The Garda inquiry into a vicious assault on a 73-year-old man during a burglary in Co Sligo last month is not being frustrated by an unrelated legal challenge taken by convicted murderer Graham Dwyer, informed sources have said.
Gardaí also said they were unaware of any visit Tom Niland made to a Credit Union to withdraw a substantial sum of money before the attack, despite some reports suggesting that this was why he was targeted. No evidence of any withdrawal has come to light so far in the investigation.
Mr Niland suffered serious injuries to his head and body when three masked gang members attacked him at his home in Skreen on the evening of January 18th. He remains on life support at Sligo University Hospital.
Garda sources told The Irish Times that some people in Mr Niland’s community appear to believe the investigation team cannot deploy long-established techniques to find his missing phone because Dwyer’s case has somehow struck down the ability to access records or ‘ping’ a phone to locate it.
The sources said that belief was unfounded, with one adding that the inquiry was “in no way hampered” by any issues flowing from that case.
A number of data experts familiar with the possible legal ramifications of Dwyer’s action concurred with the Garda view. They said that should Dwyer, as expected, win his challenge over the way his phone data was retained and accessed by gardaí, criminal investigators would still be able to access the phone records and data of suspects and victims.
“The big difference will be that the mobile phone companies won’t be able to retain that data for years and the gardaí won’t be able to access that data without a warrant,” said one source. “The Dwyer case is not about accessing someone’s data during an investigation into a crime that happened last week or last month or even a couple of months ago.”
Another source said telecoms companies retained data, usually for six months, for use in the day-to-day running of their businesses. He said these “live records” would likely always be retained by the companies regardless of the outcome of the Dwyer case.
These records would always be available to gardaí investigating a crime, once they were sought through the proper channels, he continued. The Garda’s ability to ping a phone to locate it based on GPS data was unrelated to any of the issues in the Dwyer case and would not be set aside as a result, the source said.
In recent years, gardaí have reverted to using traditional search warrants to obtain mobile phone data in criminal investigations due to the controversy over Ireland’s data-retention regime brought into focus by the Dwyer case.
Previously, under 2011 legislation, gardaí could make requests directly to telecoms companies for data on a suspect’s mobile phone use, including when and where they used their phones and for how long. The companies were obliged to retain such data on all users for two years under the Act.
However, following a case taken by Dwyer, who was convicted in 2015 of the murder of Elaine O'Hara largely based on historical phone records, parts of that legislation were ruled invalid by the High Court in 2018. It held that these breached EU law by allowing for general retention of data without necessary safeguards or independent oversight.
A formal striking down of the 2011 law was put on hold pending the State's appeal to the Supreme Court, which has asked the Court of Justice of the EU (CJEU) to decide on important issues of EU law affecting the case.
An advocate general, a senior judicial adviser to the CJEU, gave an important opinion apparently supporting Dwyer’s arguments that the Irish regime breached EU law. The opinion is not binding on the CJEU but many consider it is likely the court will endorse it when it hands down its judgment, which is expected in the coming weeks.
Legal experts said that even if the outcome forces the State into reforming the data retention regime and access to it, data is still highly likely to be retained for months by telecoms companies. Gardaí, they said, would still be able to access the data under warrant for a period of up to six months rather than two years.