MINISTER FOR JUSTICE Helen McEntee has signed an order to bring new legislation on data retention into effect.
The new law will give An Garda Síochána new permissions to retain specified data for a longer period of time if a judge rule that it’s in the interests of national security.
The amendment to the Communications (Retention of Data) Act 2022, announced by the Minister last year, will introduce ‘Preservation Orders’ for Gardaí and will act as a “quick freeze” on data, according to a press release from the Department.
The amendment was drafted in response to a judgement made by the Court of Justice of the EU (CJEU) on the case of convicted murderer Graham Dwyer, who argued his data was misused by Gardaí to convict him of the 2012 murder of Elaine O’Hara.
The European court ruled in favour of Dwyer and said that EU law did not support the holding of data indiscriminately for the purpose of combating serious crime.
However, the CJEU said that it was up to the Irish judicial system to “determine whether any mobile phone data gathered in respect of any criminal investigation should be admissible on a case by case basis”.
Dwyer’s solicitor argued in the Court of Appeal in March of this year that the CJEU ruled the retention of mobile phone data is not allowed and requested the conviction be overturned.
However Dwyer’s appeal was dismissed and the President of the Court of Appeal Justice George Birmingham said the court was “satisfied” that the admission of limited data into evidence “could not give rise to a miscarriage of justice”.
The Justice Minister said: “The commencement of this Act will bring legal certainty for communications service providers and state agencies on what obligations apply to the retention of communications data which is vital for law enforcement and national security purposes.”
The act will allow for the indiscriminate and general retention of data on the basis that the retention is for national security and approved by a judge.
Under national security grounds, Gardaí will be permitted to retain traffic and location data for 12 months.
“As I have said before An Garda Síochána and our other agencies must be fully equipped with strong laws and modern technology to do their job,” McEntee said.
We cannot have an analogue police service in a digital age.
Gardaí retrieved a phone from Vartry Reservoir in Co Wicklow in 2015 and were able to determine the mobile was used by Dwyer to contact the victim, texting her to “go down to the show and wait” on the day she was last seen in 2012.
Dwyer’s solicitors appealed that the tactics Gardaí used to gather evidence in the case was unconstitutional and in breach of the EU’s data retention laws.
The Court Of Appeals last month ruled that Dwyer must serve his life sentence and the State said that serious crime should be treated as a national security threat, a claim which the CJEU rejected.
The new amendment will allow all branches of the Gardaí, Defence Forces and Revenue Commissioners to use preservation orders.
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