The Government has approved the drafting of urgent new legislation to remedy breaches of European law identified in convicted murderer Graham Dwyer’s case against the State.
Minister for Justice Helen McEntee received approval to draft legislation to ensure that the gardaí have adequate access to electronic data in future cases. She intends to seek approval for the general scheme off the Bill in the coming weeks and wants the legislation to become law by the summer.
The European Court of Justice (ECJ) in April ruled in favour of Dwyer, who had challenged the prosecution’s use of mobile phone data during his murder trial. The ECJ ruled that the general and indiscriminate manner in which the State accessed and retained the metadata from Dwyer’s mobile phone in the case breached European Union law.
The proposed laws cannot be applied retrospectively and will not have any impact on the appeal being taken by Dwyer against his conviction, which could be heard before the end of the year.
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Ms McEntee said: “While I do not want to comment on the specifics of cases which are before the courts, I have been clear that I do not want a situation where An Garda Síochána have their hands tied behind their backs.”
The prosecution had introduced data evidence to show Dwyer’s location and movements during the 2015 case, in which he was convicted of the 2012 murder of Elaine O’Hara.
The two major revisions include amendments to the current rules on general and indiscriminate retention of data from telephone and internet communications for national security purposes.
The second change will be that a new type of access system will be introduced. This will include two new types of order to secure all forms of electronic date in specific criminal investigations.
The first order will be a “preservation order” which require the preservation of specified electronic data in connection with specific persons, locations or electronic data banks such as mobile phones. That order will not in itself require the granting of access to data. The second order, “the production order” will allow the gathering and submission of specified data, in a person’s possession or control, by gardaí.
Rulings of the ECJ have acknowledged that such measures can be deployed.
“Access to telecommunications data has become ever more important for the detection, investigation and prosecution of crime,” said Ms McEntee after the Cabinet meeting.
“The gardaí require access to data to do their jobs and keep us safe. There are occasions when fighting crime and national security must override the absolute right to privacy.”
