Former architect Dwyer was jailed for life for the murder of childcare worker Elaine O’Hara, in a case which relied heavily on telephone call and location data.
Ireland’s data retention laws are “extreme” and provide the most minimal protection possible against abuse, a lawyer for killer Graham Dwyer has told the Court of Justice for the European Union (CJEU).
Barrister Remy Farrell SC made the argument during a hearing of the Grand Chamber of the Luxembourg-based court which is considering key legal questions that could have an impact on Dwyer’s bid to overturn his conviction.
Former architect Dwyer (48) was given a life sentence in 2015 for the murder of childcare worker Elaine O’Hara (36), in a case which relied heavily on telephone call and location data.
Significant questions on data retention law were referred by the Supreme Court to the CJEU after Dwyer successfully challenged the Irish law under which his phone data was retained and seized in the High Court in 2018.
Appearing via video link, Attorney General Paul Gallagher SC, for the State, told the 15-judge court that getting rid of a data retention regime would allow serious criminals to put themselves beyond the reach of investigators.
However, appearing in court, Mr Farrell said two CJEU decisions delivered since the questions were referred to it by the Supreme Court confirmed that general and indiscriminate retention of data was impermissible.
The State’s top legal advisor and Dwyer’s legal team were among 17 parties, including lawyers for ten other EU states, who addressed the CJEU on data retention issues raised by the Dwyer case and two German cases.
Mr Gallagher said the Dwyer case was a perfect example of just why a retention regime is needed.
The Attorney General said Dwyer had cultivated an abusive sexual relationship with a vulnerable victim, culminating in her murder.
He said Dwyer “did everything in his power” to conceal his role in the murder of Ms O’Hara.
“When she disappeared without trace, so did their mobile phones,” Mr Gallagher said.
Dwyer, he said, was a professional family man who lived above suspicion.
It was only after unregistered phones they had been using were discovered and phone traffic and location metadata was compared with the movements of Dwyer’s registered phone that the breakthrough came, the court heard.
“This had a key role in identifying Dwyer and establishing his guilt beyond a reasonable doubt,” he said.
The High Court found the Irish law, under which telecoms providers have to retain customer data for two years, breached EU law as it was general, indiscriminate and the system used by gardaí for accessing data lacked independent oversight from a judge.
The State appealed the High Court finding to the Supreme Court, which in turn referred key legal questions to the CJEU.
The Supreme Court has signalled it agrees the system provided for under the Communications (Retention of Data) Act 2011 does not meet EU standards as there is insufficient independent review in advance it being accessed by gardaí.
But it does not want to apply the decision retrospectively as the 2011 Act was only brought in as a result of a 2006 EU directive, one which was later struck down by the CJEU.
If the Supreme Court is found to have the power to make its findings not retrospective, this would harm Dwyer’s chances of overturning his conviction as the law at the time his data was seized would still be considered to have been valid.
The Supreme Court also believes that a system of universal but limited retention of telephone data is not incompatible with EU law because the investigation of serious crime would be impossible without it.
It asked the CJEU to guidance on these and other issues before it finalises its ruling.
Mr Farrell told the Grand Chamber that Dwyer was not a privacy campaigner and his challenge to the 2011 Act was a step that had to be taken before he could proceed with a separate criminal appeal.
The barrister said a number of the questions posed by the Supreme Court last year had since been answered in CJEU rulings on two other cases, a French and Belgian one called ‘La Quadrature du Net v Premier Ministre’ and a UK case called ‘Privacy International’.
He said the court had confirmed that general and indiscriminate retention of data was impermissible.
Mr Farrell said the Irish law, under which requests for data by garda investigators are processed by a separate garda unit, provided the “most minimal protection possible, if indeed it could even be described as protection”.
He said the two-year retention period was “extreme” and at the outer limit of what was possible under the struck down 2006 directive.
On the question of whether the Supreme Court had the power to declare its findings do not have retrospective effect, Mr Farrell said such a finding would be an invitation to domestic courts to ignore breaches of the EU Charter of Fundamental Rights and act with impunity.
The evidence gardaí got was important as it “acted as a personal tracking device”, he said. The data showed who Dwyer was in contact with and with whom he was in an intimate relationship with.
The barrister said such metadata can be extremely revealing, even more so that the content of such mobile phone interactions.
He said Dwyer had not been under suspicion until after facts came to light through mobile phone data, and that specific conclusions were made about his life. Had his data not been retained, it would not have been available to the police.
In his oral submission, Mr Gallagher told the court that Ireland recognised the right to privacy but said the CJEU itself had found this was not an absolute right and other issues must be considered.
He said that even a serious interference with these rights can be justified by the need to protect the rights and freedoms of others.
Mr Gallagher also said other more limited regimes of retaining data, such as doing so on a geographical basis or targeting specific individuals, had been shown to be ineffective. The fight against crime would be “significantly compromised”, he said.
The Dwyer case, he said, had illustrated the “critical role” of communications data in criminal investigations.
He said serious criminals “do all in their power” to avoid detection. Privacy would act as a shield against investigation of the most serious crimes without a proper retention regime. Public confidence would be damaged, he said.
Mr Gallagher said the Supreme Court had noted that the investigation and prosecution of serious crimes, including those against women, children and vulnerable persons, would in many cases be impossible without access to such data.
He told the CJEU there were also particular issues in Ireland with organised crime, including crime involving paramilitary activity.
On the retrospectivity issue, he said it would be a concern if courts were being asked to adopt conclusions which run contrary to the evidence before them.