The ruling of the Court of Justice of the European Union (CJEU) in Graham Dwyer’s case that the indiscriminate retention of mobile phone data for use in criminal investigations is a breach of law, does not automatically mean that such evidence should be excluded, a High Court judge has found.
In the first ruling in an Irish court since the CJEU’s decision, Mr Justice Tony Hunt found that gardaí investigating a Dublin murder were entitled to access the killer’s phone records.
Mr Justice Tony Hunt said the right to privacy cannot extend to participation in criminal activity, is not absolute and must be balanced with the rights of others and the “proper requirements of the common good”. He said a right under European law should be considered in “precisely” the same way that a right under Irish law would be considered and does not become “a clove of garlic guaranteed to ward off all domestic vampires.”
Mr Justice Hunt was asked to rule on the controversial use of mobile phone data in the trial of Wayne Cooney, who was convicted on Tuesday of murdering 22-year-old Jordan Davis.
Earlier this year the CJEU ruled in favour of murderer Graham Dwyer in his challenge to a 2011 law that required mobile phone companies to keep data relating to calls, texts and the location of mobile phones for two years. Gardaí investigating serious crimes have accessed that data to discover who suspected criminals were communicating with and to find out the general location of phones at relevant times. The evidence gleaned has been used to identify and convict numerous high-profile criminals.
Mr Justice Hunt’s ruling is not binding on other judges but it is the first indication of how Irish courts could interpret the European court’s ruling.
Mr Justice Hunt said it would not be appropriate for him to comment on the European court’s approach, “save to say it exhibits a strange and unusual set of priorities.” He also said that there is no evidence for the court’s finding that mobile phone data would “possibly reveal a significant amount of the private life of the person concerned,” a view which he said is “not universally held outside the membership of the Court of Justice.”
Having concluded that the breach of Cooney’s privacy right under European law has no more weight than a breach of privacy rights under the Irish Constitution, Mr Justice Hunt said it is well established that the right to privacy is not absolute and a breach does not automatically mean evidence must be excluded. He added: “Any privacy right that Mr Cooney may have enjoyed in this data must give way... to the pressing social necessity for the full and effective investigation of serious crime, and to the weighty, serious and important rights of society and the victims of serious crime in such cases.”
However, Mr Justice Hunt accepted that as a result of the CJEU ruling, the retention of Cooney’s data was a breach of Cooney’s privacy rights. But the violation of that right was not “deliberate and conscious having regard to the circumstances that pertained in 2019,” he added.
When gardaí accessed Cooney’s mobile phone records in 2019 the law was in a state of flux, the judge said, and it was still a “matter of considerable contention” as to whether the retention of mobile phone data was permitted by EU law. Evidence gathered in 2019, he said, does not become inadmissible because the European court found in 2022 that the retention of data is a breach of citizens’ rights. He rejected arguments that it was inevitable since 2019 that the CJEU would rule as it did and pointed out that “many reputable institutions and bodies believed the data privacy rights in question ought to yield to the public interest in the investigation of serious crimes.” He further pointed to the number of European Union member states that urged the CJEU to allow police forces to continue to access mobile phone data.
Mr Justice Hunt said that the European court’s ruling is “irrelevant to the 2019 states of mind that I must consider in this case. As would be expected, An Garda Síochána deployed all legitimate responses during a complex investigation into a very serious crime. I am satisfied that there was no deliberate disregard of constitutional or other rights on their part.”
In a later part of the judgment, he dismissed objections to the use of mobile phone evidence relating to a drug dealer who allegedly wanted Mr Davis to be killed. The judge said: “I would happily go so far as to say that the invasion suffered by the owner of this data is therefore comparatively trivial when viewed against the invasion of the various rights of Jordan Davis, his family and the rest of society arising from his murder.”
The real danger to freedom, the judge said, would lie in a failure or refusal by gardaí to investigate organised murders or to use legitimate means to gain relevant evidence.
Wayne Cooney (31), with an address at Glenshane Drive in Tallaght, was convicted earlier this week following a trial, of the murder of Jordan Davis (22) at a lane-way beside Our Lady of Immaculate National School in Darndale in Dublin on May 22 2019. He was also found guilty of possessing a 9mm semi-automatic pistol and ammunition in circumstances that give rise to the reasonable inference that he did not have them for lawful purposes on the same date and at the same location.