LAST UPDATE | 24 Feb 2020

THE SUPREME COURT has decided to refer the State’s appeal against convicted murderer Graham Dwyer’s challenge to the retention of his mobile phone data to the European Court of Justice. 

The State appealed a 2018 High Court decision that sections of Ireland’s retention laws concerning information generated by telephones contravene EU law. That decision was in relation to a case taken by Dwyer against the Garda Commissioner and the Minister for Communications.

The High Court judge had said Ireland’s data retention laws provide for an indiscriminate retention regime.

As well as being an important ruling in respect to Dwyer’s appeal against his conviction, the State had argued the action also had major implications in relation to the authorities’ ability to retain, access, and use information generated by mobile phones in the investigation of serious criminal activities.

At the Supreme Court sitting in Waterford this morning, Chief Justice Frank Clarke said the three central questions in the case “each involve difficult issues”. He said the majority decision among the seven Supreme Court judges was to refer the appeal to the EU Court of Justice.

In his judgment, Clarke said: “It is important to emphasise both what this case is about and what it is not about.

“While it is clear that the underlying reason why Mr Dwyer has brought these proceedings relates to his conviction for the murder of Ms O’Hara and the appeal against that conviction which currently lies before the Court of Appeal, nonetheless the only issue which is now before this Court on this appeal relates to a much broader question, being as to whether aspects of the Communications (Retention of Data) Act, 2011 are valid as a matter of European Union law.

“The High Court found that certain provisions of the 2011 Act were invalid on that basis. The State parties have appealed to this Court against that finding. Whether, and if so in what way, an ultimate finding of invalidity might affect Mr Dwyer’s criminal appeal is not an issue before this Court at present.

Clarke expressed the view that “the answer to three central questions of European Union law which arise on this appeal are as follows”:

(a) A system of universal but limited retention of telephony data is not, in and of itself, incompatible with European Union law not least because of the evidence tendered in the High Court in these proceedings which leads to the conclusion that the investigation and prosecution of serious crimes, not least those against women, children and vulnerable persons, would, in many cases, be impossible without access to such data. Such access can only be possible if the data is retained in the first place. I note in the judgment that you cannot access that which has not been retained.

(b) Even though universal limited retention of telephony data may be permissible in principle, nonetheless there must be a particularly robust access system in place which conforms with the case law of the Court of Justice which in turn specifies that there must be independent prior permission given for such access. I express the view that the Irish access regime does not meet that standard not least because of the fact that, albeit access permission is granted by a separate unit within the force, such permission is nonetheless granted from within An Garda Síochána so that there is insufficient independent review in advance of the need for access.

(c) On the question of whether, on a national court finding that a measure such as the 2011 Act is inconsistent with European Union law, the court concerned has the power to decide that any such invalidity should only be prospective from the date of its judgment, I express the view that national courts do have such power. I also express the view that, in the event that a national court has such power, it would be appropriate to exercise it in this case in favour of not regarding the relevant aspects of the 2011 Act as having been invalid until the date of this judgment. I do so principally because the 2011 Act was actually enacted by the Oireachtas precisely because it was required by European Union law as it appeared at the time and in circumstances where Ireland had been the subject of successful infringement proceedings brought by the European Commission before the Court of Justice itself arising out of the failure of Ireland to introduce legislation such as the 2011 Act.

Clarke continued: “However, and most importantly, each of those three questions on which I have expressed views involve, in my consideration, difficult issues of European Union law.

“Under the Treaties and the case law of the Court of Justice, a national court, such as the Supreme Court, from which there is no further appeal, is obliged to make a reference to the Court of Justice of any issue of European Union law which is necessary to decide proceedings before it unless there is a clear answer to that issue of European law or, as the case law of the Court of Justice puts it, the matter is acte clair.

“I am not satisfied that it can be said that the answer to any of the three questions on which I have just touched is acte clair in that sense and in those circumstances it seems to me, and I so propose, that this Court should make a reference on those issues to the Court of Justice under Article 267 of the Treaty on the Functioning of the European Union.”

New legislation

In a statement issued this afternoon, Justice Minister Charlie Flanagan said the judgment, as well as the draft preliminary reference from the Supreme Court, is “being examined by my officials, who will do so in conjunction with the Attorney General’s Office”.

“I am conscious that this is an area of law where there have been, and there are pending, quite a number of references to the Court of Justice.

“It is clear that the current legal framework, allowing for access to communications metadata to combat criminals and terrorists, needs to be modernised in light of evolving jurisprudence.

“The Government has already approved drafting of a revised General Scheme of the Communications (Data Retention and Disclosure) Bill. The Bill will replace the Communications (Retention of Data) Act 2011. Drafting of the Bill is well advanced and the Department of Justice and Equality is working closely with the Office of Parliamentary Counsel and the Office of the Attorney General on this matter.”

Flanagan said the draft legislation “will, of course, need to take account of the outcome of the referral of this case to the CJEU”.

He added: “We must be conscious that Mr Dwyer is, in separate legal proceedings, appealing against his conviction and in those circumstances, of course, it would not be appropriate for me to comment at all on the details of the case.”

The High Court decision

Dwyer was charged with of the murder of childcare worker Elaine O’Hara in October 2013 and convicted by a jury following a lengthy trial in March 2015. He was sentenced to life in prison. 

Dwyer, who denies killing O’Hara, claimed that data gathered from his phone, under the 2011 Act, should not have been used at his 2015 trial before the Central Criminal Court.

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

That data was used to link Dwyer to another mobile phone which the prosecution told the jury during his trial that he acquired and used to contact O’Hara.

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.

Dwyer’s lawyers argued the Act was introduced to give effect to a 2006 EU directive concerning the retention and use of data.

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

He claimed the 2011 Act suffered from the same flaws identified by the ECJ.

The State opposed his arguments and said Dwyer’s application was misconceived and should be dismissed.

It argued the laws that allow the authorities to access and utilise retained data, are extremely important in the detection, prevention and investigation of serious crime.

In what was a detailed and lengthy judgement in the High Court, Mr Justice Tony O’Connor said he was satisfied that the 2011 Act provides for an indiscriminate retention regime.

The ECJ, the judge said, had found that such regimes are prohibited under articles of the European Charter.

The judge also found that practices of how gardaí apply for and obtain mobile phone data were not enough to satisfy the decisions of the European Courts in regards to access.

The sections of the 2011 Act concerning access to retained data contravene EU law and the European Court of Human Rights because there was no prior review by a court of administrative authority for access to telephony data.

With reporting by Órla Ryan

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