A report by a former chief justice supports convicted murderer Graham Dwyer’s claim that Ireland’s data retention legislation breaches European laws, the High Court has been told.
Remy Farrell SC, for Dwyer, told Mr Justice Tony O’Connor that John Murray, in a report published last year, said the Communications (Retention of Data) Act 2011 amounts to mass surveillance of the entire population of the State and is contrary to EU legislation.
While the contents of the report, commissioned in 2016 after allegations that journalists records were wrongfully accessed by the Garda Síochána Ombudsman Commission, are the opinion of a now retired judge, they tie into Dwyer’s complaints about Ireland’s indiscriminate data retention regime, he said.
Dwyer has taken proceedings against the Garda Commissioner and the State aimed at having struck down certain provisions of the 2001 law that allowed data from mobile phones be used by prosecutors during his trial for the murder of Elaine O’Hara.
The respondents say he is not entitled to any of the declarations he seeks.
Jailed for life
Dwyer was jailed for life in 2015 after a jury found guilty of the childcare worker’s murder. He denies killing Ms O’Hara and his appeal against conviction remains pending before the Court of Appeal.
Dwyer’s complaints include the 2011 Act does not provide for any independent person, such as a judge, to oversee such requests, to limit what is strictly necessary or ensure privacy rights are protected before the material is handed over.
It would appear the only people who had oversight of the request in relation to his client were gardaí themselves, counsel said.
Dwyer claims provisions of the 2011 Act, introduced to give effect to a 2006 EU Directive concerning data retention, breach his privacy rights under the Constitution, the European Charter and European Convention on Human Rights.
The European Court of Justice in 2014 found the 2006 directive was invalid, Dwyer claims the 2011 Act was introduced by the State to give effect to the 2006 directive and the Act suffers from the same flaws identified by the ECJ.
Evidence gathered under the 2011 Act should not have been used against him in his trial, Dwyer claims.
On the second day of the action on Wednesday, Mr Justice O’Connor heard evidence from Dwyer’s solicitor, Jonathan Dunphy, concerning his statement supporting his client’s challenge.
Questioned by Seán Guerin SC, for the State, Mr Dunphy accepted there were strands other than the retention of mobile phone data that resulted in gardaí arresting Dwyer in October 2013.
Mr Dunphy accepted the criminal trial had been told Dwyer, in interviews with gardaí following his arrest, volunteered personal and private information about his family and professional life.
Mr Dunphy agreed that evidence, including oral testimony and text messages removed from other phones about Dwyer’s movements and location at certain times, as well as the evidence obtained from retained data, was used by the prosecution during the trial.
Mr Dunphy agreed neither he nor Dwyer had made a complaint under the provisions on the 2011 Act about the use of the retained data.
In reply to Mr Farrell, Mr Dunphy agreed the complaints mechanism provided for in the 2011 Act was not relevant in regards to the assertion the disputed provisions breaches Dwyer’s rights.
The hearing continues.