European Court to weigh up phone evidence use

Call records used in trial of those accused of falsely imprisoning Quinn Industrial Holdings director Kevin Lunney

An opinion published by an adviser to the Court of Justice of the EU has boosted the case taken by convicted murderer Graham Dwyer over the retention and accessing of his mobile phone data.

If the European Court endorses the advice by a Spanish advocate general, it could have serious implications for the investigation of serious crime across Europe.

It would also mean a High Court ruling that the State breached EU law in the way it retained and accessed Dwyer’s data would be upheld by the Supreme Court.

The outcome of the challenge is being closely watched by legal teams in a variety of cases that relied on evidence of mobile phone records - including those convicted in relation to the abduction and serious assault of businessman Kevin Lunney who have yet to be sentenced.

The opinion, published this morning, finds that existing European case law does not allow a general and indiscriminate retention of mobile phone metadata.

The opinion by the Advocate General reiterates that such retention is permitted only in the event of a threat to national security and not for the investigation of crime.

This is an advisory opinion. It is not binding on the court.

The court's final judgement however will be binding on all EU member states.

The outcome could have serious implications for the Gardaí and the Director of Public Prosecutions (DPP) in respect of murderer Graham Dwyer, who was convicted in 2015 of killing Elaine O'Hara in August 2012.

Metadata retained by service providers was used by gardaí in pinning Dwyer's movements, and to build a case against the Foxrock dwelling architect.

Gardaí accessed the mobile information under 2011 EU laws that were struck down three years later following a case taken in part by a privacy group, Digital Rights Ireland.

Dwyer's counsel argued the evidence should not have been admissible, and in 2018 successfully secured a High Court ruling acknowledging the legislation breached EU law.

Following the rulings gardaí can no longer access mobile phone data through the Communications (Retention of Data) Act 2011.

A similar argument was made by counsel defending those accused of falsely imprisoning Quinn Industrial Holdings director Kevin Lunney recently. Gardaí investigating Mr Lunney’s abduction and assault used search warrants to obtain call data records to help build their case.

Michael O’Higgins SC told the Special Criminal Court the mass retention of phone data was a serious breach of privacy rights

He added that the Government had done nothing to amend its position either.

“That has left another arm of the executive, law enforcement, breaking the law repeatedly, for years and years and years,” he contended.

Three men - a 40-year-old man who cannot be named by order of the court; Alan O’Brien (40), of Shelmalier Road, East Wall, Dublin; Darren Redmond (27), from Caledon Road, East Wall, Dublin, were found guilty and are all now awaiting sentencing.