Gardaí and police from other jurisdictions are now effectively hampered in their probe of serious investigations and criminality following the Graham Dwyer ruling, according to a former Assistant Garda Commissioner.
In an interview on Today with Claire Byrne on RTÉ Radio One, Dr Pat Leahy said that mobile phone data has been “central” to Garda investigations over the last number of years.
“It is absolutely going to have an impact. There is no doubt whatsoever about that. The guards are investigating a murder and they are (now) unlikely to have access to this data which exists that can place a person at the scene. That can track their movements leading up to a crime and after a crime.
"And the criminals are actually using this technology to arrange crimes and to escape from crimes. It is inextricably linked to the crime itself but the data won’t be available to police now.
"We investigated about 18 murders a year when I was the Assistant Commissioner for Dublin. This type of information was central to every one of those investigations.
"The constraints that are being put in place now are not only going to affect police, it is going to affect the holders of the data. The service providers are equally in breach.”
'Privacy rights over other rights'
Dr Leahy said that he was not surprised at the ruling which was “well flagged.”
“When we look at how often the data has been used or accessed since 2018, there is a reduction from 13,500 approximately to just over 2,500 in 2021. So there has been a huge reduction in access to this kind of data which is inextricably linked to criminality.
"There [are] very few objects on the planet today that you can directly link to facilitating crime like you can with mobile phones. It is ubiquitous to normal life on the planet now, and what we are looking at this morning is we are putting privacy rights over other rights.
"So we are trying to find a balance here as a democracy in terms of where do we find the balance of rights here.”
Dr Leahy stressed that it is important to take victims into consideration.
“There is very little recourse to victims in any of this. Ultimately, they are the people affected by this. Families of victims are affected by this because we know this type of date is really important to investigations. And now it seems we aren’t going to be able to access it. And this is all across Europe. It is not Ireland by the way. Everybody will be affected by this.”
Question mark over convictions
Roisin Costello, Assistant Professor in the School of Law and Government at DCU, said that in practical terms there is a now a question mark over convictions like Graham Dwyer’s which rely on data.
“(Data) that was accessed under that 2011 Act. This case (Dwyer) will now come back to the Supreme Court. It will now be for the Supreme Court and the parallel criminal appeal to decide whether evidence which was used in the conviction of Dwyer was correctly admitted and considered as part of the conviction and whether the conviction could or couldn’t be overturned.”
Meanwhile, Liam Herrick of the Irish Council for Civil Liberties said the issue here is that the Irish State has been on notice since 2014 that the law under which the gardaí were operating did not have a sound legal basis.
“The Government itself acknowledged this in bringing forward legislation to the Oireachtas in 2017 that the law was inadequate here. That law has never been enacted so we have had a failure going back at least eight years to put our house in order and put in place the proper legal regime.
"What the court is really saying today is that if you have an adequate regime there is a wide range of things that you can do, including when the investigation starts, that you have broad access to data. For example it is saying for pre-paid phones you can get access to who buys them.
"There is a lot of things in this judgement today that gives powers to criminal justice agencies.”