The Court of Justice of the EU will hear arguments next month on key legal issues concerning the retention of mobile phone data which could impact on Graham Dwyer’s bid to overturn his conviction for the murder of Elaine O’Hara.
Attorney General Paul Gallagher is expected to lead the State's legal team before the Luxembourg court for the hearing on September 13th of the issues referred to it by the Supreme Court.
The referral was made in February 2020 in the State's appeal over a key High Court ruling against the validity of a 2011 Irish data retention law central to the investigation and prosecution of serious crime.
The Court of Justice (CJEU) decision, which could be delivered by the end of this year, will impact on the final Supreme Court judgment on the State’s appeal.
If the High Court ruling is upheld, Dwyer, represented by Remy Farrell SC, is expected to rely on it in his separate criminal appeal to the Court of Appeal over his 2015 conviction for the murder of Ms O’Hara, a childcare worker.
A finding by the CJEU in his favour will enable him argue in his criminal appeal that his conviction cannot stand because it was, in part, founded upon evidence that should have been excluded as having been unlawfully obtained.
It will be open to him to argue, following an earlier CJEU decision, that the Garda investigators should not have been given access to the relevant data and it was therefore admissible.
The Supreme Court, when making the referral, stressed the exclusion of evidence in Dwyer’s trial is a matter for the trial court and for the criminal appellate process and is not an issue in the State’s appeal.
It said the State’s appeal only concerns whether the High Court correctly found that section 6 of the Telecommunications (Retention of Data) Act 2011 breach EU law because it allowed for indiscriminate data retention without adequate safeguards, including prior independent overview of access requests.
Although the State's appeal will not be fully decided by the Supreme Court until it considers the CJEU ruling, Chief Justice Frank Clarke, when directing the referral in February 2020, expressed important preliminary views with which five of his colleagues agreed.
Those included that a system of “universal but limited” retention of phone data is not in itself incompatible with EU law but that there must be a “particularly robust” access system in place which includes having independent prior permission for such access.
The current Irish access system does not meet that standard, Mr Justice Clarke said.
Another important preliminary view, including for the purpose of Dwyer’s criminal appeal, was that national courts have power to decide any declaration of invalidity of the 2011 Act should only be prospective — apply from the date of the court declaration of invalidity.
Because the High Court finding that 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 national law should not be regarded as having been invalid at all times but rather can determine invalidity to be prospective only.