If Graham Dwyer's challenge to data retention law succeeds it will be 'start of his pending appeal,' his lawyer says
The sole purpose of Graham Dwyer's challenge against Ireland's data retention law is to show his rights were breached when information from his mobile phone was used by prosecutors at his trial for the murder of Elaine O Hara, the High Court has heard.
Remy Farrell SC for Dwyer said his side was making "no bones about" the case was about establishing that his client's privacy rights had been breached in relation to the retention of information from his personal mobile phone.
The case was not about any other issue and focused on Dwyer's rights only, counsel said.
If Dwyer succeeds any declaration he obtains would be "the beginning of his pending appeal" against his conviction "not the end," counsel said.
Counsel was making submissions on the ninth day of Dwyer's action against the State and the Garda Commissioner aimed at having provisions of Ireland's data retention laws struck down.
Dwyer, who denies killing Ms O'Hara, claims the 2011 Communications (Retention of Data) Act, which allowed Gardaí obtain and use data generated by his mobile phone during his 2015 trial for Ms O'Hara's murder breached his privacy rights.
Data obtained under that Act should not have been used at his trial, he claims. Dwyer argues 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 claims the 2011 Act suffers from the same flaws identified by the ECJ.
In proceedings against the Garda Commissioner, and the State, Dwyer seeks various declarations that his privacy rights under the Irish Constitution, European Convention on Human Rights and the EU Charter have been breached.
Counsel said the 2011 Act, requires requests for retained data by Gardai investigating a crime be made to a Garda Chief Superintendent not involved in the investigation, and not an independent administrative body.
Mr Farrell also told Mr Justice Tony O'Connor that much of the evidence tendered on behalf of the State was "irrelevant and inadmissible".
References were made to the use of retained data in investigations into child sexual abuse and state security. Such issues were not what Dwyer's action is about, counsel said.
The impression was given that any declarations granted in favour of Mr Dwyer would result in "the Sky falling in." Counsel said it also appeared from its evidence that the State was saying the ECJ got its decisions to retained data wrong.
In reply, Brian Murray SC for the State, disputed Mr Farrell's submissions and said the evidence was tendered to show how a general retention regime is "absolutely critical," to prevent, investigate and prosecute serious crime.
Counsel said there is nothing in the relevant ECJ decisions preventing members of police forces being the parties who grant requests for access to retained data made by other police officers.
Counsel said the court was being asked to look back at historical events in regards how data generated by
Dwyer's phone was retained and used in October 2013, before the ECJ rulings had been delivered.
The processes engaged under the 2011 Act which allowed the prosecution use the data be used during Dwyer's trial were "perfectly valid" and "legitimate," counsel said.
At that time the data was retained counsel said Ireland was required to have a general data retention regime by the EU.
For a court some years after the event to grant the declarations sought by Dwyer based on subsequent ECJ rulings would be "grotesque" counsel said.
Counsel said EU law has "no role" when it comes to national security.
As State security is not within EU competence, how could it be wrong for Ireland to have a general data retention regime for the purpose of national security, counsel added.
The case continues next week.
