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.

Irish Examiner - - Front Page - Ann O’Lough­lin

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.

Pic­ture: Collins Courts

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.

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