THE SUPREME COURT today decided to refer convicted murderer Graham Dwyer’s case over data retention to the Court of Justice of the European Union (CJEU).

In 2018, the High Court had ruled 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. 

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 Communications (Retention of Data) Act 2011, should not have been used at his 2015 trial before the Central Criminal Court.

The 2011 Communications (Retention of Data) Act allows a garda of chief superintendent and above to request user data from communications providers. 

The High Court in 2018 ruled that this law provides for an indiscriminate retention regime. The judge in the case pointed out that there is no prior review by a court or independent body for access to data. 

The State is now appealing the High Court’s 2018 decision in relation to the data gathered for this criminal investigation.

What happened in court this morning?

The Supreme Court was sitting in Waterford this morning. Chief Justice Frank Clarke told the court that the majority view among the seven judges (with just one dissenting voice) was that questions relating to European law in this area should be referred to the European Court of Justice. 

This is known as the ‘preliminary reference procedure’. 

Dr Andrea Ryan of the School of Law in the University of Limerick, explained why this procedure is used:

“Article 267 of the Lisbon Treaty provides for national courts to refer questions concerning EU law to the Court of Justice of the EU. Under this ‘preliminary reference’ procedure, if, while the case is being heard before the national court, an issue arises that involves a question of EU law, the national court may formulate a question for the CJEU as to how the particular EU law should be interpreted. The case is adjourned at national level until the response is received from the CJEU.

“When the answer to the question is given by the CJEU, that answer is binding not just on the member state that asked the question, but on all member states when they are applying the particular EU law that was referred to the court.”

While lower courts (such as the High Court, for example) have the option of referring questions to the European court, the Supreme Court is obliged to refer them if there is a lack of clarity on an issue and/or it is necessary to decide the proceedings. 

There is an obligation, rather than an option, because the Supreme Court is the final court of appeal in the country. 

“The whole point of the preliminary references is that they can get questions sorted out at an early stage rather than wait for the whole appeal process,” Ryan explained. 

What are the questions being referred to the CJEU?

The questions have not yet been formulated. The Chief Justice has directed the parties (the State and Dwyer’s legal team) to offer observations and the Supreme Court will then put together the actual questions.

However Justice Clarke did indicate what the court thinks the issues are:

(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 judgement 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 judgement, 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 judgement. 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.

Stephen Coutts, a lecturer at University College Cork and expert in European Law, said two of these three questions are about the compatibility of Irish law with the EU law. 

“Note the division of labour between the Courts – the Supreme Court interprets Irish law, the Court of Justice, EU law. It will be for the Supreme Court to determine whether the national law is compatible or not with EU law but in order for them to do this, they need an interpretation of EU law,” he explained. 

“The response from the Court of Justice of the EU to this may be more or less determinative. It is sometimes very prescriptive, more or less telling the national court how to resolve the case.

It is sometimes very open – talking about proportionality and such like – leaving a lot of discretion to the national court. In light of the fact that this is a Supreme Court, they are likely to be more deferential I would say.

He said due to the fact that this case involves “open concepts”, it is likely that the European court will develop a test with some criteria for the Supreme Court to apply to the Irish legislation. 

“The final question is quite interesting; whether under EU law the national court can alter the temporal effect of the declaration of incompatibility with EU law, ie. whether it would be retrospective – applying to all past cases since the legislation was adopted – or prospective,” he said.

“Normally under EU law it is retrospective but sometimes if there is good reason – and many seem to be exist here – it can be prospective. It seems the Supreme Court wish to limit the effect of any finding of incompatibility to future cases.”

How long will this take?

This is an extra step in the Supreme Court’s process and normally involves a delay of around 18 months. However, the Supreme Court has requested an expedited procedure in light of the fact that Dwyer is in custody. 

Experts said if this is granted, the answer should come back from the Court of Justice in around three months’ time. 

What happens in the meantime?

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 will remain in custody while proceedings are ongoing.

Dr Andrea Ryan said it is possible that cases that directly relate to the same point of law and that are currently ongoing could be adjourned pending a decision in this case. 

“However cases that have already been decided – cases where the person is already in jail for example – will depend on the Court of Justice answer as to whether the decision should apply retrospectively.”

In terms of the Irish legislation in this area, it is likely that the answers that come back from the CJEU – remember, they are binding – will shape future laws. 

The Irish government has already approved the drafting of a revised general Scheme of the Communications (Data Retention and Disclosure) Bill. 

This bill would replace the 2011 legislation that this case centres around. 

Justice Minister Charlie Flanagan said today that 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”.

He said drafting of the new 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”.

However, it is unclear whether the new government – whatever form it takes – would push ahead with this bill.