The sole purpose of Graham Dwyer's challenge to Ireland's data retention laws 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 been told.
Remy Farrell SC, for Dwyer, said his side had "never shied away from the fact" the case was about establishing his client's privacy rights were breached in relation to 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 succeeded, any declaration obtained would be the “beginning” of his pending appeal against his conviction, “not the end”.
He was making submissions on the ninth day of Dwyer’s action against the State and the Garda Commissioner aimed at having provisions of the Communications (Retention of Data) Act 2011 struck down.
Dwyer, claims the provisions, which allowed gardaí obtain and use data generated by his mobile phone during his 2015 trial, breached his privacy rights under the Constitution, European Convention on Human Rights and the EU Charter.
The 2011 Act was introduced to give effect to a 2006 EU directive concerning the retention and use of data.
The Directive was struck down in 2014 by the European Court of Justice (ECJ) as invalid and that position was further strengthened in subsequent rulings by that court in 2016.
Dwyer claims the 2011 Act suffers from the same flaws as identified by the ECJ.
In submissions on Friday, Mr Farrell said the case concerns the ECJ’s “very clear” findings on general and indiscriminate data retention regimes like Ireland and how retained data is accessed.
Independent body
The 2011 Act require requests for retained data by gardaí investigating a crime to be made to a Chief Superintendent not involved in the investigation and not an independent administrative body, he said.
Mr Farrell also submitted to Mr Justice Tony O'Connor that much of the evidence tendered on behalf of the State was "irrelevant and inadmissible".
While 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, he said.
The impression was given any declarations granted in favour of Mr Dwyer would result in “the sky falling in”. It also appeared from its evidence the State was saying the ECJ decisions on retained data were wrong, he said.
Brian Murray SC, for the State, said his side’s evidence was tendered to show how a general retention regime is “absolutely critical” for prevention, investigation and prosecution of serious crime.
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, he said.
The court was being asked to look back at historical events concerning how data generated by Dwyer’s phone was retained and used in October 2013 before the ECJ rulings were delivered, he said. The processes engaged under the 2011 Act, which allowed use of the data during Dwyer’s trial, were “perfectly valid” and “legitimate”.
At that time the data was retained, Ireland was required by the EU to have a general data retention regime and it would be “grotesque” for a court, some years later, to grant the declarations sought by Dwyer based on subsequent ECJ rulings.
EU law has “no role” when it comes to national security so how could it be wrong for Ireland to have a general data retention regime for the purpose of national security, he asked.
The case continues next week.