State knew of data law problems for years, expert says

The State’s failure to reform its data retention laws is the reason why it is “even possible” that Graham Dwyer could overturn his murder conviction, a data privacy expert has said.

Dr Eoin O’Dell, associate professor of law at Trinity College Dublin, was reacting to an opinion from the European Court of Justice’s legal adviser supporting important elements of Dwyer’s challenge over Ireland’s mobile phone data retention regime.

He said the State had known about problems with the data access and retention regime for at least seven years, following a case taken by Digital Rights Ireland, and while a Bill to address the problems had been introduced, it has stalled on implementing the necessary changes.

If endorsed by the ECJ, the opinion would have major implications for the prosecution of serious crime across the EU. It may also affect Dwyer’s separate appeal, yet to be heard by the Court of Appeal, against his 2015 conviction for the murder of childcare worker Elaine O’Hara in 2012.

Mobile phone metadata retained by service providers and accessed by gardaí, including that relating to two phones, the “master” and “slave” phones, was an important part of that case.

The Court of Appeal will decide whether or not the safety of his conviction was dependent on the phone evidence. Sources said they did not believe the opinion would lead to Dwyer’s conviction being set aside.

Not binding

The opinion by Spanish advocate general Campos Sánchez-Bordona confirmed, in trenchant terms, ECJ decisions that general and indiscriminate retention of electronic communications traffic and location data was permitted only where there was “a serious threat to national security”.

While the opinion is not binding, it appears unlikely, given its case law, including judgments issued as recently as last month, that the ECJ’s final judgment will not be in line with it.

That would mean the Supreme Court would be constrained in how it could finalise the State’s appeal against a 2018 High Court finding that the 2011 law, under which the phone data used in Dwyer’s trial was accessed and retained, should be struck down as being in breach of EU law.

A source said this would have a “nuclear” effect on how the Garda investigates crime as the force was highly dependent on phone data. However, it was expected the ECJ’s view would be more likely to have an impact on future rather than past investigations

Senior Garda officers believe a more restricted right of access to mobile phone data, stretching back just 12 months, would be likely to emerge out of the case for criminal investigators in Ireland.

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