Dublin man jailed for life as judge dismisses privacy objections linked to Graham Dwyer ruling

The ruling of the Court of Justice of the European Union (CJEU) in Graham Dwyer’s case, which found that the indiscriminate retention of mobile phone data for use in criminal investigations is a breach of the law, does not automatically mean that such evidence should be excluded, a High Court judge has found.

In the first ruling in an Irish court since the CJEU decision, Mr Justice Tony Hunt found that gardaí investigating a Dublin murder were entitled to access the killer’s phone records.

Mr Justice Tony Hunt said the right to privacy cannot extend to participation in criminal activity, is not absolute and must be balanced with the rights of others and the “proper requirements of the common good”.

He said a right under European law should be considered in “precisely” the same way that a right under Irish law would be considered and does not become “a clove of garlic guaranteed to ward off all domestic vampires”.

Interruptions undermine workplace focus and productivity

---

How long might commuters be waiting for the Dart to Drogheda?

---

From Nicola Coughlan’s hunks in landscaped gardens to Cillian Murphy’s gripping gangster romp: Patrick Freyne’s costume drama guide

---

Europa League final: Ally McCoist enjoys the Dublin buzz as Lookman KOs Leverkusen

---

[ Wayne Cooney found guilty of murdering Jordan Davis as victim pushed his child in pram ]

Mr Justice Hunt was asked to rule on the controversial use of mobile phone data in the trial of Wayne Cooney, who was convicted on Tuesday of murdering Jordan Davis (22) at a lane-way beside Our Lady of Immaculate National School in Darndale, Dublin on May 22nd, 2019.

Cooney (31), of Glenshane Drive, Tallaght, was also found guilty of possessing a 9mm semi-automatic pistol and ammunition in circumstances that give rise to the reasonable inference that he did not have them for lawful purposes on the same date at the same location.

Mr Justice Hunt sentenced Cooney to the mandatory term of life imprisonment for murder, saying that he is “obviously an extremely dangerous individual”.

Earlier this year, the CJEU ruled in favour of murderer Dwyer in his challenge to a 2011 law that required mobile phone companies to keep data relating to calls, texts and the location of mobile phones for two years.

Gardaí investigating serious crimes have accessed that data to discover who suspected criminals were communicating with and to find out the general location of phones at relevant times. The evidence gleaned has been used to identify and convict numerous high-profile criminals.

Mr Justice Hunt’s ruling is not binding on other judges but it is the first indication of how Irish courts could interpret the European ruling.

The judge said it would not be appropriate for him to comment on the European court’s approach, “save to say it exhibits a strange and unusual set of priorities”. He also said that there is no evidence for the court’s finding that mobile phone data would “possibly reveal a significant amount of the private life of the person concerned,” a view which he said is “not universally held outside the membership of the Court of Justice”.

Having concluded that the breach of Cooney’s privacy right under European law has no more weight than a breach of privacy rights under the Irish Constitution, Mr Justice Hunt said: “Any privacy right that Mr Cooney may have enjoyed in this data must give way... to the pressing social necessity for the full and effective investigation of serious crime, and to the weighty, serious and important rights of society and the victims of serious crime in such cases.”

When gardaí accessed Cooney’s mobile phone records in 2019 the law was in a state of flux, the judge said, and it was still a “matter of considerable contention” as to whether the retention of mobile phone data was permitted by EU law. Evidence gathered in 2019, he said, does not become inadmissible because the European court found this year that the retention of data is a breach of citizens’ rights.

Mr Justice Hunt said that the European court’s ruling is “irrelevant to the 2019 states of mind that I must consider in this case”.

In a later part of the judgment, he dismissed objections to the use of mobile phone evidence relating to a drug dealer who allegedly wanted Mr Davis to be killed. “I would happily go so far as to say that the invasion suffered by the owner of this data is therefore comparatively trivial when viewed against the invasion of the various rights of Jordan Davis, his family and the rest of society arising from his murder.”

The real danger to freedom, the judge said, would lie in a failure or refusal by gardaí to investigate organised murders or to use legitimate means to gain relevant evidence.

Mr Justice Hunt also rejected arguments about the admissibility of CCTV evidence, calling for the higher courts to put an end to “spurious” legal submissions that he said are causing a “shocking waste of public money”.

He said the arguments regarding CCTV, which are made in “trial after trial”, are “the most spurious arguments devised by man or beast”, adding: “Almost every trial is bedevilled by these arguments based on privacy which have nothing to do with the investigation of serious crime.”

The judge said he is not aware of any system in the world that would deny itself of CCTV evidence that can be used to further investigations into serious crime and to prosecute those responsible.

Calling on the Court of Appeal to rule on the use of CCTV, he added: “It is long overdue that the appellate courts put these arguments out in the garbage where they belong. The people who put them forward have no interest in privacy other than to prevent prosecution and detection. Privacy has nothing to do with investigations and prosecutions of serious crime and it is about time these barnacles were scraped from the boat.”

Giollaiosa O Lideadha SC, who defended Cooney, said the arguments made during legal argument were not spurious and had been put forward by “conscientious counsel”. Mr Justice Hunt agreed that counsel had acted conscientiously in making the arguments. Mr O Lideadha also said that the arguments put forward were supported by the Supreme Court and the European court.

Sentencing Cooney to life, Mr Justice Hunt said he should not be considered for release until that danger is negated “long in the future”. He noted that Cooney had fired eight times, striking Mr Davis three times, and was “astonishingly reckless” as to the danger posed to his target’s baby and another child who happened to be cycling through the lane when Cooney opened fire.

The judge sentenced Cooney to 13 years each for possession of the firearm and ammunition he used to murder Mr Davis. Those sentences will run concurrently with the life sentence. The court heard that Cooney has 21 previous convictions including one for possession of drugs for sale or supply.

The trial heard that before the murder a local drug dealer threatened to kill Mr Davis over a €70,000 debt.

Before sentencing, Mr Davis’s mother, Sandra Davis, described her son as “our gentle giant”.

“We miss you so much, our hearts are broken without you.”

Ms Davis said the family would always talk about him to ensure that his young son “will always know how great you were”.

“You were a great dad right up to the day you were taken from us in such a cruel way. He is like you in so many ways but has been robbed of your love. We were all robbed of your love.”

She said that ‘Jordo’ loved big hugs and would always kiss her on the cheek when he saw her. “You had a smile that would light up a room and your life ended too soon.”