A senior judicial adviser to the European Court of Justice (ECJ) will give an opinion on Thursday on the far-reaching challenge by convicted murderer Graham Dwyer over Ireland's mobile phone data retention regime.
While not binding on the court, the advocate general’s opinion could have a significant influence on its final judgment addressing data rights issues, not just affecting Dwyer’s bid to overturn his conviction but the battle against serious crime in all EU member states.
A core concern of Ireland and other member states is to establish exactly what safeguards are necessary to enable data retention in accordance with EU law.
There is no indication yet when the final ECJ judgment will issue but it could take several months. Its findings will be taken into account by the Supreme Court in deciding the State's appeal over a High Court data retention ruling in favour of Dwyer.
Mobile phone data played an important role in securing his conviction in 2015 for the murder of childcare worker Elaine O’Hara in August 2012.
He later brought a High Court challenge to the Irish legislation under which the data was held.
The Irish law – section 6 of the Communications (Retention of Data) Act 2011 – was based on a 2006 EU directive on data retention. That directive was struck down by the ECJ in 2014 on grounds the universal and indiscriminate retention of mobile phone and internet data breached privacy and data protection rights.
In light of the ECJ decision, the High Court agreed with Dwyer’s lawyers that the 2011 law was contrary to EU privacy law because it allowed for indiscriminate data retention without adequate safeguards, including a prior independent overview of data access requests. The State appealed that decision to the Supreme Court, which referred issues of EU law to the ECJ.
The ECJ is addressing those and similar issues in two cases referred to it by the German and French courts.
In submissions in the Dwyer hearing last September, Attorney General Paul Gallagher told the ECJ the ability of law enforcement agencies to use retained data was essential to upholding the values of justice and the rule of law. Remy Farrell SC, for Dwyer, argued Irish law allowed for minimal protection of data privacy rights and was contrary to EU law.
In a significant judgment last October on a separate case raising similar issues, the ECJ confirmed that EU law precludes national law requiring an electronic communications services provider to carry out indiscriminate transmission or retention of traffic and location data for combatting crime in general or safeguarding national security.
It provided for derogations allowing member states, where there is a genuine national security threat, to allow for time-limited indiscriminate retention of data. Member states may also provide for targeted and expedited retention of data for combatting serious crime and preventing serious threats to public security. Such interference with fundamental rights must be subject to effective safeguards and be reviewed by a court or independent authority, the ECJ said.
Following the October judgment, regarded as a potentially important marker of the thinking of the ECJ on the issues raised in Dwyer, the Supreme Court was asked by the ECJ whether it still wanted an answer to the questions it had referred in the Dwyer case. The Supreme Court said it did.
The final ECJ and Supreme Court decisions are likely to have implications for Dwyer’s separate appeal against his conviction, for which a date has yet to be fixed.