The European ruling in Graham Dwyer’s case that the arbitrary retention of mobile phone data for use in criminal investigations violates the law does not automatically mean that such evidence should be excluded, a Supreme Court judge ruled.
Judge Tony Hunt found that Gardai investigating a shooting in Dublin had a right to access the killer’s phone records.
It is the first ruling in an Irish court since the ruling of the Court of Justice of the European Union (CJEU) in the Dwyer case.
Mr Justice Hunt said the right to privacy cannot extend to participation in criminal activity, is not absolute and must be balanced with the rights of others and the “proper requirements of the common good”.
He said a right under European law should be considered “exactly” in the same way as a right under Irish law and not “become a clove of garlic guaranteed to ward off all domestic vampires”.
Justice Hunt was asked to rule on the controversial use of cell phone data in the trial of Wayne Cooney, who was convicted Tuesday of the murder of 22-year-old Jordan Davis.
Earlier this year, the CJEU ruled in favor of murderer Graham Dwyer in its objection to a 2011 law requiring cell phone companies to keep data related to calling, texting and cell phone location data for two years.
Gardai who investigate serious crimes have been given access to that data to discover who suspected criminals were communicating with and to find out the general location of phones at relevant times. The evidence collected has been used to identify and convict numerous high-profile criminals.
Mr Justice Hunt’s ruling is not binding on other judges, but it is the first indication of how Irish courts might interpret the European court’s ruling.
Mr Justice Hunt said it would not be appropriate for him to comment on the European court’s approach, “except to say it presents a strange and unusual set of priorities.”
He also said there is no evidence to support the court’s finding that mobile phone data “would potentially reveal a significant portion of the individual’s private life,” a position he said “is not widely accepted outside of the Court’s membership of the Justice.”
After concluding that the infringement of Cooney’s privacy rights under European law does not outweigh an infringement of privacy rights under the Irish Constitution, Mr Justice Hunt said it is clear that the right to privacy is not absolute and that a breach is not automatic. means that evidence must be excluded.
He added: “Any right to privacy that Mr Cooney has enjoyed on this data must give way… victims of serious crime in such cases.”
However, Mr Justice Hunt accepted that as a result of the CJEU ruling, the retention of Cooney’s data was an infringement of Cooney’s privacy rights. But the violation of that right was not “intentional and conscious given the circumstances in 2019,” he added.
When Gardai got access to Cooney’s mobile phone data in 2019, the law was in flux, the judge said, and it was still a “matter of considerable contention” whether the retention of mobile phone data was allowed by EU law.
According to him, the evidence collected in 2019 will not become inadmissible because the European court ruled in 2022 that the retention of data is an infringement of citizens’ rights.
He rejected arguments that since 2019 it was inevitable that the CJEU would decide as it did, pointing out that “many reputable institutions and bodies believed that the data privacy rights in question should give way to the public interest in the investigation of serious crimes.” .”
He further pointed to the number of European Union member states urging the CJEU to allow police services access to mobile phone data.
Mr Justice Hunt said the European court’s ruling “is irrelevant to the 2019 moods I have to consider in this case. Unsurprisingly, An Garda Siochana has deployed all legitimate responses amid a complex investigation into a very serious crime. convinced that there was 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 cell phone evidence involving a drug dealer who allegedly wanted Mr. Davis killed.
The judge said: “I would go so far as to say that the invasion that the owner of this data has undergone is therefore relatively trivial when viewed in light of the violation of the various rights of Jordan Davis, his family and the rest of society as a result of his murder.”
The real danger to liberty, the judge said, would lie in Gardai’s failure or refusal to investigate organized murders or use legitimate means to obtain relevant evidence.
Wayne Cooney, 31, whose address is Glenshane Drive in Tallaght, was convicted earlier this week after a trial for the murder of Jordan Davis, 22, on an avenue adjacent to Our Lady of Immaculate National School in Dublin’s Darndale on May 22. 2019.
He was also found guilty of possessing a 9mm semi-automatic pistol and ammunition in circumstances which lead to the reasonable conclusion that he did not possess them for lawful purposes on the same date and location.
In his verdict, handed down before Cooney’s jury trial, Mr Justice Hunt said that gardai had not been involved in a “deliberate disregard” of constitutional rights after the Supreme Court ruled that gardai could not use the Communications (Retention of Data) Act 2011 to gain access. to get to cell phones. phone data. He said Gardai, who had received “high-level legal advice”, used search warrants to access the same information.
The use of injunctions was “impeccable” in the circumstances and “fully consistent with the requirements of the Court of Justice”.
Justice Hunt said the objection to the use of cell phone data was an “alleged infringement of the accused’s privacy rights.”
He said the European Court ruling forces him to find that the use of mobile phone data was lawful under the 2011 law and at the same time illegal because parts of the law violated the rights conferred by the Charter of Fundamental Rights of the European Union. the European Union.
He said he is obliged to respect the European Court’s ruling that the data has been unlawfully stored. However, he noted that the detention under Irish law was “fully lawful” as it was a requirement of the 2011 Act.
He said the ruling in Dwyer or any other European case does not “force an automatic conclusion” that the evidence should be excluded.
EU law requires the accused person to be given the opportunity to assert their rights and Mr Justice Hunt said in Cooney’s case this was done through a “full, comprehensive and publicly funded opportunity to have the disputed rights arising from the data.”
He said it is “unobtrusive and established” that the right to privacy cannot extend to participation in criminal activity. The right to privacy, he said, is not absolute and must be weighed against the rights of others and the “proper requirements of the common good”. Such rights can only be guaranteed in an ordered society and exist as “part of the spectrum of rights and duties that make up the type of society enshrined in the preamble to the Constitution.”
There is, he said, no basis in national or European law to regard the right to privacy in the European Union’s legal code as absolute. European rights do not trump all other rights and considerations, he said.
In Cooney’s case, the cell phone data related to an unregistered cell phone and was “strictly limited in time and quantity”.
By itself, the information would say nothing about a person’s private life, he said, “without the addition of a tremendous amount of painstaking detective work and other information.
The evidence presented simply does not address the evils of mass surveillance equivalence identified by the Court of Justice 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 telephone companies could be guilty of a “deliberate and knowing violation of the European Union’s privacy rights by enforcing and enforcing the 2011 law.” .. pending a final judgment from the Court of Justice.” There was no “legal craziness,” he said, and the state has not begun “deliberately and knowingly violating individual rights.”
He added: “It is very different from a situation where police officers deliberately decide to enter a residence without a warrant or arrest and detain a person without any legal justification and use those opportunities to gather evidence. In their efforts to identify highly relevant and significant evidence in this investigation, I do not believe that the officials involved were obliged to guess at the possible outcome of a lawsuit before the Court of Justice.”