Detective garda attempting to halt trial for giving false statements

Det Garda David O'Brien
Det Garda David O'Brien

A DETECTIVE garda is seeking a High Court ruling on the validity of Ireland's data retention laws in a bid to halt his trial for giving false statements to GSOC during an investigation.

Det-Gda David O'Brien has been charged with giving false or misleading information to the Garda Siochana Ombudsman Commission (GSOC) in October 2012.

Det Gda O'Brien, a member of the Serious Crime Review Team, the so-called “cold case” unit based at the National Bureau of Criminal Investigation at Harcourt Square in Dublin, is contesting the case.

He is being prosecuted under Section 110 of the Garda Siochana Act 2005.

His non-jury trial was due to get under-way at Dublin District Court yesterday (WED) and was expected to last three days.

Judge Bryan Smyth was told that the prosecution case was absolutely reliant on phone records obtained by GSOC from Meteor and Vodafone between February 1, 2011 and March 26 that year.

The data was obtained pursuant to the Communications (Retention of Data) Act 2011.

Det-Gda O'Brien's legal team argued yesterday (WED) that the Irish legislation was invalidated by a European Court of Justice (ECJ) decision last year in a challenge brought by Digital Rights Ireland (DRI). The Luxembourg court struck down, on personal rights and invasion of privacy grounds, an EU directive allowing data retention for a certain period, Judge Smyth heard.

In reply, Tony McGillicuddy BL, for the DPP, argued that the striking down of the EU directive did not disable the Irish data retention legislation.

He said the Communications (Retention of Data) Act 2011 remains in force.

He said that while the Act gave effect to the EU directive, the fact that the directive has been struck down does not have a domino effect on the Irish legislation.

The court heard the defendant could bring a constitutional challenge or another remedy would be to bring his case to the ECJ. Otherwise the district court could ask for the High Court to give a ruling in a procedure known as “the consultative case stated”.

The defence told Judge Smyth they would be seeking the consultative case stated to see if the Irish data retention legislation has been affected by the ECJ decision.

Judge Smyth agreed and adjourned the case until April 24 when the legal question will have been drafted and will then be referred to the High Court for a ruling.

Det-Gda O'Brien's attendance was excused attending on the next date.