State appeals against key ruling in favour of convicted murderer Graham Dwyer

An “enormous amount” is at stake for the State’s fight against serious crime in its appeal against a key ruling in favour of convicted murderer Graham Dwyer, the Supreme Court has been told.

If a High Court judgment allowing Dwyer’s challenge to a data retention law stands, that means a “virtual space” in which criminality exists cannot be accessed by the State authorities, Paul Gallagher SC said.

Phone data played a “significant” role in Dwyer’s trial for the murder of childcare worker Elaine O’Hara but there was also other evidence, counsel outlined.

Three phones were connected to Dwyer and Ms O’Hara, including two phones referred to as the “master” and “slave” phones, he said.

Data privacy and protection rights are of course important but must be balanced against other important rights, including to life, protection of the person and national security, he argued

A seven-judge Supreme Court on Monday began hearing the State’s appeal against the High Court ruling.

If upheld, the High Court ruling may assist Dwyer‘s separate appeal against his conviction for the murder of Ms O’Hara. The conviction appeal remains on hold pending the Supreme Court decision.

The State’s appeal is against a decision of Mr Justice Tony O’Connor in December 2018 that part of the State’s data retention laws concerning information generated by telephones contravenes EU law and provides for an indiscriminate data retention regime.

Use information

Mr Justice O’Connor found that sections of the Communications (Retention of Data) Act 2011 concerning access to retained data contravene EU law and the European Convention of Human Rights because there was no prior review by a court of administrative authority.

As well as being an important ruling in relation to Dwyer’s conviction appeal, the High Court finding has major implications in relation to the authorities’ ability to retain, access and use information generated by mobile phones in the investigation of serious criminal activities.

The 2011 Act was brought in to conform with a European Directive but that directive was later struck down by the Court of Justice of the EU (CJEU).

In its appeal, the State maintains that principles set out in various decisions of the CJEU do not prevent the universal retention of phone data or Garda access to that data.

Certain CJEU decisions do not prevent a national court of a member state carrying out a proportionality test in relation to accessing retained data, it also says.

Mr Gallagher argued it is an incorrect reading of the CJEU decisions to find that member States cannot adopt a general data retention system.

The test is to show that the universal retention of phone data is strictly necessary for the purposes of investigating serious crime and that police accessing some data is proportionate, he argued.

Invalid

Universal retention is necessary and, even if that is general and indiscriminate retention, it is still not invalid under EU law, he submitted. It would be both “unworkable and objectionable”, for example, to retain only the data of certain groups of people or people from a particular geographical area.

The High Court had erred in not making findings of fact to ground a proportionality assessment, he argued.

The State’s primary position is that this appeal can be decided by application of the principles laid down by the CJEU and without the need for the Supreme Court to make a reference of issues to the CJEU, he said.

Alternatively, this appeal cannot be adversely decided against the State without there being a reference to the CJEU, he submitted. A number of decisions expected from the court in other data retention cases over the coming months may clarify some issues, he added.

The appeal continues on Tuesday.