Data Retention Bill on Cabinet table, as Dwyer wins legal action

06 Dec 2018 / legislation Print

Data Retention Bill on table as Dwyer wins legal action

The current legal framework on accessing telecoms meta-data to combat crime needs to be modernised in the light of evolving jurisprudence, Justice minister Charlie Flanagan said this morning.

He said that the drafting of a new Data Retention Bill is at an advanced stage, and on the Government’s priority legislation list.

Convicted murderer Graham Dwyer (pictured above) won his legal action against the Garda Commissioner and the State over access to data from mobile phones.

Implications

The ruling could have implications for many other criminal cases and investigations.

“The High Court has, this morning, issued its judgment in the case taken by Graham Dwyer regarding the current provisions in the law on access to communications metadata,” the minister said.

Complex

“This is a very detailed and lengthy judgment, in what is a very complex and dynamic area of the law.  

“The court’s judgment will have to be considered very carefully in order to identify exactly what actions are necessary, and the advice of the attorney general will have to be taken in that regard,” the minister said.

The High Court found that the Irish legislation allowing data from mobile phones to be retained and accessed breaches EU law, and the European Convention on Human Rights.

Indiscriminate retention

It found that the general and indiscriminate retention of data had no prior review by a court or any independent authority.

Mr Justice Tony O'Connor said the CJEU has declared that, even when fighting serious crime, this indiscriminate regime of data retention cannot be justified.

Graham Dwyer is taking separate legal proceedings, appealing against his conviction for murder. Mobile-phone metadata played an important role in the prosecution’s evidence during the case, which concluded in March 2015. 

Criminal defence lawyer Dara Robinson (Sheehan and Partners, Dublin) is trenchant in his criticism of the State.

In offing for four years

“This has been in the offing for a very long time. The State has known about this for over four years and has done nothing about it.

"The Court of Justice of the EU, in 2014, invalidated the directive on which the Communications (Retention of Data) Act 2011 was based. 

"The State hasn’t taken any action in relation to this. 

“This was a civil case, but it is the clearest statement of the law that section 6 of the 2011 act will be declared invalid, which was what the Gardaí used to collect the data.

“I welcome this clear statement of the law by the Irish courts, in accordance with the law of CJEU,” Robinson says.

The implications for many other criminal cases remain to be seen but they are very real, he added.

“This judgment is very likely to be appealed,” he concluded, “and, consequently, the ramifications for other cases remain to be seen.” 

 

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