State yet to say if it will appeal landmark Dwyer ruling on data retention law

Earlier this month, Mr Justice Tony O’Connor found that convicted murderer Graham Dwyer was entitled to certain limited declarations concerning provisions of Ireland’s data retention laws.

The judge found that sections of Ireland’s retention laws concerning information generated by telephones contravene both EU law and findings of the European Court of Human Rights. He said Ireland’s data retention laws provide for an indiscriminate retention regime.

As well as being an important ruling in respect to Dwyer’s appeal over his conviction for the murder of childcare worker Elaine O’Hara, the State had argued the action also had major implications in relation to the authorities’ ability to retain, access and use information generated by mobile phones in the investigation of serious criminal activities.

The case was briefly mentioned before the High Court this morning when Mr Justice O’Connor was told the State wishes to make submissions on the court proposed final orders and declarations.

Brian Murray SC, appearing with Seán Guerin SC and David Fennelly BL for the State, said his client’s submissions will be in relation to sections of data retention laws and their compatibility with both EU law and the European Convention on Human Rights.

He said his side’s submissions, and any reply by Dwyer’s legal team, would take a few hours to hear. Discussions on this issue had already taken place with Dwyer’s lawyers.

The State is considering seeking a stay on the final orders in the event of an appeal, Mr Murray told the court.

He added that requests from authorities for access to retained telephone data were still being made and accepted in regards to issues where a person’s life is at risk, or in matters of state security, in accordance with the court’s judgment - but requests for telephone data in relation to the investigation, prevention and detection of crime are not being acceded to.

However, a request for access to retained data in one criminal investigation had been made to a District Court judge under different legislation to that which had been challenged by Dwyer, Mr Murray said.

Ronan Kennedy BL, for Dwyer, said his side would consider the State’s submissions and reply in due course.

Mr Justice O’Connor agreed to adjourn the matter to a date in January.

Aodhan O’Faolain, Ireland International News Agency Ltd.