Graham Dwyer appeal is referred to Court of Justice in Luxembourg

THE current legal framework, allowing for access to communications meta-data to combat criminals and terrorists, needs to be modernised in light of evolving jurisprudence.

That’s according to Justice Minister Charlie Flanagan who was speaking after key issues in the State’s appeal over convicted Bandon murderer Graham Dwyer’s mobile phone data retention case, were referred to the EU Court of Justice in Luxembourg.

The State’s appeal over a High Court ruling upholding Dwyer’s challenge to a 2011 data retention law has important implications for the investigation and prosecution of serious crime and may also impact on Dwyer’s separate appeal over his 2015 conviction for the murder of childcare worker Elaine O’Hara.

Although the State’s appeal will not now be fully decided by the Supreme Court until the CJEU rules, the Chief Justice Frank Clarke, who gave the majority judgment on Monday, 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, the Chief Justice said.

Chief Justice stressed on Monday that the Supreme Court appeal did not concern Dwyer’s separate conviction appeal but rather concerned the High Court finding that provisions 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.

Earlier in the main judgment, the Chief Justice said the use of phone data is increasingly crucial to the detection and prosecution of serious crimes, including murder, terrorism and cases involving the grooming of children.

The experience of the Irish courts is that some such cases have only been solved because of the availability of the type of phone metadata at issue in Dwyer’s case and Dwyer’s side had not disputed the importance of such evidence, he said. If, as Dwyer argued, it is not permissible to have such “universal” retention of data, notwithstanding  how robust any regime for access to that data is, then many serious crimes against women, children and other vulnerable persons will not be capable of detection or successful prosecution.

In that context, his view was that alternative  forms of data retention, such as geographical targeting, would be ineffective in the prevention, investigation, detection and prosecution of at least certain types of serious crime and could also lead to potential violation of other individual rights.

Mr Justice Donal O’Donnell, Mr Justice Liam McKechnie, Mr Justice John MacMenamin, Ms Justice Iseult O’Malley and Ms Justice Mary Irvine all agreed with the Chief Justice.

In his dissenting judgment, Mr Justice Peter Charleton said this case was all about excluding ‘vital’ metadata and Ireland is not part of any legislative obligation for the exclusion of evidence.

Issues of proportionality of a legislative measure impinging on guaranteed rights should be resolved by national courts  and there was enough evidence before the Supreme Court for a ruling to be made as to whether the High Court decision should be reversed or upheld, he said.

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