Graham Dwyer wins important legal battle against State & Garda

Graham Dwyer has won an important legal battle against the State and the Garda Commissioner as part of his bid to overturn his conviction for the murder of childcare worker Elaine O'Hara.

Mr Justice Tony O’Connor found Dwyer is entitled to limited declarations that sections of Ireland’s data retention laws are inconsistent with EU law.

Dwyer, who was not in court for the judgment, intends to use the findings in his forthcoming appeal against his conviction.

The State argued the action also had major implications for ability to retain, access and use information generated by mobile phones in the investigation of serious criminal activities.

An appeal is considered likely.

Dwyer had claimed data gathered from his phone under the 2011 Communications (Retention of Data) Act should not have been used at his 2015 trial before the Central Criminal Court.

The data placed the phone at specific places at particular times and dates and was used to link Dwyer to another mobile phone which, the trial was told, Dwyer had used to contact Ms O’Hara.

Dwyer claims the use of the data was unconstitutional and breached his rights under the EU Charter and the European Convention on Human Rights, including his right to privacy.

In his judgment on Thursday, Mr Justice O’Connor found the 2011 Act provides for a general and indiscriminate data retention regime.

Stressing the primacy of European law, he found sections of the 2011 Act concerning information generated by telephones contravene both EU law and findings of the European Court of Human Rights.

He said Dwyer is entitled to certain declarations, the precise wording of which are to be agreed by the parties at a later date, limited to telephony data and excluding any effect on the security of the State and the saving of human life.

He said it did not automatically follow that telephony data retained and accessed contrary to EU law used by the prosecution in Dwyer’s trial will lead to the quashing of his conviction.

Not established

Lest there be any misunderstanding, the judge said Dwyer had not established to the court that the actual operation of the 2011 Act in relation to retention of his phone data was inappropriate, unnecessary or disproportionate.

Earlier in his judgment, he said the State should “tread carefully” when “trenching upon the dignity and privacy of the human person” in the sphere of telephony data retention and access.

“Just as crime is required to be investigated there should be transparency of use or abuse of power.”

Notification, supervision and enforceable sanctions are means to limit abuses, he said.

“The chilling effect on privacy and the rights of free expression and association by actual, feared and mandatory surveillance cannot be underestimated.”

The feared abuse of 21st-century surveillance was something that resonated with the dehumanised, unpleasant society portrayed in George Orwell’s novel 1984, he added.

The 2011 Act was introduced to give effect to a 2006 EU directive concerning the retention and use of data.

The European Court of Justice (ECJ) found in 2014 the Directive was invalid and that position was further strengthened in subsequent rulings by that court in 2016.

Dwyer claimed the 2011 Act suffers from the same flaws identified by the ECJ.

In his lengthy judgment, Mr Justice O’Connor was satisfied the 2011 Act provides for an indiscriminate retention regime.

The ECJ had found such regimes are prohibited under Articles 7 and 8 of the European Charter, he said.

Declarations

He said he was prepared to make declarations that sections of the 2011 Act are inconsistent with EU law.

The availability of private surveillance through CCTV, social media or other artificial intelligence facilities was outside the scope of this case, he said.

His findings were in relation to the retention and access of telephony data only, he stressed.

The ECJ had found the fighting of serious crimes cannot justify the general and indiscriminate retention regime and the practices of how gardaí apply for and obtain mobile phone data were not enough to satisfy decisions of the European courts concerning access.

Under the 2011 Act, requests for retained telephone data are made to and considered by the Garda established Telecommunications Liaison Unit (TLU).

The sections of the 2011 Act concerning access to retained data contravene EU law and the European Convention of Human Rights because there is no prior review by a court or an independent administrative authority for access to telephony data, he held.

There was also no adequate legislative safeguards in the current system against abuse and too much is left to those who implement and utilise the access provisions, he said.

The declarations could not be prospective only, as the State had argued, and nor could they be suspended to allow the legislature time to enact any new law.

It was not necessary to consider the constitutionality of the various sections of the 2011 Act because Dwyer had obtained effective relief in the form of certain declarations, the judge added.

The matter will return before the court later this month.