The investigation of crime in the State "will have to reinvent" itself in some ways in light of the Graham Dwyer ruling by the European Court of Justice (ECJ), but the investigatory environment had already begun to respond, Garda and other justice sources said.
Senior gardaí who spoke to The Irish Times said it was now beyond doubt, if any remained, that mobile phone providers could not retain the data generated by their users for up to two years. That timeframe would now be reduced, perhaps very significantly. This means that while gardaí were once able to trawl back two years through the mobile phone data of crime suspects, that trawl may be reduced to between one and three months of data.
Garda members and legal sources said the Supreme Court would now make a ruling on the Dwyer case, factoring in the ECJ ruling. New legislation would then be enacted by the Government, setting out how long mobile phone companies could retain data for and new procedures gardaí must follow to access that data.
The Court of Appeal will also hear Dwyer’s appeal and could overturn or uphold his conviction for the 2012 murder of Elaine O’Hara. A legal source said the Court of Appeal may decide that gardaí who investigated the O’Hara murder had trawled back through mobile phone data in good faith at the time. On that basis, it could uphold Dwyer’s conviction and, by extension, halt the efforts of any other criminals who attempted to appeal on the basis retained data was used in evidence against them.
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Working environment
For their part, many Garda members believe the Dwyer case will change their working environment rather than redefine, or seriously set back, the investigation of serious crime.
“We’ll still be able to go to the mobile phone companies and get data for suspects,” said one Garda source. “But if the companies are only allowed keep data for three months, then we won’t be able to go back any further than that. But if there was a murder on a Monday we’d still be able to get the data of the victim, suspects, for at least the last few weeks. Mobile phone data won’t be out of bounds for us.”
Another source experienced in the investigation of serious crime agreed, but with one significant caveat. He said when an investigation team examined the data for one suspect, especially in the context of organised crime, it very often led detectives to other suspects until a large web of co-conspirators emerged in the data.
“You might never use it in evidence, but it’s a roadmap,” said the source. “It shows you who knows who, how often they are speaking, where they hang out. And it often throws up people we’ve never heard of. The longer you can go back with data, the bigger the picture becomes. So that will be gone now, it looks like that anyway.”
Persons of interest
In anticipation of the ECJ ruling in the Dwyer case, which was expected, gardaí have already changed the way they do business. Under 2011 legislation gardaí were allowed to request mobile phone data for suspects and persons of interest from their mobile phone operators. However, following the case taken by Dwyer, parts of that legislation were ruled invalid by the High Court in 2018.
Since then, gardaí had begun applying to the district courts – effectively using traditional search warrant procedures – to access data rather than using the more direct route provided for in the 2011 Act. As a result, gardaí believe, the ability of criminals to use the legal issues flowing from the Dwyer case to challenge their own convictions has been reduced.
One source with very detailed knowledge of data retention said: “In other European countries they have already had this moment, their data retention practices have been struck down. And the investigation of serious crime hasn’t collapsed in these countries,” he said. “There will be stricter conditions and controls on both mobile phone providers and the Garda, but they’ll just have to learn to operate within those new controls.”