EU data law is restricting criminal investigations, says oversight judge 

Mr Justice George Birmingham said: 'The reality is that there may be little that the Government or the Oireachtas can do about it, other than advocating for change at EU level, but the situation is, in my view, less than satisfactory.' File picture: Moya Nolan

EU law is largely preventing access to key phone communication evidence, potentially hampering garda investigations, Ireland’s new security oversight judge has said.

Criminal investigations would be “disadvantaged” in cases similar to the Graham Dwyer murder without such key phone evidence, according to George Birmingham.

Dwyer’s conviction for the 2012 murder of Elaine O’Hara partly depended on mobile phone data — the general retention of which was ruled “unlawful” by European courts in 2022.

Although Irish courts still ruled Dwyer’s conviction stood — in spite of the data evidence judged to be illegally gathered — new legislation deprived gardaí of the power to access retained communication data when investigating serious crime.

In his first report since being set up a year ago, the independent examiner of security legislation, George Birmingham, said this was “less than satisfactory”. His 2025 annual report also said:

• Phone interception laws are “seriously out of date” and need to be modernised to allow access to digital communications, including encrypted communications;
• Police and security services should have electronic scanning equipment for intercepting mobile phone traffic data;
• A review will be carried out shortly into the law on espionage, given Ireland’s legislation on the area is “more than 60 years old” and other countries have recently reviewed theirs;
• While dissident republicans remain a “real concern”, security threats have broadened;
• Islamist terrorism is a “significant cause of concern” for Ireland — either because of possible attacks here or attacks planned here, then carried out in another country;
• Extreme right-wing terrorism is also an issue for the State, as is single-issue terrorism and extreme left-wing terrorism;
• There is “unease” about the “activities of hostile state actors” and the potential threat of “lone wolves” — individuals acting on their own for terrorist or other reasons.

The Office of Independent Examiner was provided for in the Policing, Security and Community Safety Act 2024, enacted in April 2025.

The office is tasked with reviewing the operation and effectiveness of security legislation, examining the effectiveness and delivery of security services, and adjudicating on disputes between An Garda Síochána and oversight bodies.

Mr Birmingham’s report focuses on security legislation and includes the complicated legal situation around communication data.

Following a case taken by Dwyer — who claimed phone traffic and location data used in his prosecution was retained and accessed in breach of EU law — the Court of Justice of the EU ruled in 2022 that the blanket retention of this data, as provided for in 2011 Irish law, was “unlawful”. While this applied to serious crime investigations, it did not apply to national security.

Mr Birmingham said: “The striking feature of the legislation is the absence of a general obligation to retain data for the purpose of access in the course of investigations of serious crime. The reality is that there may be little that the Government or the Oireachtas can do about it, other than advocating for change at EU level, but the situation is, in my view, less than satisfactory.”

He said that in the course of his judgement on Dwyer, dissenting from colleagues in their referral to the EU court, Mr Justice Peter Charleton pointed to the importance of metadata evidence in trials arising from Veronica Guerin’s murder and the Omagh bombing.

Mr Birmingham said: “If one imagines a situation emerging in the future which mirrored what occurred in the Graham Dwyer case, with the fact that a serious crime had been perpetrated only becoming known long after the crime had actually been committed, one can see immediately how disadvantaged criminal investigators would be.”

• Cormac O'Keefe is Security Correspondent.