

In Dwyer's case he had never come to the attention of the Gardai before this investigation, and lived in Foxrock, South Dublin which is not an area where many serious crimes are committed, Counsel said.

Counsel said evidence will be advanced from experts how a general data retention regime such as Ireland's has prevented attacks in the UK, from experts including British barrister David Anderson QC a former the Independent Reviewer of Terrorism Legislation in the UK, and Professor Michael Clarke who is an expert in defence studies.

In his action Dwyer claims the 2011 Communications (Retention of Data) Act, which allowed Gardai obtain and use data generated by Dwyer's mobile phone during his 2015 trial for the murder of childcare worker Elaine O'Hara breached his privacy rights and should not have been used.

He claims the 2011 Act was introduced to give effect to the 2006 EU directive concerning the retention and use of data. In 2014 the European Court of Justice (ECJ) found the directive was invalid.

Dwyer's claims the 2011 Act suffers from the same flaws identified by the ECJ.

Dwyer claims certain provisions of the 2011 laws breach his privacy rights under the Irish Constitution, European Convention on Human Rights as well as the EU Charter.

In his action against the Garda Commissioner, and the State, Dwyer seeks various declarations that his privacy rights have been breached.

The application is opposed, and the respondents say Dwyer is not entitled to any of the declarations sought.

Outlining the state's arguments Mr Murray, appearing with Sean Guerin SC and David Fennelly Bl, said Dwyer knew in October 2013 following his arrest that data relating to his phone had been obtained and used by the Gardai.

The obtaining of that data was perfectly lawful, counsel added.

That was some months before the ECJ's decision, following a case brought by Digital Rights Ireland Ltd against the Minister for Communications, in April 2014 which found the 2006 directive invalid.

Counsel said Dwyer did nothing for some time about his complaints about the retention of his mobile phone data by the Gardai.

Dwyer's High Court challenge was lodged around the time of his 2015 trial.

Counsel said Dwyer could have taken steps to have his civil action heard before his trial, which would have benefited not just the state but also his victim's family.

Counsel said while Dwyer's case was not about National Security the case did have implications about the security of the state and Cork born Dwyer (45) denies killing Ms O'Hara, and his appeal against his conviction is pending before the Court of Appeal.

The action, before Mr Justice Tony O'Connor, continues next Tuesday.

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