Give me a crash course in... the Graham Dwyer data case

Senior judicial adviser to ECJ gave opinion that Irish data regime breaches EU law

Why is Graham Dwyer's name in the news again?
Dwyer is serving a life sentence since 2015 after being convicted of the murder of childcare worker Elaine O'Hara in 2012. Mobile phone data was an important part of the prosecution case against him and he later challenged the 2011 law under which that data was accessed and retained. The High Court ruled in 2018 the Irish law breached EU law because it allowed for general retention of data without necessary safeguards or independent oversight. A formal striking down of the 2011 law was put on hold pending the State's appeal to the Supreme Court, which has asked the European Court of Justice to decide important issues of EU law affecting the case.

The ECJ heard arguments on the questions referred, plus related questions from the French and German courts, in September. This week, an advocate general, a senior judicial adviser to the ECJ, gave an important opinion apparently supporting Dwyer's arguments that the Irish data regime breaches EU law. The opinion is not binding on the ECJ but many consider it is likely, given the consistent case law of the ECJ on the issues, it will endorse it.

What happens next?
The ECJ will give its final judgment in the next few months on the questions raised in Dwyer's case and the related cases. The Dwyer case will then go back to the Supreme Court for its final judgment. If, as expected, the ECJ agrees with its legal adviser, the Supreme Court will have little room to manoeuvre away from the requirements of EU law. Data experts and lawyers believe it will have to uphold the High Court decision in favour of Dwyer and dismiss the State's appeal.

Sounds like good news for Dwyer?
That remains to be seen. It seems he has a good chance of winning in the Supreme Court over the legality of phone data retention, but issues about the admissibility of the phone evidence at his trial will have to be separately decided by the Court of Appeal when it eventually hears his appeal against his conviction. The prosecution could argue that the phone data was accessed and retained in good faith. Other circumstantial evidence put forward at his trial will also have to be considered.

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What about the impact on other criminal investigations? Surely anything that cracks crime is a good thing?
The Attorney General certainly made that case to the ECJ. Paul Gallagher warned that an outcome in favour of Dwyer's data challenge would have enormous implications for the fight against crime. He said restricting the powers of law enforcement to access and use mobile phone data in prosecuting serious crime would lower their ability to prosecute such crimes "to the point of impossibility". There is widespread concern among EU member states about the data issue, evidenced by the fact 14 member states made submissions when the cases were before the ECJ in September.

What do data privacy and protection campaigners say?
They say the State has been on notice for years, particularly since 2014 when the European court struck down the 2006 European Directive on which Ireland's 2011 data regime was based, that EU law prohibits the bulk data retention regime as it operates here. A Bill to reform the law is not, they maintain, being treated with priority.

This week's opinion makes clear the ECJ is not going to change its mind that an indiscriminate data retention regime breaches EU law, according to data privacy expert, Dr Eoin O'Dell, of Dublin's Trinity College. "The opinion says the rules are clear, it's time to comply."

O'Dell expects the Supreme Court will have to uphold the High Court decision in favour of Dwyer and strike down the 2011 law. "If that happens, there will be headlines that this is terrible but the fact that the prospect of a release of Graham Dwyer is even possible, is because of the failure of the State to legislate since 2014."