Crime investigations ‘virtually impossible’ if data law removed

Dwyer legal challenge told retained data needed against ‘under the radar’ criminals

Convicted murderer Graham Dwyer is attempting to have   provisions of Ireland’s data retention laws struck down. File photograph: Cyril Byrne

Convicted murderer Graham Dwyer is attempting to have provisions of Ireland’s data retention laws struck down. File photograph: Cyril Byrne


A senior Garda has told the High Court it would be “virtually impossible” to investigate many serious crimes committed in the State without the use of retained communication data.

Detective Chief Superintendent Anthony Howard, who heads the Garda Special Detective Unit, or special branch which combats organised crime and terrorism, said use of retained data is important to gardaí because many criminals operate “under the radar”.

Mr Howard was giving evidence before Mr Justice Tony O’Connor on behalf of the State and Garda Commissioner on the eighth day of an action by convicted murderer Graham Dwyer aimed at having provisions of Ireland’s data retention laws struck down. Dwyer (45) denies killing childcare worker Elaine O’Hara and his appeal against his conviction is pending before the Court of Appeal.

In reply to Sean Guerin SC, for the State, Chief Supt Howard said the use of retained data had played a very important role in investigations of many serious crimes here such as murder and tiger kidnappings. He cited examples of gardaí being able to access information generated by mobile phones in criminal investigations.

In one case, retained data was used to disprove an alibi claim by a suspect in a homicide and had provided evidence about the location of certain persons at the time when offences had occurred, he said. While he was not involved in the investigation of Elaine O’Hara’s murder, he said retained data was used in another case to identify a suspect who had previously never come to the attention of gardaí.

Surge in requests

About 20 per cent of requests in 2017 for retained data related to murder investigations. There was a surge in the number of requests made by gardaí in 2017 because of several cold case reviews and following the shooting at the Regency Hotel and subsequent feud between the Kinahan and Hutch organised crime gangs, he said.

Also on Thursday, a retired Detective Chief Supt, Peter Kirwan, a former head of the Garda Security and Intelligence Section, said the assessment of Garda requests for access for retained telecommunications data is “independent in practice”.

Part of his role, until his retirement last year, was to assess requests for retained telecommunications data before making a formal request to the service providers for the data, he said.

Under cross examination by Remy Farrell SC, for Dwyer, Mr Kirwan said he had on several occasions turned down requests by gardaí investigating crimes for retained data, including from officers conducting investigations ordered by the Garda Commissioner. The refusals were made because the requests did not meet the criteria required, he said.

In his action, Dwyer claims the 2011 Communications (Retention of Data) Act, which allowed gardaí obtain and use data generated by Dwyer’s mobile phone during his 2015 trial for the murder of Elaine O’Hara, breached his privacy rights.

The 2011 Act was introduced to give effect to the 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 claims the 2011 Act suffers from the same flaws identified by the ECJ and wants declarations that his privacy rights under the Constitution, European Convention on Human Rights and the EU Charter have been breached. Evidence has concluded and legal submissions, expected to take several days, begin on Friday.