Graham Dwyer’s challenge to data laws could affect State security

Convicted murderer Graham Dwyer’s challenge to laws permitting retention and use of mobile phone data has implications for Ireland’s security, lawyers for the State and the Garda Commissioner have told the High Court.

Ireland’s current data retention laws, which were used to obtain evidence against Dwyer, are vital for the detection, investigation, prosecution and prevention of serious crimes and should not be struck down, Brian Murray SC said.

The 2011 Communications (Retention of Data) Act, which allows telecommunication data to be retained, “treats everybody the same”, he argued. While Dwyer’s case is itself not about national security, the case has implications for the security of the State, he said.

Mr Murray was making arguments opposing Dywer’s action alleging the 2011 Act, which permitted the use of his phone records by prosecutors during his trial for the murder of Elaine O’Hara, breached his privacy rights.

Dwyer (45) denies killing Ms O’Hara, and his appeal against his conviction is pending before the Court of Appeal.

Invalid

In his High Court proceedings, Dwyer says the 2011 Act was introduced to give effect to a 2006 EU directive concerning the retention and use of data which was found invalid in 2014 by the European Court of Justice (ECJ).

The 2011 Act suffers from the same flaws as the ECJ had identified in the directive and breaches his privacy rights under the Constitution, European Convention on Human Rights and the EU charter.

Beginning his arguments on Friday, Mr Murray said the general retention scheme provided for under the Act could be used not only by prosecutors but also to establish an accused person’s innocence.

Mobile phone data showing a person’s location at a particular time would support an alibi advanced by a suspect, he said.

Criminal records

A more targeted data retention regime, as advocated by Dwyer’s lawyers, would not work when it came to preventing or investigating potential terrorist attacks. A scheme targeting people with criminal records, different socio-economic groups or areas where crimes are thought more likely to occur, would be unworkable and could be deemed racist.

In Dwyer’s case, he never came to the attention of gardaí before this murder investigation, and he lived in Foxrock, Dublin, not an area where many serious crimes are committed, counsel said.

Prevented attacks

Counsel said evidence will be advanced from experts how a general data retention regime such as Ireland’s had prevented attacks in the UK, from experts including British barrister David Anderson QC, a former independent reviewer of terrorism legislation in the UK, and Prof Michael Clarke, an expert in defence studies.

Mr Murray said Dwyer knew in October 2013 following his arrest that data relating to his phone had been obtained and used by gardaí. The obtaining of that data was perfectly lawful, counsel added.

The data was also obtained some months before the ECJ’s 2014 decision, following a case brought by Digital Rights Ireland Ltd against the Minister for Communications, which found the 2006 directive invalid.

Dwyer did nothing for some time about his complaints about the retention of his mobile phone data by gardaí and this High Court challenge was lodged around the time of his 2015 trial, counsel said. Dwyer could have taken steps to have this civil action heard before his trial, which would have benefited not just the State but also his victim’s family, counsel said.

The action continues on Tuesday.