The judge warned that the State should be careful when trenching upon the dignity and privacy of the human person in the area of telephony data access and retention.
Graham Dwyer has won an important legal battle against the State and the Garda Commissioner as part of his bid to overturn his conviction for the murder of childcare worker Elaine O’Hara.
Mr Justice Tony O’Connor found that the Cork-born architect is entitled to certainly limited declarations concerning provisions of Ireland’s data retention laws.
The judge stressing the primacy of European law found that sections of Ireland’s retention laws concerning information generated by telephones contravene both EU law and findings of the European Court of Human Rights.
Ireland’s data retention laws provide for an indiscriminate retention regime, the judge said.
Dwyer, he said, is entitled to certain declarations which are to be formally agreed by the parties at a later date and will be limited to telephony data and will exclude any effect on the security of the State and the saving of human life.
The judge remarked that the State should tread carefully when trenching upon the dignity and privacy of the human person in the sphere of telephony data retention and access.
“Just as crime is required to be investigated, there should be transparency of use or abuse of power,” he said, adding that notification, supervision and enforce able sanctions are means to limit abuses.
“The chilling effect on privacy and the rights of free expression and association by actual feared and mandatory surveillance cannot be underestimated.”
The feared abuse of 21stcentury surveillance was something that resonated with the dehumanised society portrayed in George Orwell’s novel Nineteen Eighty-Four, the judge said.
As well as being an important ruling in respect to Dwyer’s appeal the State had argued the action also had major implications in relation to the ability to retain, access and use information generated by mobile phones in the investigation of serious criminal activities.
Dwyer, who was not present in court for the ruling, intends to use the High Court’s findings as part of his appeal against his conviction.
However, an appeal by the State defendant’s against the decision, which considered aspects of the law never previously considered by the Irish courts, is highly likely.
In his action, Dwyer, who denies killing Ms O’Hara, claimed that data gathered from his phone, under the 2011 Communications (Retention of Data) Act, should not have been used at his 2015 trial before the Central Criminal Court.
The data, which was generated by Dwyer’s work phone, placed the phone at specific places at particular times and dates.
That data was used to link Dwy er to another mobile phone the prosecution told the jury during his high-profile trial that he acquired and used, to contact Ms O’Hara with whom he had an affair.
The use of the data, Dwyer claimed, was unconstitutional and breached his rights under the EU Charter and the European Convention on Human Rights, including his right to privacy.
Dwyer’s lawyers argued the Act was introduced to give effect to a 2006 EU directive concerning the retention and use of data.
The European Court of Justice (ECJ) found in 2014 the directive was invalid and that position was further strengthened in subsequent rulings by that court in 2016.
He claimed the 2011 Act suffers from the same flaws identified by the ECJ.
The State opposed his arguments and said Dwyer’s application was misconceived and should be dismissed.
It also argued that Dwyer cannot escape the fact his application to exclude evidence generated by his mobile telephone from the jury at his 2015 trial was rejected by the judge presiding over his trial. It further argued the laws that allow the authorities to access and utilise retained data, are extremely important in the detection, prevention and investigation of serious crime, including cybercrime, organised crime gangs, murder and terrorism.
Mr Justice O’Connor said he was satisfied the 2011 Act provides for an indiscriminate retention regime.
The ECJ, the judge said, had found that such regimes are prohibited under Articles 7 and 8 of the European Charter, and the court said it is prepared to make declarations that sections of the 2011 Act are inconsistent with EU law.
The judge said there was a limit to what the court could consider.
The availability of private surveillance through CCTV, social media or other artificial intelligence facilities falls outside the scope of what he was considering in this case.
His findings were in relation to the retention and access of telephony data only, and the declarations will exclude any effect on the security of the State and the saving of human life, the judge added.
The judge, noting the primacy of EU laws, said the ECJ had found that the fighting of serious crimes cannot justify the general and indiscriminate retention regime.
The judge added that practices of how Garda apply for and obtain mobile phone data were not enough to satisfy the decisions of the European Courts in regards to access.
The sections of the 2011 Act concerning access to retained data contravene EU law and the European Court of Human Rights because there was no prior review by a court of an independent administrative authority for access to telephony data.
Under the 2011 Act requests for retained telephone data are made to and considered by the Garda established Telecommunications Liaison Unit.
In addition, there are no adequate legislative safeguards in the current system against abuse. Too much is left to those who implement and utilise the access provisions.
The judge also held that the declarations could not be prospective only as the State had argued and could not be suspended to allow the legislature time to enact any new law. It was not necessary to consider the constitutionality of the various sections of the 2011 Act because Dwyer had obtained effective relief in the form of certain declarations, the Judge added.
However, the Judge said that it did not automatically follow that telephony data retained and accessed contrary to EU law used by the prosecution in Dwyer’s trial will lead to the quashing of his conviction.
Le st there be any misunderstanding, the judge said Dwyer had not established that to this court that the actual operation of the 2011 Act from the retention of data from the mobile phone was inappropriate, unnecessary or disproportionate.
The matter will return before the court later this month.
Clockwise from main: Graham Dwyer leaving the Four Courts in December 2013 after his bail application was refused following a Supreme Court hearing; murder victim Elaine O’Hara; Graham and Gemma Dwyer at their home in Dublin 6 in 2007; and Graham Dwyer socialising at a Bandon pub before his arrest.