herald

Wednesday 22 January 2020

Dwyer ruling allows 'virtual space for crime', court hears

Graham Dwyer. Photo: Collins Courts
Graham Dwyer. Photo: Collins Courts

An "enormous amount" is at stake in the State's fight against serious crime as it appeals against a key ruling in favour of convicted murderer Graham Dwyer, the Supreme Court has been told.

If a High Court judgment allowing Dwyer's challenge to a data retention law stands, that means a "virtual space" in which criminality exists cannot be accessed by the State authorities, Paul Gallagher SC said.

Phone data played a "significant" role in Dwyer's trial for the murder of Elaine O'Hara in 2015 but there was also other evidence, counsel outlined.

Data privacy and protection rights must be balanced against other rights, including to life, protection of the person and national security, he argued.

If upheld, the High Court ruling may assist Dwyer's separate appeal against his murder conviction.

That appeal is on hold pending the Supreme Court decision.

The State's appeal is against a decision of Mr Justice Tony O'Connor in December last year that part of the State's data retention laws of 2011 concerning information generated by telephones contravenes EU law and provides for an indiscriminate data retention regime.

The High Court finding also has major implications for the authorities' ability to retain, access and use information generated by mobile phones in the investigation of serious crime.

Directive

The 2011 Act was brought in to conform with a European Directive but that was later struck down by the Court of Justice of the EU (CJEU).

In its appeal, the State argues that certain CJEU decisions do not prevent a national court carrying out a proportionality test in relation to accessing retained data.

The appeal continues today.

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