Graham Dwyer phones used as ‘personal tracking devices’, lawyer argues at European Court

A legal team for convicted murderer Graham Dwyer has accused gardaí of using phones as "personal tracking devices" in their investigation of the murder of childcare worker Elaine O'Hara in 2012.

Barrister Remy Farrell SC told the hearing at the European Court of Justice in Luxembourg that the principle of proportionality must apply to data retention, and that the Irish law in place at the time which allowed for records to be stored for two years was "extreme".

“In short, the purpose of the domestic proceedings is to establish that some of the evidence used in this trial was obtained in breach of his charter rights,” Mr Farrell told the court.

He described Irish law as providing “the most minimal protection imaginable”, and said that the price movements of the owner of a mobile phone could be revealed “at the press of a button”.

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The analysis of phone metadata, showing the times, frequency and phone numbers of who was contacted, could be “more invasive of one’s privacy” than looking at the content of messages, he argued, as it could be used to infer relationships.

The European court has previously upheld a more restrictive interpretation of how law enforcement authorities can retain and access mobile phone data, which precludes police from retaining the data of someone with no reason to be a suspect in all but exceptional cases.

On Monday, Ireland's Attorney General Paul Gallagher led arguments by a group of member states who pushed back strongly against this, arguing that it would severely hamper the ability of police to fight crime.

Some raised concerns about what time limitations on the retention of data would mean for victims who take time to report an offence, for long-running offences such as in organised crime, and described the current rules as requiring police to have an idea of who their suspect is in advance.

Dwyer was a “professional family man... who lived above suspicion” prior to his detection, Mr Gallagher said, explaining that the Foxrock architect “did everything in his power to avoid detection... including disposing of mobile phones.”

He said Dwyer’s primary means of communication with Ms O’Hara “was mobile phones - none of which registered to Mr Dwyer.”

‘Breakthrough’

The traffic and location data that gardaí recovered through the discovery of two mobile phones made possible a “breakthrough” in the investigation and the identification of Dwyer, Mr Gallagher told the court.

The retention and use of such mobile phone data had a “critical role” in fighting serious crime and its use for such purposes could not be considered disproportionate, he argued.

Several member states referred to the murder case as an example of a crime that could not have been solved within the rules set by the court, and urged judges to reconsider their position.

Some warned that public faith in EU law and institutions, in states’ ability to keep citizens safe and fight crime, would be undermined if data law precluded an effective justice system.

“Member States cannot be deprived of an essential investigative tool in the prevention of serious crime,” Mr Gallagher told the court.

He described the issue as one of “deep and genuine public concern and interest to EU citizens”, and said that the primacy of EU law rested not only on its authority but also on its “rationality”.

“This risks undermining the authority and integrity of EU law,” Mr Gallagher warned.

The facts of the case were “very troubling”, he reminded the judges. “Mr Dwyer cultivated an abusive sexual relationship with his victim, a vulnerable person... culminating in her murder,” Mr Gallagher said.

The use of “telecommunications to groom and prepare a victim” is a notable feature of crimes perpetrated on women, children and vulnerable people, he added.

Particular concern

Curtailing the ability of law enforcement authorities to retain and use such data would restrict their ability to prevent and prosecute serious crime “to the point of impossibility”, he added, and would undermine the rights of victims, such as the right to life.

Traffic and location data is used in an “increasing number” of cases both by the prosecution and defence, he noted, and certain serious crime “could only be investigated and solved because of the availability of such data”.

Mr Gallagher described a “particular concern in Ireland” about the implications of restricting the retention and use of mobile phone data infighting “the very serious criminality carried out by organised crime groups, including those formerly involved in terrorist activity”.

The states of Germany, Belgium, the Czech Republic, Denmark, Estonia, Spain, France, Cyprus, the Netherlands, Poland, Portugal, Finland and Sweden all made submissions as well as Ireland, reflecting the intense international interest due to the implications for law enforcement.

French representative Tanguy Stéhelin described the use of modern technology to fight serious crime as the “cement of our societies” and that in many cases access to digital communications was the “only” way to solve the case.

The Cypriot representative said that “the republic of Cyprus would like to agree fully with what was said by the representative of Ireland”, while Spain agreed with the attorney general that “we cannot find justifications for citizens to not have access to this toolkit”.

The hearing has now concluded.

On November 18th, the advocate general of the court is expected to publish an advisory opinion to assist the judges in reaching a ruling.

It will ultimately be up to the Irish courts to determine if there is any bearing from the data law ruling on Dwyer’s conviction.

Dwyer, who was convicted in 2015, previously successfully challenged an Irish mobile phone data retention law, a judgement that was appealed to the Supreme Court by the State. The Supreme Court has asked the European court for clarifications, as the issue concerns EU law.