Garda use of spy power down 80% as Graham Dwyer ruling due today

Graham Dwyer: Europe’s top court issues its judgment on the Graham Dwyer case this morning. Picture: Collins Courts

Garda use of spy powers has plummeted by 80% in the last three years, following a landmark High Court ruling that the laws could not be used in investigating serious crime.

It comes as Europe’s top court issues its judgment on the Graham Dwyer case this morning on the legality of these powers, after the Irish Supreme Court referred to issue to it.

Figures provided to the Irish Examiner show the extent to which use of the powers, specifically in relation to the investigation of serious crime, has collapsed after the 2018 High Court ruling.

Judicial oversight reports have highlighted the impact of this decision on the investigation of serious crime.

The spying powers are contained in the Communications (Data Retention) Act 2011. This allows certain agencies to request traffic data  such as call logs and phone locations  from service providers in three scenarios: investigation of serious crime; preservation of life and national security.

This evidence formed a key part in the 2015 conviction of Dwyer for the murder of Elaine O’Hara in 2012.

Following a case taken by Dwyer, the High Court ruled in December 2018 that the 2011 act provided for a “general and indiscriminate” system for retaining data and that this breached EU human rights.

The State appealed this judgment to the Supreme Court, which referred the legal issue to the European Court of Justice.

The ECJ’s legal advisor stated last November that indiscriminate retention of data was only permissible in cases of serious threats to national security.

Department of Justice figures show the extent to which use of these laws has collapsed:

• Total number of data requests dropped from 13,878 in 2018 to 2,869 in 2021 (-79%);

• Garda requests fell from 13,545 in 2018 to 2,628 in 2021 (-81%);

• Defence Forces’ request have reduced from 288 in 2018 to 241 in 2021 (-16%) 

The act also allows Revenue, GSOC and the Competition and Consumer Protection Commission to make requests, but Revenue and GSOC haven’t done so since 2018 and the CCPC has never used the powers.

A statement from the Department of Justice said: “Agencies are bound by the decision of the High Court in the Dwyer case in December 2018 with regard to the Communications (Retention of Data) Act 2011. As such, there were no requests made under the provision in Section 6(1)(a) of the 2011 Act for the investigation of serious crime."

It added: "Garda Síochána applications were granted for cases relating to the saving of human life (Section 6(1)(c)) with the rest being applications relating to threats to the Security of the State (Section 6(1)(b) (as were all of the Defence Forces applications).” 

It said while criminal investigations were multifaceted, access to telecommunications data has become “ever more important” for all authorities investigating crime and for safeguarding the security of the State.

The statement added that law enforcement can still access data in criminal investigations under court warrants, including Section 10 of the Criminal Justice [Miscellaneous Provisions] Act 1997 and Section 63 of the Criminal Justice [Mutual Assistance] Act 2008.

There are no figures available on the number of court warrants obtained under these provisions.

The department has been repeatedly criticised by civil rights groups and legal experts for failing to rectify the 2011 law following previous ECJ rulings, going as far back as 2014.

The department said the ECJ ruling, and the decision of the Supreme Court, will “bring clarity” to the law and inform department legislation.