A phalanx of European Union member states have backed Ireland’s opposition at the European Court of Justice to a restrictive legal interpretation of how law enforcement authorities can retain and use data.
The push for the court to review its previous positions comes after convicted murderer Graham Dwyer successfully sued the Irish State on the basis that use of his phone data had breached EU law, leading the Supreme Court to seek clarification from Luxembourg.
The Irish case was bundled together into a single hearing on Monday with two cases from Germany concerning the same aspect of law, in which telecoms companies challenged obligations to store data and provide it to legal authorities.
Some 14 member states and the European Commission made submissions in the case, reflecting the urgent interest around the continent in challenging restrictions that the governments argue will hobble the ability of police to investigate crime.
"There are serious crimes, we are telling you now, that will not be capable of being detected and prosecuted. And the reason is that modern technology has outpaced the means of investigation," State Attorney General Paul Gallagher implored the court in his final remarks.
“There is evidence that is out there that we will not be able to get. Europol have said that, the member states have told you that. How can it be ignored without undermining a core union value?”
The court has previously upheld strict limitations on what personal data can legally be retained and accessed for law enforcement purposes, including restrictions on time and geographic scope.
A series of member states urged the court to revisit this opinion, with France, Spain, the Netherlands and others throwing their support behind the arguments of the Attorney General and warning that an outcome that curtailed national authorities’ ability to fight crime would undermine faith in EU law.
Irish judge Eugene Regan acknowledged that submissions from member states had revealed practical "difficulties of implementing" the current rules.
“Every member state today, in their intervention, said there is no alternative or less onerous means to protect society and prosecute crime in the digital age,” he said. But other judges challenged Mr Gallagher over the circumstances of how the mobile phone evidence against Dwyer was used.
In response, Mr Gallagher acknowledged that “the criticisms in the method of access are taken on board, and the Supreme Court will have to take account of those”.
The European Commission made a case for a compromise, by extending a current allowance that data can be indiscriminately retained in some circumstances for reasons of national security, to also cover instances of serious crime of a nature that challenged the state.
Dwyer’s legal team argues that data procured from two mobile phones that was key to identifying him as a suspect was retained indiscriminately, at a time when there was no reason to suspect him, and therefore in a way contrary to EU law. In the hearing, Dwyer’s counsel, Remy Farrell SC, argued that phones had effectively been used as “personal tracking devices” on his client and that the gathering of evidence had breached his rights.
The court’s advocate general Manuel Campos Sánchez-Bordona will draw up an advisory opinion on the basis of the hearing that is expected on November 18th, which will inform the judges as they draw up their decision.
A favourable judgment by the Luxembourg court may bolster an appeal to overturn his conviction, though it will ultimately fall to the Irish Supreme Court to assess the implications of any ruling for his conviction. Another key question is whether any ruling would be applied retrospectively or only cover future cases.