Garda use of controversial spying powers has dropped dramatically over the past two years following a landmark High Court ruling in December 2018.That decision, stemming from a case taken by convicted murderer Graham Dwyer, declared that the States power to access telephone data for the investigation of serious crime breached European laws.Figures provided by the Department of Justice to the Irish Examiner show disclosures of communication data to State agencies fell by more than 60% since the decision.
A former Garda boss said the current legal impasse was unsustainable if the State was to deliver on its duty of care to its citizens and said the uncertainty had tilted the balance in favour of criminals, while civil rights campaigners said Ireland had repeatedly breached EU laws yet had still failed to put in place adequate safeguards against excessive surveillance.
The High Court ruling related to serious crime and phone records and did not directly cover the two other grounds State agencies can seek the data: for reasons of national security and for the preservation of life.
Communication data, also known as metadata, does not include the content of communications, but the traffic data: including logs of phone calls and texts, duration and location of calls, as well as internet records such as IP address, email address, and credit card information.
The tracking of the movement of phones played a key role in the trial of Dwyer for the murder in August 2012 of Elaine OHara.
The figures show:
- 13,878 data disclosures were provided by companies to State agencies in 2018, dropping to 8,355 in 2019 and to 5,184 in 2020 (down 63% over the two years);
- 13,545 disclosures were given to An Garda SÃochÃ¡na in 2018, falling to 8,110 in 2019 and to 4,927 in 2020 (a reduction of 64%);
- 288 disclosures made to the Defence Forces in 2018, reducing to 245 in 2019 and rising to 257 in 2020;
- 23 disclosures to GSOC in 2018, falling to zero in both 2019 and 2020;
- 23 disclosures to Revenue in 2018, falling to zero in the following yearsÂ
Garda sources said their 2020 figures could also have been affected by the general reduction in criminal and subversive activity.
The figures for the Defence Forces relate to the national security grounds.
An Garda SÃochÃ¡na is the only agency empowered to seek data across the three grounds and the 5,184 cases in 2020 would include national security and preservation of life. It may include figures on internet data for the investigation of serious crime, but this is not clear.
The Department of Justice said access to metadata was an important tool used by law enforcement agencies the world over to prevent and detect serious crimes.
It said: As regards the decrease in the data provided in recent years, agencies are bound by the decision of the High Court in the Dwyer case with regard to the Communications (Retention of Data) Act 2011.”
Following a State appeal, the Supreme Court referred the legal issue to the European Court of Justice.
The department said it was still working on legislation to clarify the law and that this would take into account rulings from Europe including the outcome of the ECJ case.
Former Garda assistant commissioner Pat Leahy said the legal uncertainty was unsustainable if the State was to deliver on its duty of care to its citizens and said the legal impasse had tilted the balance in favour of criminals.
Olga Cronin of the Irish Council for Civil Liberties said: Ireland has repeatedly been found in violation of European law on this and yet has failed to put in place adequate safeguards against this excessive surveillance.