A lawyer who reviewed the UK’s anti-terror laws has told the High Court the use of data retained by telecommunications providers was of “crucial importance” to the investigation of serious crimes.
Barrister David Anderson QC, the UK’s independent reviewer of terrorism legislation up to 2017, said the retention and use of data including telephone traffic records by Britain’s police and intelligence agencies had been vital in the prevention and detection of terrorism, cyber crimes, human trafficking, child abuse and catching serial killers.
Mr Anderson, who compiled a report into the use of communication data by police and others in the UK, was giving evidence on the fifth day of an action by convicted murderer Graham Dywer aimed at having provisions of Ireland's data-retention laws struck down.
In evidence, Mr Anderson cited examples where data retention was used by the UK police when investigating serious crimes.
One example where retained data was used was during an investigation by South Wales Police into Lostprophets singer Ian Watkins, who was jailed for 29 years after he pleaded guilty in 2013 to offences including sexual assault and attempted rape of two infant children, whose mothers were also convicted.
Privacy rights
In his action, Dwyer claims the 2011 Communications (Retention of Data) Act, which allowed gardaí obtain and use data generated by Dwyer’s mobile phone during his 2015 trial for the murder of childcare worker Elaine O’Hara, breached his privacy rights.
The material obtained under that Act should not have been used at his trial, he claims.
The court has heard the Act was introduced to give effect to the 2006 European Union directive concerning the retention and use of data which was struck down in 2014 by the European Court of Justice (ECJ) as invalid.
Dwyer claims that position was strengthened in subsequent rulings by the ECJ in 2016 and contends the 2011 Act suffers from the same flaws identified by the ECJ.
In proceedings against the Garda Commissioner and the State, Dwyer is seeking various declarations that his privacy rights under the Constitution, European Convention on Human Rights and EU charter have been breached.
Dwyer (45) denies killing Ms O’Hara, and his appeal against his conviction is pending before the Court of Appeal.
On Tuesday, Mr Anderson, in reply to Brian Murray SC for the State parties, said, when compiling his report entitled A Question of Trust he spoke to various groups including police forces and NGOs inside and outside the UK.
He concluded retained data can be of vital importance in a number of ways to investigators, including in helping track the movements of an operational phone whose owner is unknown.
It can also identify premises of interest, or trace the movements of a suspect, establish innocence and locate highly vulnerable persons.
He did not believe there was any effective alternative to a general data retention regime and said targeting specific areas or “quick freezing” data relating to specific persons after they become subject to suspicion would not work.
After the courts of Germany and the Czech Republic struck down their data retention laws, many criminal investigations could not be solved, he said.
Directions
Under cross-examination by Remy Farrell SC, for Dwyer, Mr Anderson said the ECJ’s judgments about general retention schemes did not contain directions telling member states what they should do or not do.
The ECJ had set out routes to take in relation to retention of data schemes and he did not consider these routes to be “productive or feasible”.
Also giving evidence to the court on Tuesday was defence expert Prof Michael Clarke who told Seán Guerin SC, for the State, he would not classify data retention as a form of surveillance.
The retention of data without anyone doing anything with it was “inert”, he said. For any form of surveillance to occur, somebody would have to sift through the material and obtain a certain degree of information about a person or persons, he added.
The action continues before Mr Justice Tony O’Connor.