Curtailing the ability of police to use mobile phone data to combat serious crime would undermine public faith in justice and in European Union law, Ireland’s attorney general has argued in the Graham Dwyer case.
The EU Court of Justice is hearing submissions from 14 EU countries today in the State's appeal over a challenge regarding Ireland's phone data retention law.
The successful challenge was made by Dwyer, who in 2015 was convicted for the murder of Elaine O'Hara with the help of mobile phone records.
According to The Irish Times, on Monday Dwyer’s legal team told the Luxembourg court that Irish law allowing for data to be retained for two years was “extreme”.
Remy Farrell SC told the court that the principle of proportionality must apply to data retention, and that in Dwyer’s case mobile phones were effectively used as “personal tracking devices”.
'Lived above suspicion'
However, Ireland’s attorney general Paul Gallagher said the retention and use of such mobile phone data had a “critical role” in fighting serious crime and that its use for such purposes could not be considered disproportionate.
Mr Gallagher said Dwyer was a “professional family man... who lived above suspicion” prior to his detection.
The traffic and location data that gardaí recovered through the discovery of two mobile phones made possible a “breakthrough” in the investigation and the identification of Mr Dwyer, Mr Gallagher told the court.
The use of “telecommunications to groom and prepare a victim” is a notable feature of crimes perpetrated on women, children and vulnerable people, he added. Curtailing the ability of law enforcement authorities to retain and use such data would restrict their ability to prevent and prosecute serious crime “to the point of impossibility”.
According to The Irish Times, the European courts decision, which is expected later this year, could have implications on Dwyer's separate appeal against his conviction, but also on EU member states and their data retention systems targetting serious crime.
Dwyer's claim that Section 6 of the Telecommunications (Retention of Data) Act, 2011 breached EU law was previously upheld by the High Court in Ireland, before a State appeal to the Supreme Court.
As the appeal relates to EU law, the Irish Supreme Court has referred core issues of the case to the EU Court of Justice before it makes its final decision.
Attorney General Paul Gallagher with Seán Guerin SC is presenting the State's arguments, while Remy Farrell SC is making submissions on behalf of Dwyer.