Garda seeks to halt trial for ‘misleading GSOC inquiry’

Detective wants High Court ruling on validity of data retention laws under which his phone records were obtained

A detective garda is seeking a High Court ruling on the validity of Ireland's data retention laws in a bid to halt his trial for giving false statements to GSOC during an investigation.

Det Garda David O'Brien has been charged with giving false or misleading information to the Garda Siochana Ombudsman Commission (GSOC) in October 2012.

Mr O’Brien, a member of the Serious Crime Review Team, the so-called “cold case” unit based at the National Bureau of Criminal Investigation at Harcourt Square in Dublin, is contesting the case.

He is being prosecuted under Section 110 of the Garda Síochána Act 2005.


His non-jury trial was due to get under-way at Dublin District Court on Wednesday and was expected to last three days.

Judge Bryan Smyth was told that the prosecution case was absolutely reliant on phone records obtained by GSOC from Meteor and Vodafone between February 1st, 2011 and March 26th that year.

The data was obtained pursuant to the Communications (Retention of Data) Act 2011.

Mr O'Brien's legal team argued that the Irish legislation was invalidated by a European Court of Justice (ECJ) decision last year in a challenge brought by Digital Rights Ireland (DRI).

The Luxembourg court struck down, on the grounds of proportionality, an EU directive allowing data retention of the phone and internet data of all citizens for up to two years, Judge Smyth heard.

In reply, Tony McGillicuddy BL, for the Director of Public Prosecutions, argued that the striking down of the EU directive did not disable the Irish data retention legislation.

He said the Communications (Retention of Data) Act 2011 remains in force.

He said that while the Act gave effect to the EU directive, the fact that the directive has been struck down does not have a domino effect on the Irish legislation.

The court heard the defendant could bring a constitutional challenge or another remedy would be to bring his case to the ECJ.

Otherwise the District Court could ask the High Court to give a ruling in a procedure known as “the consultative case stated”.

The defence side told Judge Smyth it would be seeking the consultative case stated to see if the Irish data retention legislation has been affected by the ECJ decision.

Judge Smyth agreed and adjourned the case until April 24th when the legal question will have been drafted and will then be referred to the High Court for a ruling.

Mr O’Brien’s attendance was excused attending on the next date.