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Ireland / Supreme Court / 2019/18

Dwyer vs. The Commissioner of An Garda Siochana, Minister for Communications, Energy and Natural Resources, Ireland and Attorney General

Deciding Body type:
National Court/Tribunal
Deciding Body:
Supreme Court
Decision date:
Key facts of the case:
Graham Dwyer was convicted in 2015 of the murder of Elaine O’Hara in 2012. Key evidence at the trial was data gathered from Dwyer’s phone which placed his phone at specific places at particular times and dates. Phone data was also used to link Dwyer’s phone to one of a pair of phones which were discovered in a body of water with some of the victim’s belongings. The phone data was acquired under the Communications (Retention of Data) Act 2011 ‘the 2011 Act’, which, inter alia, requires all service providers to retain telephony data to identify source, destination, timing, geographic location and type of equipment used, for two years. The 2011 Act was put in place to give effect to Directive 2006/24/EC on data retention. However, the 2006 Directive had been declared invalid by the ECJ in [ECLI:EU:C:2014:238] (“Digital Rights”). In ‘Digital Rights’, the ECJ held that the adoption of the Directive contravened Articles 7, 8 and 52(1) of the Charter, and the Directive was declared invalid. This meant that the earlier 2002 Directive on processing of personal data and privacy now applies. The plaintiff argued the 2011 Retention of Data Act contravened EU law, including the Charter, the ECHR, and the Irish constitution, in that the Act permits holding of data in a manner which is general and indiscriminate.
Key legal question raised by the Court:

In January 2019, Justice O’Connor in the High Court made the following declaration: “that s. 6(1)(a) of the Communications Retention of Data Act 2011, (“the Act”), insofar as it relates to telephony data, as defined in Part 1 of Schedule 2 of the Act, and which is retained on a general and indiscriminate basis as provided for in s. 3 of the Act, is inconsistent with Article 15(1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector, read in light of Article 7, 8 and 52(1) of the Charter of Fundamental Rights of the European Union.” (“the Declaration”). ([2019] IEHC 48). The respondents then appealed this decision to the Supreme Court, which was heard in December 2019. Judgment was then issued in February 2020.

The key legal question for the Court to decide was whether the 2011 Retention of Data Act was compatible with EU law, specifically the 2002 Directive interepreted in light of the Charter.

Outcome of the case:

In terms of factual outcome, the Supreme Court referred the case to the CJEU for further consideration, but it is worth noting that the Chief Justice in the Supreme Court hearing took a different approach from Justice O’Connor in the High Court from which it was appealed. The Supreme Court submitted a preliminary reference to the CJEU on the grounds that three points needs clarification of law: 1. where a system of universal retention of metadata for a fixed period of time is never permissible irrespective of how robust any regime for allowing access may be. Essentially, the Chief Justice argued that distinction should be made between retention (in this case, universal telephony data, for two years) and access (subject to narrower restrictions). He argued that ‘significant regard would have to be attributed to the fact that many serious crimes against vulnerable people are most unlikely, on the undisputed evidence, to be capable of successful prosecution in the absence of a system of universal retention.’ (para 6.18). 2. The criteria whereby an assessment can be made as to whether any access regime to such data can be found to be sufficiently independent and robust In this respect, the Chief Justice stated that: ‘it does not seem to me that the access system which is to be found in the 2011 Act is sufficiently robust to meet the standards identified by the CJEU in its jurisprudence’, but that a question remains as to whether it would be appropriate to make such a final determination without referring questions to the CJEU in respect of the proper approach to the assessment of the access regime.

3. whether a national court, should it find that national data retention and access legislation is inconsistent with European Union law, can decide that the national law in question should not be regarded as having been invalid at all times but rather can determine invalidity to be prospective only. He noted the fact that the 2011 Act has been put in place to give effect to Directive 2006/24/EC, and that Ireland had in fact been brought tho the CJEU by the European Commission in Commission v. Ireland (Case C-202/09) [2009] E.C.R. I-203, ECLI:EU:C:2009:736, for its failure to transpose the 2006 Directive and was held at the time by the Court to have failed to have fulfilled its obligations thereunder (see para 1.3). However, following ‘Digital Rights’ the 2006 Directive and by extension, the 2011 Act were held to be invalid. He highlights the argument made by the State that: ‘any determination should not be retrospective and might indeed be prospective from a date in the future, not least precisely because Ireland had been required by the CJEU itself to enact the 2011 Act.’ [emphasis added]. In his judgment, the Chief Justice highlighted that retaining of telephony data has been particularly instrumental in obtaining evidence of crimes against vulnerable people, such as in the case concerning Mr Dwyer, where the circumstances do not generally lead to prior suspicion. In his dissenting opinion, Mr Justice Peter Charleton went further in citing two well known serious criminal cases which involved retention and recovery of data, one concerning a 1996 gang related murder of a journalist, and the other concerning the 1998 Omagh bombing. His contention was that Article 47 of the Charter provides for effective remedy and that ‘without the secure retention of metadata and the potential to access and analyse it for strictly limited purposes related criminal investigation, the most serious crime against life and limb would remain undetected. Victims, including the survivors of victims’ families, would be deprived of their human right to access a court proceeding in pursuit of justice.’ (Dissent, para 9).