European court hearing of Dwyer data retention case to hear from member states

Up to 10 EU member states are in line to make submissions before the EU Court of Justice (known as CJEU) on Monday in the State’s appeal over convicted murderer Graham Dwyer’s successful challenge to an Irish mobile phone data retention law.

Mobile phone records helped convict Dwyer in 2015 for the murder of childcare worker Elaine O’Hara in 2012.

The CJEU decision, expected late this year, has potential implications for Dwyer’s separate appeal against his conviction and for member states’ data retention regimes aimed at combatting serious crime.

The State appealed to the Supreme Court after the High Court upheld Dwyer’s claim that section 6 of the Telecommunications (Retention of Data) Act 2011 breached EU law in allowing indiscriminate data retention without adequate safeguards, including prior independent overview of access requests.

Because the appeal hinges on EU law, the Supreme Court has referred core legal issues to the CJEU before reaching its final decision.

On Monday, the CJEU will hear arguments on behalf of the State and Dwyer on those issues.

Submissions

Attorney General Paul Gallagher, with Seán Guerin SC, will present the State’s arguments via video link from the Chief State Solicitor’s office in Dublin. Remy Farrell SC, for Dwyer, will make his submissions at the hearing in Luxembourg.

Other EU member states are entitled to make submissions and it is believed up to 10, and the European Commission’s legal division, may do so.

The CJEU is hearing the Irish case alongside another case, referred by a German court, raising similar issues. Internet services provider SpaceNet AG argues EU data privacy law means it cannot be obliged under German law to store telecommunications traffic data of its customers to whom it provides internet access.

The European court’s advocate general will present his opinion on a later date, to be followed by the CJEU judgment, expected in late December. The outcome will inform the Supreme Court’s final decision on Dwyer’s appeal.

There is much at stake for both Dwyer and the State.

If the CJEU rules against the State, Dwyer is expected to argue in his conviction appeal the conviction must be quashed on grounds the data retention regime is incompatible with EU law.

In a number of recent judgments, the CJEU has ruled that general and indiscriminate retention is not allowed except in certain specified circumstances.

Chief Justice Frank Clarke, in the Supreme Court’s 6-1 majority judgment making the reference, expressed several important preliminary views.

He said a system of “universal but limited” retention of phone data is not in itself incompatible with EU law but there must be a “particularly robust” access system in place, including independent prior permission for such access. The current Irish access system does not meet that standard, he said.

Issues

Another important preliminary view was that national courts can decide any declaration of invalidity of the 2011 Act can apply only from the date of that declaration. Because the High Court finding the 2011 Act breached EU law was made in 2018, that could mean, if the preliminary view stands, the data relevant to Dwyer may have been legally retained and accessed.

The issues before the CJEU include whether a system of universal retention of certain types of metadata for a fixed period of time is never permissible, irrespective of how robust any regime for allowing access to such data may be. Another issue is whether a national court, if it finds national data retention and access legislation is inconsistent with EU law, can decide the invalidity is prospective only.