Curtailing use of phone data would undermine EU law Ireland argues in Dwyer case

Curtailing police ability to use mobile phone data to combat serious crime would undermine public faith in justice and in European Union law, Ireland’s attorney general has argued in the Graham Dwyer case.

Ireland is among 14 EU states that have made submissions in a case heard Monday at the European Court of Justice in Luxembourg, in which judges are seeking to determine the extent of privacy protections in EU data law.

Mobile phone records helped to convict Dwyer in 2015 for the murder of childcare worker Elaine O’Hara in 2012.

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

On Monday, Dwyer’s legal team told the Luxembourg court that Irish law allowing for data to be retained for two years was “extreme”.

Remy Farrell SC told the court that the principle of proportionality must apply to data retention, and that in Dwyer’s case mobile phones were effectively used as “personal tracking devices”.

“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.

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.

The precise movements of the owner can be revealed “at the press of a button”, Mr Farrell said, describing Irish law as providing “the most minimal protection imaginable”.

However, Ireland’s attorney general Paul Gallagher said the retention and use of such mobile phone data had a “critical role” in fighting serious crime and that its use for such purposes could not be considered disproportionate.

Mr Gallagher described it as a “very troubling case, which has generated very significant public attention”.

“Mr Dwyer cultivated an abusive sexual relationship with his victim, a vulnerable person... culminating in her murder,” he told the court.

“Their primary means of communication was mobile phones - none of which registered to Mr Dwyer,” he continued.

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

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 Mr Dwyer, Mr Gallagher told the court.

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.

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”.

He 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”.

Mr Gallagher concluded by saying that the issue had caused serious problems for member state governments.

“Member states cannot be deprived of an essential investigative tool in the prevention of serious crime,” the attorney general said.

He described the issue as one of “deep and genuine public concern and interest to EU citizens”, and said 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 case is being heard together with two other cases involving German telecom companies that challenged requirements to retain data and provide it to law enforcement agencies, as they all concern the same aspect of EU law.

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

The hearing is expected to conclude on Monday and the European court’s advocate general is expected to produce an opinion in the coming two months, to help the court’s judges come to a conclusion on the issue.

The judgement will ultimately clarify an aspect of EU data law. But it will remain for the Irish courts to determine whether it means some evidence used to convict Dwyer should be considered inadmissible, and what the implication would be for his conviction.

Lawyers for Dwyer are hoping that the judgement will be applied retrospectively, and therefore apply to his case, rather than for forthcoming cases alone.

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