Wednesday 25 April 2018

Dwyer's High Court challenge: No independent oversights on mobile data requests in serious crime probes, court told

Graham Dwyer. Photo: Collins Courts
Graham Dwyer. Photo: Collins Courts

Aodhan O Faolain

Lawyers representing Graham Dwyer have told the High Court there are no independent oversights when State entities seek data from mobile phone service providers when investigating serious crimes.

Remy Farrell SC for Dwyer told Mr Justice Tony O'Connor on Wednesday that under the 2011 Communications Act once a senior office of An Garda Siochana, a colonel in the Defence Forces, or senior officials with Competition Authority and the Revenue Commissioner make a request for data the service providers are obliged to hand over the data sought.

The Act does not provide for any independent person, such as a judge, to oversee such requests, to limit what is strictly necessary or ensure privacy rights are protected, counsel said. 

It would appear that the only persons who had oversight of the request in relation to his client was the Gardai themselves counsel said.

The lack of an independent oversight is one of the grounds advanced by Dwyer in his claim that certain provisions of the 2011 Act breach his privacy rights under the European Charter, Irish Constitution and rights under the European Convention on Human Rights.

In 2014 the European Court of Justice found a 2006 EU directive concerning data retention to be invalid. Dwyer's claims that the 2011 Act was introduced by the State to give effect to the 2006 directive, and that it also suffers from the same flaws identified by the ECJ.

Senior Counsel Remy Farrell
Senior Counsel Remy Farrell

Evidence gathered under the 2011 Act should not have been used against him in his trial, Dwyer claims.

Mr Farrell was speaking on the second day of Dwyer's challange against the Garda Commissioner and the State aimed at having certain provisions of the law that allow data from mobile phones be used by prosecutors during his trial for the murder of Elaine O'Hara.

In 2015 Dwyer was sentenced to life imprisonment after the jury found guilty of the childcare worker's murder.

He denies killing Ms O'Hara,and has challenged provisions of the 2011 Act, which allowed Gardai investigating her death obtains and use mobile phone records during his lengthy trial.

His appeal against his conviction remains pending before the Court of Appeal.

Mr Farrell's comments about the lack of an independent oversight when reading extracts of the transcript of Dwyer's trial at the Central Criminal Court, including details of Dwyer's application that certain prosecution evidence be excluded, based on the 2014 ECJ ruling.

That application was dismissed by the trial Judge Mr Justice Tony Hunt.

Mr Justice O'Connor also heard questions concerning the background of the case and details of what were put before the Central Criminal Court in 2015 to Dwyer's solicitor Mr Jonathan Dunphy by Sean Guerin SC for the state respondents and the Garda Commissioner.

The hearing continues.

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