Gardaí expect “significant difficulties” for investigating serious crime under the terms of emergency legislation to deal with the fallout from Graham Dwyer’s successful court appeal.
Assistant Commissioner Justin Kelly made the remarks at the Oireachtas Justice Committee which is conducting an expedited pre-legislative scrutiny process for the Communications (Retention of Data) (Amendment) Bill 2022.
Ireland’s data retention laws need to be urgently updated in the wake of the Court of Justice of the European Union (CJEU) ruling in April on Garda access to mobile phone data and the Government is seeking to have the emergency legislation passed by the Oireachtas before summer recess.
There was much criticism of the rushed process at the committee which heard that a Data Protection Impact Assessment on the proposed legislation has not been carried out.
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Dwyer was convicted in 2015 of murdering Elaine O’Hara. His conviction relied heavily on mobile phone data but the European Court of Justice ruled in April that Irish rules on the retention and access by gardaí of mobile data were in breach of European law.
An appeal by Dwyer against his conviction is likely to be heard in the autumn.
Minister for Justice Helen McEntee has said the Government will move to ensure gardaí do not have “their hands tied behind their backs” and the emergency legislation will provide for access to mobile data for gardaí where it is required for certain kinds of investigations.
However, it will present difficulties for murder cases and other serious crimes that don’t involve a national security element.
The Garda representative Mr Kelly told the committee that gardaí welcome aspects of the Bill that allow them to seek data in cases of national security, tiger kidnappings, child abductions and in child pornography investigations.
He also welcomed the need for judicial authorisations in such cases as this will provide reassurance to the public on the independence of the process and bolster the right to privacy.
However, he said: “Unfortunately, from the perspective of investigating serious crime, significant difficulties are foreseen, we are however cognisant that the Bill has to conform to the jurisprudence of the CJEU.”
Mr Kelly said that while the draft legislation would allow gardaí to use preservation and production orders to secure evidence, this process will be forward-looking and not retrospective.
“This will cause significant difficulties in criminal investigations, which usually commence post incident.”
He said the Bill will be of benefit where gardaí are aware in advance of the communications methods being used by Organised Crime Groups but he added: “unfortunately this is rarely the case”.
Committee chairman James Lawless asked if it was fair to say it impairs the ability of gardaí to investigate crime and Mr Kelly replied “absolutely”.
Sinn Féin TD Martin Kenny highlighted the case of convicted murderer Joe O’Reilly who killed his wife Rachel Callaly which saw the use of mobile phone data as part of the prosecution.
He asked whether gardaí would feel hampered if a similar case arises after the legislation is brought in.
Mr Kelly said he did not want to discuss the case but said: “if I was to say a general homicide case ... we couldn’t go backwards and retrieve that data unless there was a national security element to it.”
He said phone analysis has been one element of major investigations but gardaí have other elements open to them.
“It will very much depend on the individual case, how important an element that the telephone analysis is.”
Earlier law lecturer Dr TJ McIntyre of Digital Rights Ireland told the committee that he believes the legislation is being “rushed out with manufactured urgency in an attempt to sandbag any proper democratic scrutiny.”
He also argued that “the extent that the Data Protection Commission has not been consulted in relation to this, this is itself a distinct breach of European Union law which requires that there be prior consultation with the DPC”.
A representative of the DPC Dale Sutherland said his office had been given the General Scheme of the Bill just eight days ago and raised a number of concerns with it.
He said: “In light of the high risks to the rights and freedoms of data subjects inherent in the processing envisaged in the General Scheme, the DPC is of the view that the Department should have and should now conduct a Data Protection Impact Assessment”.
Dublin South Central TD Patrick Costello raised concern at the potential for “legal frailty” with the emergency legislation and if it is not compliant with the requirement for consultation with the DPC that convictions or investigations could be put at risk.
Labour TD Brendan Howlin asked Dan Kelleher, a principle officer at the Department of Justice, if he thinks the eight days the DPC has had to consider the draft Bill was adequate.
Mr Kelleher replied: “In terms of the consultation with the DPC. I will answer your straight question with a straight answer. It is not adequate and I think it would be invidious of me to argue otherwise given the time constraints.”
He also confirmed that no formal, written data protection impact assessment had been carried out.
Mr Howlin asked if it was a legal requirement to do that and Mr Kelleher said he would have to check if it was mandatory.
He said the privacy rights prescribed in the CJEU ruling are incorporated in the Bill.
The Committee was told that more comprehensive legislation in the area is being developed.
Mr Howlin asked Mr Kelleher if it would be appropriate given the concerns raised that the emergency legislation should have a sunset clause which would kick-in when the overarching legislation is enacted.
Mr Kelleher said his opinions on the matter are not as important as the minister or the Government’s said he would bring the suggestion back to the Department.
At one point Independent TD Thomas Pringle told the committee that he had heard the Government was closing the deadline for amendments to be submitted on Thursday morning.
He said of the rushed process: “This is a fiasco that has been foisted on us by the Department. I’m really seriously wondering at the point in even asking any questions in relation to this”.
The meeting was suspended while Mr Lawless checked the situation.
He later said he was told there would be a “reasonable period” — perhaps 24 hours — allowed for amendments to be submitted.
Mr Lawless said the intention is for the committee to produce and expedited report on Thursday evening and the legislation could be published later that night or on Friday.
