Garda develop workaround to obtain mobile data following Dwyer ruling

Gardaí have reverted to using traditional search warrants to obtain mobile phone data in criminal investigations due to the controversy over Ireland’s data-retention regime.

Previously, under 2011 legislation, gardaí could make requests directly to telecoms companies for data on suspects’ mobile phone use, including when and where they used their phones and for how long. The companies were obliged to retain such data on all users for two years under the Act.

However, following to a case taken by Graham Dwyer, who was convicted in 2015 of the murder of Elaine O'Hara, parts of that legislation were ruled invalid by the High Court in 2018. The matter is currently subject of an appeal by the State before the Supreme Court and the European Court of Justice (ECJ).

The impasse has forced the Garda to develop a workaround to allow it to continue to obtain the same data from telecoms companies for use in serious criminal investigations, without relying on the 2011 Act.

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The use of such data has been a major factor in several high-profile criminal trials in recent years, and gardaí consider it a valuable tool in investigating gangland murders.

Instead of making requests directly to telecoms companies under the 2011 Act, investigators have started going to the District Court to obtain search warrants for the data, which compels companies to hand it over. It is believed this method is less likely to result in mobile phone evidence being ruled inadmissible when a case comes to trial.

If gardaí obtain data under the 2011 Act, while in the knowledge that it was struck down by the High Court in 2018, they risk the evidence being found inadmissible by a judge. Earlier this year, data obtained under the 2011 Act was used in the prosecution of two people for human-trafficking offences in Mullingar Circuit Criminal Court.

The defence argued the data evidence should be ruled inadmissible in light of the 2018 Dwyer ruling. Judge Frances Comerford agreed and the evidence was excluded, though the accused were eventually convicted.

The new system of obtaining data under search warrant is seen as only a stop-gap solution, informed sources say. While it allows gardaí to continue to obtain data, and brings some judicial oversight into the system, the telecoms companies are no longer obliged to retain the data.

“You can’t obtain data if it’s not been kept in the first place,” a garda source said.

Barrister Seamus Clarke SC said the workaround "only plugs one hole by bringing in judicial scrutiny. The issue of retention still remains."

Advisory opinion

The Supreme Court has referred the matter to the ECJ as it relates to European Union law. The advocate general of the ECJ is expected to publish an advisory opinion this Wednesday to assist the judges in reaching a ruling. Advocates’ opinions are typically a reliable guide as to how the court will eventually rule.

Many experts believe that, given previous ECJ rulings in the area, the court will agree that the Irish legislation is overly broad in requiring retention for two years with no judicial oversight.

In that case, it would then be up to the Supreme Court to interpret the ECJ opinion, and to either confirm or overturn the previous High Court decision striking down the Irish data-retention regime.

A Bill aimed at addressing some of the issues raised by the High Court has been drafted but the Government is waiting for the result of the ECJ case before progressing with it. This legislation is expected to significantly alter the data-retention regime. Telecoms companies would only be compelled to retain data for one year and gardaí would be required to apply to the District Court to obtain it.

Asked what measures it has taken to prepare for the ECJ ruling, a Garda spokesman said the force “does not comment or speculate on matters that are currently subject of judicial consideration”.