Graham Dwyer’s decision will force the criminal investigation to ‘reinvent itself’
The state’s crime investigation “will have to reinvent itself” in some ways in light of the European Court of Justice’s (ECJ) Graham Dwyer ruling, but the investigative environment had already begun to respond, said Garda and other court sources. .
Gardaí senior who spoke to The Irish Times said it was now beyond doubt, if any, that mobile providers would not be able to retain data generated by their users for up to two years . This delay would now be reduced, perhaps very significantly. This means that while the gardaí were once able to trace back two years through data from the cellphones of crime suspects, this trawl can be reduced to between one and three months of data.
Garda members and legal sources said the Supreme Court would now rule on the Dwyer case, taking into account the ECJ ruling. New legislation would then be enacted by the government setting out how long mobile phone companies could retain data and new procedures the gardaí must follow to access that data.
The Court of Appeals 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 Appeals could rule that Gardaí, who investigated on the O’Hara murder, had in good faith recovered the cellphone data at the time. On that basis, he could uphold Dwyer’s conviction and, by extension, halt the efforts of any other criminals who attempted to appeal on the grounds that the retained data had been used as evidence against them.
For their part, many Garda members believe the Dwyer case will change their working environment rather than redefine or seriously delay the investigation of serious crimes.
“We can always go to the mobile phone companies and get data on the suspects,” a Garda source said. “But if companies are only allowed to keep data for three months, we can’t go back any further than that. But if there was a murder on a Monday, we would still be able to get victim data, suspect data, for at least the last few weeks. Mobile phone data will not be out of reach for us.
Another source experienced in investigating serious crimes agreed, but with an important caveat. He said that when an investigative team looked at a suspect’s data, particularly in the context of organized crime, it very often led detectives to other suspects until a large network of co -conspirators emerge in the data.
“You may never use it as evidence, but it’s a roadmap,” the source said. “It shows you who knows who, how often they talk, where they hang out. And it often throws up people we’ve never heard of. The more data you can backtrack, the larger the image becomes. So it will be gone now, it looks like it anyway.
Persons of interest
In anticipation of the long-awaited ECJ ruling in the Dwyer case, the 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 Dwyer case, parts of this legislation were declared invalid by the High Court in 2018.
Since then, the gardaí had begun going to district courts – effectively using traditional search warrant procedures – to access the data rather than using the more direct route provided by the 2011 law. As a result, according to Gardaí, the ability of criminals to use legal issues arising from the Dwyer case to challenge their own convictions has been reduced.
A source with very detailed knowledge of data retention said: “In other European countries they already had this moment, their data retention practices were rolled back. And the investigation of serious crimes has not collapsed in these countries,” he said. “There will be stricter conditions and controls on mobile phone providers and the Garda, but they will just have to learn to operate within these new controls.”