Monday, March 30, 2015

Two data retention cases pose questions for three Ministers for Justice

Two cases have now been brought in Ireland seeking to take advantage of the Digital Rights Ireland decision from the European Court of Justice in order to exclude evidence in criminal trials. First, a case stated in the prosecution of a detective garda alleged to have given false information to GSOC; second, a challenge brought by convicted murderer Graham Dwyer - commenced in January but made public only on his conviction last week.

Given how central internet and phone evidence is to many prosecutions, the only surprise is that it's taken this long for these challenges to be brought and no doubt more will come. Unfortunately it is possible that at least some convictions will be overturned as a result - and the blame for this will lie squarely with the Department of Justice and successive ministers.

Ministers Dermot Ahern, Alan Shatter and Frances Fitzgerald in particular have questions to answer.

Dermot Ahern knew in 2011 that data retention was on very shaky ground. By then data retention laws had been struck down in Bulgaria (2008), Romania (2009) and Germany (2010) - and the Irish challenge was pending before the High Court which had decided that the case raised "important constitutional questions". At this point the Irish law should have been reformed to provide for data preservation and include adequate safeguards identified by those cases, such as a requirement for a judge to approve access to data. Instead the law adopted in 2011 was equally flawed.

Alan Shatter and Frances Fitzgerald are equally if not more at fault. It was clear from the Advocate General's opinion in December 2013 that the Data Retention Directive would be struck down. But instead of replacing the 2011 law implementing the Directive both ministers adopted the ostrich position. There has been nothing but radio silence from the Minister for Justice since the Data Retention Directive was invalidated just under a year ago. It may be that she hopes by ignoring the problem it will go away. But by doing so she is only ensuring that many more prosecutions and convictions will be put at risk. As I previously predicted, "by continuing to keep its head in the sand the State is only storing up problems for the future".

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