Lawyer Graham Dwyer claims that phones are being used as “personal tracking devices” at the European Court of Justice

Lawyer Graham Dwyer claims that phones are being used as “personal tracking devices” at the European Court of Justice

Barrister Remy Farrell SC told the hearing at the European Court of Justice in Luxembourg that the principle of proportionality must apply to data retention, and that the Irish law in place at the time which allowed for records to be stored for two years was “extreme”.

A legal team for convicted murderer Graham Dwyer has accused gardaí of using phones as “personal tracking devices” in their investigation of the murder of childcare worker Elaine O’Hara in 2012.

“In short, the purpose of the domestic proceedings is to establish that some of the evidence used in this trial was obtained in breach of his charter rights,” Mr Farrell told the court.

He described Irish law as providing “the most minimal protection imaginable”, and said that the price movements of the owner of a mobile phone could be revealed “at the press of a button”.

The analysis of phone metadata, showing the times, frequency and phone numbers of who was contacted, could be “more invasive of one’s privacy” than looking at the content of messages, he argued, as it could be used to infer relationships.

The European court has previously upheld a more restrictive interpretation of how law enforcement authorities can retain and access mobile phone data, which precludes police from retaining the data of someone with no reason to be a suspect in all but exceptional cases.

On Monday, Ireland’s Attorney General Paul Gallagher led arguments by a group of member states who pushed back strongly against this, arguing that it would severely hamper the ability of police to fight crime.

Some raised concerns about what time limitations on the retention of data would mean for victims who take time to report an offence, for long-running offences such as in organised crime, and described the current rules as requiring police to have an idea of who their suspect is in advance.

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