Senior Garda: It would be impossible to investigate serious crime without access to data

Detective Chief Supt Anthony Howard

By Ann O'Loughlin

A senior Garda has told the High Court it would be "virtually impossible" to investigate many serious crimes committed in the state without the use of retained communication data.

Detective Chief Supt Anthony Howard who heads the Garda Special Detective Unit, which combats organised crime and terrorism said the use of retained data is important because many criminals operate "under the radar".

Mr Howard was giving evidence before Mr Justice Tony O'Connor on behalf of the State and the Garda Commissioner on what was the eight day of an action brought by convicted killer Graham Dwyer, aimed at having provisions of Ireland's data retention laws struck down.

In reply to counsel for the state Sean Guerin SC, Chief Supt Howard said the use of retained data had played a very important role in the investigations of many serious crimes such as murder and tiger kidnappings, committed in Ireland.

He cited examples where Gardai were able to access information generated by mobile phones in criminal investigations.

He said In one case retained data was used to disprove an alibi claim made by a suspect in a homicide, and had provided evidence about the location of certain persons at the time when offences had occurred.

While he was not involved in the investigation of Elaine O'Hara's murder he said retained data was used in another case to identify a suspect who had previously never come to the attention of the Gardai.

He said in 2017 approximately 20 % of requests for retained data related to murder investigations.

He also told the court there had been a surge in the number of requests made by the Gardai in 2017 because of several cold case reviews and following the shooting at the Regency Hotel and subsequent feud between the Kinahan and Hutch organised crime gangs.

Also giving evidence today retired Detective Chief Superintendent Mr Peter Kirwan, who was head of the force's Security and Intelligence Section, told the court the assessment of Garda requests for access for retained telecommunications data is "independent in practice."

Part of his role, until his retirement last year was to assess requests for retained telecommunications data before making a formal request to the service providers for the data.

Under cross examination from Remy Farrell SC for Dwyer Mr Kirwan said he had turned down requests by Gardai investigating crimes for retained data, including from officers conducting investigations ordered by the Garda Commissioner on several occasions.

The refusals were made because the requests did not meet the criteria required, he said.

Graham Dwyer

In his action Dwyer claims the 2011 Communications (Retention of Data) Act, which allowed Gardai obtain and use data generated by Dwyer's mobile phone during his 2015 trial for the murder of childcare worker Elaine O'Hara breached his privacy rights.

The material obtained under that Act should not have been used at his trial, he claims.

Dwyer argues the 2011 Act was introduced to give effect to the 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's claims the 2011 Act suffers from the same flaws identified by the ECJ.

In proceedings against the Garda Commissioner, and the State, Dwyer seeks various declarations that his privacy rights under the Irish Constitution, European Convention on Human Rights and the EU Charter have been breached.

Dwyer (45) denies killing Ms O'Hara, and his appeal against his conviction is pending before the Court of Appeal. Dwyer's application is opposed.

Evidence in the hearing has concluded and legal submissions from both sides, which are expected to take several days, will commence on Friday.

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