The European ruling in Graham Dwyer that the arbitrary storage of mobile phone data for use in criminal investigations constituted a breach of the law does not automatically mean that such evidence should be excluded, a High Court judge said.
r Judge Tony Hunt found that Gardai investigating a Dublin shooting were entitled to access the killer’s phone records.
It is the first ruling by an Irish court since the Court of Justice of the European Union (ECJ) ruled in the Dwyer case.
Mr Justice Hunt said the right to privacy cannot extend to engaging in criminal activity, is not absolute and must be balanced with the rights of others and the “reasonable requirements of the public interest”.
He said a right under European law should be considered “exactly” the same as a right under Irish law and not “a clove of garlic guaranteed to ward off all native vampires”.
Mr Justice Hunt has been asked to rule on the controversial use of cellphone data in the trial of Wayne Cooney, who was convicted of the murder of 22-year-old Jordan Davis on Tuesday.
Earlier this year, the CJEU ruled in favor of murderer Graham Dwyer in its challenge to a 2011 law that required cellphone companies to retain data about calls, text messages and cellphone location for two years.
Gardai, which investigates major crimes, accessed this data to find out who suspected criminals were communicating with and to find out the general location of phones at relevant times. The evidence gathered was used to identify and convict numerous high-profile criminals.
Mr Justice Hunt’s judgment is not binding on other judges, but it is the first indication of how Irish courts might interpret the European Court’s judgement.
Mr Justice Hunt said it would not be appropriate for him to comment on the European Court’s approach “other than to say that it presents an odd and unusual set of priorities”.
He also said there was no evidence to support the court’s finding that cellphone data “would potentially reveal a significant part of the data subject’s private life,” a view he said “is not widely held outside of the Court’s membership of justice.” “
After concluding that Cooney’s breach of data protection rights carried no more weight under European law than a breach of data protection rights under the Irish Constitution, Mr Hunt said it was common knowledge that the right to privacy is not absolute and an infringement does not automatically mean evidence must be excluded.
He added: “Any privacy right that Mr. Cooney may have enjoyed in relation to this data must … meet the urgent social need for full and effective investigation of serious crime and the weighty, serious and important rights of society and victims of serious crime in such cases.”
However, Mr Justice Hunt accepted that the retention of Cooney’s data as a result of the ECJ ruling constituted a breach of Cooney’s data protection rights. However, the violation of this right “was not intentional and conscious given the circumstances in 2019,” he added.
When Gardai accessed Cooney’s cell phone data in 2019, the law was in flux, the judge said, and it was still “significantly disputed” whether cell phone data retention was allowed under EU law.
Evidence collected in 2019 would not be inadmissible because the European Court of Justice found in 2022 that data retention violated civil rights.
He dismissed arguments that since 2019 it was inevitable that the ECJ would rule in this way, noting that “many respected institutions and bodies have taken the view that the data protection rights at issue should give way to the public interest in investigating serious crime”. .
He also noted the number of European Union member states that had asked the ECJ to continue allowing police forces to access cellphone data.
Mr Justice Hunt said the European Court of Justice ruling “is irrelevant to the 2019 states of mind that I have to consider in this case. As you might expect, An Garda Siochana employed all legitimate responses during a complex investigation into a very serious crime. I am satisfied that there has been no willful disregard for constitutional or other rights on their part.”
In a later part of the verdict, he dismissed objections to the use of cellphone evidence in relation to a drug dealer who allegedly wanted Mr Davis killed.
The judge said: “I would like to go so far as to say that the interference suffered by the owner of this data is therefore comparatively insignificant when compared to the interference with the various rights of Jordan Davis, his family and the rest.” of society that result from his assassination.”
The real threat to liberty, the judge said, would lie in a failure or refusal by Gardai to investigate organized killings or to use legitimate means to obtain relevant evidence.
Wayne Cooney, 31, whose address is Glenshane Drive in Tallaght, was convicted of the murder of Jordan Davis, 22, in an alleyway next to Our Lady of Immaculate National School in Darndale in Dublin earlier this week after a court hearing on May 22, 2019.
He was also found guilty of possessing a 9mm semi-automatic pistol and ammunition in circumstances leading to the reasonable conclusion that he did not have them on the same day and in the same place for lawful purposes.
In his ruling, delivered before Cooney’s jury trial, Judge Hunt said that Gardai had not committed “willful disregard” of constitutional rights after the Supreme Court indicated that Gardai did not use the Communications (Retention of Data) Act 2011 to access Mobile devices can use phone data. He said that after receiving “senior legal advice,” Gardai used search warrants to access the same information.
Their use of warrants under the circumstances is “unchallengeable,” the judge said, and is “fully consistent with the requirements of the Court.”
Mr Justice Hunt said the objection to the use of mobile phone data was an “alleged violation of the defendant’s privacy rights”.
He said the European Court’s ruling compels him to state that the use of mobile data is both lawful under the 2011 law and unlawful because parts of the law conflict with rights under the Charter of Fundamental Rights of the European Union.
He said he was obliged to respect the European Court’s ruling that said the data was unlawfully retained. However, he found that retention was “fully lawful” under Irish law as it was a requirement of the 2011 Act.
He said the verdict in Dwyer or any other European case does not force an “automatic conclusion” that the evidence should be excluded.
EU law requires the defendant to be given the opportunity to assert their rights and Mr Justice Hunt said that in the Cooney case this was done through a “full, comprehensive and publicly funded opportunity to establish the disputed rights which arising from the assert and assert data.”
He said it was “unremarkable and long-established” that the right to privacy could not extend to participation in criminal activity. The right to privacy is not absolute and must be balanced with the rights of others and the “reasonable requirements of the public interest”. Such rights can only be guaranteed in an orderly society and exist “as part of the spectrum of rights and duties which make up the type of society enshrined in the preamble to the constitution”.
There is no basis in domestic or European law to treat the right to privacy as absolute in the European Union legal code. European rights do not trump all other rights and considerations, he said.
In the Cooney case, the mobile phone data referred to an unregistered mobile phone and were “strictly limited in terms of time and amount”.
The information alone would not reveal anything about anyone’s private life, he said, “without the addition of a tremendous amount of painstaking detective work and other information.”
The evidence proposed simply does not address the nonsense of mass surveillance equivalency identified by the Court as the basis for Dwyer and other decisions,” he said.
He said there was no sense that Gardai or the Attorney General, the government or the phone companies could be found guilty of a “willful and knowing violation of the European Union’s data protection rights by maintaining and applying the 2011 Act…pending…pending a final decision of the.” Court.” There is no such thing as a “legal fool,” he said, and the state has not set about “deliberately and knowingly violating the rights of individuals.”
He added: “It’s very different from a situation where police officers deliberately decide to enter a home without a warrant or arrest and arrest a person without legal justification and continue to use those opportunities to gather evidence. In their efforts to collect highly relevant and substantial evidence in this investigation, I do not believe that the officials concerned were required to guess at the possible outcomes of litigation before the Court.
https://www.independent.ie/news/graham-dwyer-fallout-judge-makes-significant-ruling-on-mobile-data-41824994.html Graham Dwyer Fallout: Judge Makes Important Mobile Data Ruling