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Graham Dwyer fallout: judge makes significant ruling on mobile data

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Graham Dwyer

Graham Dwyer

Graham Dwyer

The European ruling in Graham Dwyer's case that the indiscriminate retention of mobile phone data for use in criminal investigations is a breach of law, does not automatically mean that such evidence should be excluded, a High Court judge has found.

Mr Justice Tony Hunt found that gardai investigating a Dublin shooting were entitled to access the killer's phone records.

It is the first ruling in an Irish court since the Court of Justice of the European Union (CJEU) decision in the Dwyer case.

Mr Justice Hunt said the right to privacy cannot extend to participation in criminal activity, is not absolute and must be balanced with the rights of others and the "proper requirements of the common good".

He said a right under European law should be considered in "precisely" the same way that a right under Irish law would be considered and does not become "a clove of garlic guaranteed to ward off all domestic vampires."

Mr Justice Hunt was asked to rule on the controversial use of mobile phone data in the trial of Wayne Cooney, who was convicted on Tuesday of murdering 22-year-old Jordan Davis.

Earlier this year the CJEU ruled in favour of murderer Graham Dwyer in his challenge to a 2011 law that required mobile phone companies to keep data relating to calls, texts and the location of mobile phones for two years.

Gardai investigating serious crimes have accessed that data to discover who suspected criminals were communicating with and to find out the general location of phones at relevant times. The evidence gleaned has been used to identify and convict numerous high-profile criminals.

Mr Justice Hunt's ruling is not binding on other judges, but it is the first indication of how Irish courts could interpret the European court's ruling.

Mr Justice Hunt said it would not be appropriate for him to comment on the European court's approach, "save to say it exhibits a strange and unusual set of priorities."

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He also said that there is no evidence for the court's finding that mobile phone data would "possibly reveal a significant amount of the private life of the person concerned," a view which he said is "not universally held outside the membership of the Court of Justice."

Having concluded that the breach of Cooney's privacy right under European law has no more weight than a breach of privacy rights under the Irish Constitution, Mr Justice Hunt said it is well established that the right to privacy is not absolute and a breach does not automatically mean evidence must be excluded.

He added: "Any privacy right that Mr Cooney may have enjoyed in this data must give way... to the pressing social necessity for the full and effective investigation of serious crime, and to the weighty, serious and important rights of society and the victims of serious crime in such cases."

However, Mr Justice Hunt accepted that as a result of the CJEU ruling, the retention of Cooney's data was a breach of Cooney's privacy rights. But the violation of that right was not "deliberate and conscious having regard to the circumstances that pertained in 2019," he added.

When gardai accessed Cooney's mobile phone records in 2019 the law was in a state of flux, the judge said, and it was still a "matter of considerable contention" as to whether the retention of mobile phone data was permitted by EU law.

Evidence gathered in 2019, he said, does not become inadmissible because the European court found in 2022 that the retention of data is a breach of citizens' rights.

He rejected arguments that it was inevitable since 2019 that the CJEU would rule as it did and pointed out that "many reputable institutions and bodies believed the data privacy rights in question ought to yield to the public interest in the investigation of serious crimes."

He further pointed to the number of European Union member states that urged the CJEU to allow police forces to continue to access mobile phone data.

Mr Justice Hunt said that the European court's ruling is "irrelevant to the 2019 states of mind that I must consider in this case. As would be expected, An Garda Siochana deployed all legitimate responses during a complex investigation into a very serious crime. I am satisfied that there was no deliberate disregard of constitutional or other rights on their part."

In a later part of the judgment he dismissed objections to the use of mobile phone evidence relating to a drug dealer who allegedly wanted Mr Davis to be killed.

The judge said: "I would happily go so far as to say that the invasion suffered by the owner of this data is therefore comparatively trivial when viewed against the invasion of the various rights of Jordan Davis, his family and the rest of society arising from his murder."

The real danger to freedom, the judge said, would lie in a failure or refusal by gardai to investigate organised murders or to use legitimate means to gain relevant evidence.

Wayne Cooney (31), with an address at Glenshane Drive in Tallaght, was convicted earlier this week following a trial, of the murder of Jordan Davis (22) at a lane-way beside Our Lady of Immaculate National School in Darndale in Dublin on May 22 2019.

He was also found guilty of possessing a 9mm semi-automatic pistol and ammunition in circumstances that give rise to the reasonable inference that he did not have them for lawful purposes on the same date and at the same location.

In his judgment, delivered before Cooney's jury trial, Mr Justice Hunt said that gardai had not engaged in a "deliberate disregard" for constitutional rights after the Supreme Court indicated that gardai could not use the Communications (Retention of Data) Act 2011 to access mobile phone data. He said that gardai, having received "high level legal advice", used search warrants to access the same information.

Their use of warrants was "unimpeachable" in the circumstances, the judge said, and was "fully in line with the requirements of the Court of Justice".

Mr Justice Hunt said the objection to the use of mobile phone data was an "alleged breach of the privacy rights of the accused".

He said that the European court's judgement compels him to find that the use of mobile phone data was lawful according to the 2011 Act and at the same time unlawful because parts of the Act were in conflict with rights conferred by the Charter of Fundamental Rights of the European Union.

He said he is compelled to respect the European court's ruling which states that the data was unlawfully retained. He noted, however, that under Irish law the retention was "entirely lawful" as it was a requirement of the 2011 Act.

He said the ruling in Dwyer or any other European case does not "compel an automatic conclusion" that the evidence should be excluded.

It is required under EU law that the accused person is given an opportunity to assert his rights and Mr Justice Hunt said that was done in Cooney's case through a "full, extensive and publicly-financed opportunity to claim and assert the disputed rights deriving from the data."

He said it is "unremarkable and long-established" that the right to privacy cannot extend to participation in criminal activity. The right to privacy, he said, is not absolute and must be balanced with the rights of others and the "proper requirements of the common good". Such rights can only be guaranteed in an ordered society and exist as "part of the spectrum of rights and obligations that constitute the type of society ordained in the Preamble to the Constitution."

There is, he said, no basis in domestic or European law for treating the right to privacy in the European Union legal code as absolute. European rights do not trump all other rights and considerations, he said.

In Cooney's case, the mobile phone data referred to an unregistered mobile phone and was "strictly limited in time and amount".

By itself the information would not indicate anything about the private lives of anyone, he said, "without the addition of an enormous amount of painstaking detective work and other information.

The proposed evidence quite simply does not engage the mischief of mass surveillance equivalence identified by the Court of Justice as the basis for Dwyer and other decisions," he said.

He said there was no sense in which gardai or the Attorney-General, the government or the telephone companies could be said to be guilty of a "deliberate and conscious violation of European Union privacy rights by maintaining and operating the 2011 Act... pending a definitive ruling by the Court of Justice." There was no "legal tomfoolery", he said, and the State did not set about "deliberately and consciously violating individual rights."

He added: "It is quite unlike a situation where police officers deliberately decide to enter a dwelling without a warrant or arrest and detain a person without any legal justification and proceed to use those occasions to gather evidence. In their efforts to obtain highly relevant and significant evidence in this investigation, I do not believe that the officers concerned were obliged to guess at the possible outcomes of litigation before the Court of Justice."


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