Security expert gives evidence about data in Graham Dwyer case

A leading expert in national security and counterterrorism has told the High Court that data retention regimes need to be broad in scope if they are to be effective in the detection and prevention of serious crime.

Prof Michael Clarke, an expert in defence studies at King's College, London, and a former director of the Royal United Services Institute think tank, said he believed that restricting data retention regimes would create "electronic spaces" of "unknowable extent" in which criminals and terrorists could operate more freely and with virtual impunity.

Retained data is used in 90 per cent of investigations into serious crimes in the UK and in 100 per cent of investigations into terrorism, he said.

Retained data has become particularly important across Europe in investigations into cybercrime and child sex offences, he also said.

Prof Clarke gave evidence as a witness for the State and Garda Commissioner on the sixth day of proceedings by convicted murderer Graham Dwyer aimed at securing the striking down of provisions of the 2011 Communications (Retention of Data) Act. Under the Act, gardaí obtained and used data generated by Dwyer's mobile phone during his 2015 trial for the murder of childcare worker Elaine O'Hara.

If he secures the relevant orders, it is expected those will be among the material Dwyer (45), who denies the murder of Ms O’Hara, will rely on in his appeal against conviction which has yet to be heard.

Data retention regimes

Prof Clarke was in court last week when he began his evidence before Mr Justice Tony O’Connor but, due to bad weather, he resumed his testimony on Tuesday via video link.

He told Seán Guerin SC, for the State, he did not believe any other form of data retention regimes, such as targeted regimes against certain persons or geographical areas, would be “operationally feasible” and considered those would be “of little practical help”.

Any jurisdiction that introduced some alternative to a general data retention scheme would be choosing to take some considerable degree of risk, he said.

Restrictions on general schemes would mean detection and evidence gathering could not be performed as effectively as they have done under the data retention regimes in Ireland and Britain, he said.

Cross-examined by Remy Farrell SC, for Dwyer, Prof Clarke said he “could not square” findings made by the European Court of Justice, and in a report by former Irish chief justice John Murray, that general and indiscriminate data retention regimes amounted to “mass surveillance”.

He said retention of large amount of data in itself does not amount to surveillance.

‘Privacy issues’

He accepted, when such data is accessed, that raised “privacy issues”.

The court has heard the 2011 Act was introduced to give effect to an 2006 EU directive concerning the retention and use of data. In 2014, the ECJ found the directive was invalid and that position was strengthened by subsequent rulings of that court in 2016.

Dwyer claims the 2011 Act suffers from the same flaws identified by the ECJ and is seeking declarations his privacy rights under the Constitution, European Convention on Human Rights and the EU Charter have been breached.

The hearing continues.