Phone data use ‘did not breach’ Graham Dwyer’s privacy rights

Graham Dwyer's constitutional right to privacy was not breached when retained data generated by his mobile phone was accessed by gardaí investigating the murder of Elaine O'Hara, the High Court has heard.

Seán Guerin SC, for the State and Garda Commissioner, said his side was not arguing Dwyer's privacy had not been in some way interfered with when his phone data was accessed.

However, he argued that right, when balanced against other competing rights, was outweighed by the right of gardaí investigating Ms O’Hara’s death to access the data.

Under the Communications (Retention of Data) Act 2011, data from Dwyer’s personal mobile phone was retained and accessed by gardaí investigating Ms O’Hara’s death. Data generated by his phone was later put before the jury by the prosecution during his 2015 trial at the Central Criminal Court for Ms O’Hara’s murder.

Mr Guerin was making submissions before Mr Justice Tony O’Connor opposing Dwyer’s proceedings aimed at having provisions of the 2011 Act struck down. He claims the provisions breach his privacy rights under the Constitution, European Convention on Human Rights and EU Charter.

Mr Guerin said the right of gardaí investigating Ms O’Hara’s death to access retained data generated by Dwyer’s phone, which placed him at certain places at certain times, came ahead of any right to privacy Dwyer enjoys under the Constitution.

Gardaí investigating Ms O’Hara’s death had established Dwyer had an extra marital affair with her which, he said, was none of their business. However, when Ms O’Hara went missing, the State had a clear right to look into the relationship between her and Dwyer and seek data retained by the telecommunications provider in relation to his phone.

In all the circumstances, it could not be said the retention of the data and access of such data by gardaí breached Dwyer’s right to privacy, counsel said.

The court has heard the 2011 Act was introduced to give effect to a 2006 EU directive concerning the retention and use of data.

The European Court of Justice (ECJ) found in 2014 the directive was invalid and that position was further strengthened in subsequent rulings by that court in 2016. Dwyer claims the 2011 Act suffers from the same flaws identified by the ECJ.

The hearing continues on Friday.