THE COURT OF Justice of the EU (CJEU) began hearing arguments related to a case being taken by convicted murderer Graham Dwyer today.

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. 

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.  

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.

As part of their investigations, gardaí requested access to phone data from communications providers under powers from the 2011 Communications (Retention of Data) Act.

That Irish law was brought in following a 2006 EU directive on the retention of phone data. 

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. 

This is a case of significance in the communications and law enforcement sphere for a number of significant and relative self-explanatory reasons. I suggest having kept an eye on this for some years, that TEU Article 6 might be the place where the answers eventually emerge.

— Ronan Lupton (@ronanlupton) September 12, 2021

Speaking to The Journal today, barrister and data protection law expert Ronan Lupton said he does not expect this to change and that in his opinion it is unlikely that any judgement against the Irish law would apply retrospectively. 

If you think about what the question before the court is, was the information unlawfully obtained at the time you’re obtaining it. The answer is no, it just isn’t because you can’t just refit or retrofit. The court might say, ‘yes it should have been invalid, it wasn’t right and is counter to the Charter of Fundamental Rights and all of those things’. They could say that, but I don’t think they will because they’ve been asked specific questions. 

Questions

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

The Irish State is represented at the hearing with over a dozen member states also making submissions to the court. 

Ahead of the final ruling of the CJEU, the court’s Advocate General will first deliver an opinion with regards to the case, with Lupton saying that that opinion is likely to be given in a number of month’s time. 

The Advocate General hears all the evidence presented to the court and is tasked with presenting an impartial opinion. 

Dwyer has a separate appeal against his conviction and the final ruling here will be factored into that, but the Supreme Court decision relates only to the data retention argument.

He remains in custody carrying out his life sentence.