Report by former Chief Justice on 2011 Data Act supports Graham Dwyer claims, court hears

Remy Farrell SC for Dwyer told Mr Justice Tony O'Connor today that in a report published last year the retired Chief Justice said that the Communications (Retention of Data) Act 2011 amounts to mass surveillance of the entire population of the State and was contrary to EU legislation.

Counsel said while the contents of the report, commissioned in 2016 in the wake of allegations journalists records were wrongfully accessed by GSOC, are the opinion of a now retired judge they do tie into Dwyer's complaints about Ireland's indiscriminate data retention regime.

The complaints include that the 2011 Act does not provide for any independent person, such as a judge, to oversee such requests, to limit what is strictly necessary or ensure privacy rights are protected before the material is handed over.

It would appear the only persons who had oversight of the request in relation to his client was the Gardai themselves, counsel said.

Dwyer claims certain provisions of the 2011 Act breach his privacy rights under the European Charter, Irish Constitution and rights under the European Convention on Human Rights.

In 2014 the European Court of Justice found a 2006 EU directive concerning data retention to be invalid. Dwyer claimst the 2011 Act was introduced by the State to give effect to the 2006 directive, and that it also suffers from the same flaws identified by the ECJ.

Evidence gathered under the 2011 Act should not have been used against him in his trial, Dwyer claims.

Mr Farrell was speaking on the second day of Dwyer's challenge against the Garda Commissioner and the State aimed at having certain provisions of the law that allow data from mobile phones be used by prosecutors during his trial for the murder of Elaine O'Hara to be struck down.

They deny the claims and say he is not entitled to any of the declarations he seeks.

In 2015 Dwyer was sentenced to life imprisonment after the jury found him guilty of the childcare worker's murder.

He has challenged provisions of the 2011 Act, which allowed Gardai investigating her death obtain and use mobile phone records during his lengthy trial.

His appeal against his conviction remains pending before the Court of Appeal.

On the second day of the action Mr Justice O'Connor also heard evidence from Dwyer's solicitor Mr Jonathan Dunphy concerning his statement supporting his client's challenge.

Questioned by Sean Guerin SC for the respondents Mr Dunphy accepted there were strands other than the retention of mobile phone data that resulted in the Gardai arresting Dwyer in October 2013

Mr Dunphy accepted the criminal trial had been told that Dwyer had in interviews with Gardai following his client's arrest volunteered personal and private information about his family and professional life.

Mr Dunphy agreed evidence, including oral testimony and text messages removed from other phones about Dwyer's movements and location at certain times as well as the evidence obtained from retained data was used by the prosecution during the trial.

Mr Dunphy accepted neither he nor Dwyer had made a complaint under the provisions on the 2011 Act about the use of the retained data.

However in reply to Mr Farrell, Mr Dunphy accepted the complaints mechanism provided for in the 2011 Act was not relevant in regards to the assertion the provisions of the Act being challenged breaches Dwyer's rights.

The hearing continues.