LAST UPDATE | 18 Nov 2021

AN ADVISORY OPINION FROM the Court of Justice of the EU (CJEU) on a case taken by convicted murderer Graham Dwyer has insisted that the general and indiscriminate retention of data is not justified in the prosecution of serious crimes. 

This kind of indiscriminate data retention, he said, is only justified by the protection of national security.

Dwyer has argued that data gathered from his phone should not have been used at his murder trial.

Ahead of the final ruling of the CJEU, the court’s Advocate General Campos Sánchez-Bordona today delivered an opinion with regards to the case. The Advocate General hears all the evidence presented to the court and is tasked with presenting an impartial non-binding opinion. 

In his opinion he argued that the storage of electronic communications data must be targeted, because of the serious risk entailed by their general storage.

He pointed out that, “in any event, access to that data entails a serious interference with fundamental rights to private and family life and the protection of personal data, 
irrespective of the duration of the period for which access to those data is requested”.

“By permitting, for reasons going beyond those inherent in the protection of national security, the preventive, general and indiscriminate retention of traffic and location data of all subscribers for a period of two years, Irish legislation does not therefore comply with the Directive on privacy and electronic communications,” he stated in his opinion.

Moreover, access by the competent national authorities to retained data does not appear to be subject to prior review by a court or an independent authority, as required by the case-law of the court, but to the discretion of a police officer of a certain rank.

Dwyer pleaded not guilty to the murder of childcare worker Elaine O’Hara but was convicted in 2015 and was sentenced to life in prison.

The former architect has launched a case against the Garda Commissioner and the Minister for Communications claiming that data gathered from his phone should not have been used at his trial.

The metadata, which was generated by Dwyer’s work phone, placed the device at specific places at particular times and dates.

The admissibility of this evidence will not be decided by the CJEU but by Ireland’s Supreme Court.

Ahead of that decision however, the Supreme Court was obliged to refer a number of questions to the European court because the case relates to European law, specifically data retention.  

In total six questions, which are each quite technical, were referred by the Supreme Court to the CJEU. 

They include whether a system of universal retention of certain types of metadata for a fixed period of time is never permissible irrespective of how robust any regime for allowing access to such data may be.

The issue of the proportionality of any such retention system is also being considered. 

The decisions on these questions could have significant implications for criminal investigations across the EU. They may or may not have a bearing on whether the Supreme Court rules in favour or against Dwyer as part of his case against Irish authorities.

High Court

In 2018, the High Court found that sections of Ireland’s retention laws concerning information generated by telephones contravene EU law.

This decision came following Dwyer’s challenge but the ruling has been appealed by the State to the Supreme Court.

The use of the data, Dwyer claimed, was unconstitutional and breached his rights under the EU Charter and the European Convention on Human Rights, including his right to privacy.

The European Court of Justice (ECJ) found in 2014 that the 2006 EU directive was invalid and this position was further strengthened in subsequent rulings by that court in 2016.

Lawyers for Dwyer therefore claim that the 2011 Act suffered from the same flaws identified by the ECJ.

If it is determined that Irish laws are also invalid, one question that arises is whether the judgement applies retrospectively and therefore applies to Dwyer’s case, or to future cases only.

The Supreme Court has previously said that the 2018 High Court ruling in favour of Dwyer should only apply to future cases.