Thursday, December 2

Adviser to the EU high court issues an opinion on police use of phone location data

An opinion issued by a senior adviser to the European Union’s high court could have far-reaching consequences for future criminal investigations after he said that the data retention practices used by the Irish police in a high-profile murder case profile contravene EU law.

In 2015, Graham Dwyer was convicted of the murder of child care worker Elaine O “Hara three years earlier, and data collected by mobile phone authorities was key to the guilty verdict.

The case reached the European Court of Justice after an appeal from Dwyer, who argued that Ireland’s data retention law was contrary to the block’s legislation on the matter.

Manuel Campos Sánchez-Bordona, one of the 11 CJEU attorneys general who advise superior court judges, argued in a judicial statement Thursday that “the general and indiscriminate retention of traffic and location data” is only permitted “in case of a serious threat to national security ”, for example, cases of terrorism.

He added that murder cases do not apply.

The ruling, which is not an official ruling, is usually followed by the judges of the Court of Justice of the European Union and precedes any decision made by the court to assist you in a final ruling.

According to Gianclaudio Malgieri, associate professor of law and technology at the EDHEC Business School in Lille, the court judges will likely agree with the Advocate General’s opinion.

“This opinion is likely to be upheld by the court because it is clearly based on the court’s previous jurisprudence, so it is not based on previous opinions of the Advocate General, but on two recent court cases,” Malgieri told Euronews.

If opinion is upheld, it could influence the way police across the continent collect evidence, potentially limiting their ability to collect and use mobile phone traffic and location data in criminal investigations.

Irish authorities argue that Dwyer’s conviction would not have been possible without being able to use data found on mobile phones linked to the imprisoned killer.

His legal team, however, says the police were able to use their phones as “personal tracking devices”, going against their civil liberties.

Campos Sánchez-Bordona also noted that the decision to access mobile phone data in Ireland is made “at the discretion of a police officer of a certain rank,” adding that this goes against previous EU jurisprudence, which states that access to data like this must be “subject to prior review by a court or an independent authority.”

Malgieri says the Advocate General did not believe that the decision to access Dwyer’s data was made by someone deemed independent and unrelated to the investigation.

“An important implication for ongoing investigations and ongoing activities is that there should be an ex ante authorization from an independent authority, which in this case was not considered independent because it was only a prosecutor,” Malgieri said.

“And so the attorney general believed that the Public Ministry is not independent from the government,” he added.

A decision is expected around March next year.

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