September 28, 2022

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Legal sources caution against reading too much into the first ruling here concerning the impact of a European court mobile phone metadata judgment in favour of convicted murderer Graham Dwyer on the admissibility of such evidence in a criminal trial.

The ruling by Mr Justice Tony Hunt during the trial of Wayne Cooney was made before the expected coming into law next week of a Bill aimed at addressing some impacts of the decision of the court of Justice of the EU upholding Dwyer’s challenge to a 2011 Irish law which permitted the general and indiscriminate retention of phone metadata for two years without appropriate safeguards.

The CJEU judgment led last month to the State conceding its Supreme Court appeal over the High Court’s 2018 declaration that the 2011 law breaches EU data privacy law.

Representatives of some telecommunications companies met Department of Justice officials and gardaí on Friday to discuss a number of difficulties they face in relation to meeting certain requirements of the new data retention Bill providing for a more targeted gathering of data.

Data privacy campaigners and some politicians have voiced concerns the Bill is being rushed through without sufficient scrutiny following the decision of the Court of Justice of the EU last April in favour of Dwyer.

Despite the concerns, there is a general acceptance the Bill will pass into law next Thursday for reasons including the Minister for Justice’s concern to ensure that gardaí have adequate access to electronic data in future cases.

The intention is to replace the Bill at some later stage with a more comprehensive data retention and governance Bill. The new laws will be prospective and will not impact on Dwyer’s separate appeal, yet to be heard, against his 2015 conviction for the murder of childcare worker Elaine O’Hara in 2012.

In the Cooney trial Mr Justice Hunt’s ruling that gardaí were entitled to access the phone records of Cooney (31), with an address at Glenshane Drive, Tallaght, signals such retained evidence may be admissible in certain cases.

In balancing the rights involved, the judge 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”.

Rights under European and Irish law should be considered in “precisely” the same way and a European law right does not become “a clove of garlic guaranteed to ward off all domestic vampires”, he said.

He described the CJEU’s approach as exhibiting “a strange and unusual set of priorities”.

While accepting the CJEU ruling meant the retention of Cooney’s data breached his privacy rights, the violation of that right was not “deliberate and conscious” in light of the situation in 2019 when it was still a “matter of considerable contention” as to whether the retention of mobile phone data was permitted by EU law, the judge said.

The ruling was made after submissions from both sides were heard during the absence of the jury in the trial concerning the murder of Mr Davis (22) in Darndale, Dublin, on May 22nd 2019.

While the prosecution may seek to rely on it in other cases where phone evidence is an issue, sources believe it has limited value in terms of precedent.

The admissibility of phone evidence in other cases will depend on the facts of each individual case and the ruling also does not have the same status as a decision of a High Court judge made in judicial review proceedings or of an appeal court decision.

Cooney’s counsel Giollaíosa Ó Lideadha SC has said his client will appeal the conviction. The grounds of appeal are likely to include arguments the trial judge erred in permitting the admission of CCTV and mobile phone evidence and in how he charged the jury. Counsel strongly objected to the judge describing arguments against the admissibility of CCTV evidence as “spurious”, saying those relied on several authorities of the European and Irish courts.

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