Why we should welcome the Graham Dwyer ruling

Graham Dwyer is a vicious, cruel, and bad man. He has been convicted – and, regardless of yesterday’s ruling by the European Court of Justice, remains convicted – of one of the more horrific and brutal crimes in the history of the state. Over a period of years, the jury that convicted him determined, he groomed a vulnerable woman called Elaine O’Hara, manipulated her, and then took her life for no other reason than that he enjoyed it. He did all this while living a second life as a happily married father, working in a prestigious architecture firm, and living as a respected citizen of wealthy south Dublin.

Nothing in yesterday’s ruling from the ECJ changed any of those facts. Mr. Dwyer is still a convicted murderer. He is still an infamous, cruel, and evil man.

What the court did determine, though, is welcome news for those of us who value civil liberties, and restrictions on the power of the state, regardless of Dwyer or the ruling’s impact on him.

At Graham Dwyer’s trial, the prosecution presented evidence of his movements which was gathered by tracing his mobile phone as he travelled around the country. How this works is that your mobile device – on which perhaps you are reading this article – is always looking for a phone signal. It does this by looking for the nearest tower transmitting a signal. When your phone finds that signal, it connects to the tower. This mechanism makes it possible for you to be tracked – sometimes with great precision – by triangulating your position relative to the various towers that your phone connects to.

Sometimes, this is very useful. For example, if you call 999, the operator in an emergency is able to use your phone’s connection to a tower to approximate your position, if you yourself are unable to communicate it.

But it also means that your phone company, if it is so ordered, can provide Government with a full accounting of your movements within the country at any time, once you own a mobile phone. What the ECJ has decided is that Government should not have unlimited access to that data.

This is entirely right. The history of the criminal justice system – both in Ireland and elsewhere – is littered with examples of people being wrongly convicted for crimes because they were in the wrong place at the wrong time. In our lifetimes, the Guilford Four and Birmingham Six come to mind. Proving that somebody was near the place that a crime was committed is not evidence that they committed the crime.

What’s more, the Government simply has no right to know where we are, at all times. The fact that this information exists is solely due to that information being created as a by-product of our using phones. What if that information did not exist? Would the Government have the right, for example, to put tracking devices in everybody’s car, just in case they ever needed to investigate them for committing a potential crime? Should it have the right to install cameras in people’s homes, to reduce the incidence of domestic violence?

If your goal is simply to reduce crimes, then there are many things, in theory, that you could do. But people would never accept them, because the cost would be the abolition of privacy.

Dwyer’s lawyers, of course, will argue that without the information about his movements, he would never have been convicted. That is their job, and they would be very bad lawyers if they did not make that argument, and make it as best they can, to try and get his conviction overturned. But it was not the only evidence against him. And if his conviction is overturned, somehow, as a result, then, so be it.

After all, the price of civil liberties is that sometimes, a guilty person will walk free. For example, we could probably solve several unsolved crimes in Ireland by requiring every citizen to register their DNA in a national database. We do not do that, because it would be a grave breach of people’s civil right to privacy, and bodily integrity. That is the trade-off that we make: People are innocent until proven guilty, not suspects until cleared.

In his own way, Dwyer has done the rest of us a service here. One of the side-effects of the digital age has been the creation of more and more data about people which can potentially be accessed by the Government, and used as evidence against us. Almost anybody can be made to look bad, or suspicious, if just the right data is presented in just the right way. Which is why there should be strong rules about when and how the Government can access it. Government simply should not be able to know where you are, at all times. And, thanks to the European Courts, they will now find it harder to do so. That’s a good thing, even if one very bad man will be cheering it, too.


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