Mobile phone data used in Graham Dwyer case in breach of EU law, court rules
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- 05 Apr 2022
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Convicted murderer Graham Dwyer has won a significant victory at Europe’s top court in his challenge concerning phone metadata evidence used to convict him.
The European Court of Justice today upheld Dwyer’s challenge to the legality of Ireland’s mobile phone data regime as set out in a 2011 law.
In a judgment with potentially significant adverse implications for the fight against serious crime in Ireland and across Europe, the court said European law precludes national legislation allowing for the general and indiscriminate retention of phone metadata for the prevention of serious crime.
Maintaining the 2011 law would mean continuing to impose obligations on electronic telecommunications services providers which are contrary to EU law and which “seriously interfere with the fundamental rights of the persons whose data have been retained”, the court said. The Irish courts cannot limit the time effect of a declaration the 2011 law is invalid.
European law does permit, for purposes of safeguarding national security, combating serious crime and preventing serious threats to public security, national legislative measures for specific targeted metadata retention limited to a certain category of people or a geographical area, it said
Such retention would be subject to strict time limits for a period which is strictly necessary but which may be extended, it said.
Any system for targeted data retention must be subject to effective safeguards for the data subjects affected against the risk of abuse and to independent oversight, the court stressed.
The CJEU had been asked by the Supreme Court to rule whether the phone metadata retention regime here breaches EU law and it has effectively answered in the affirmative.
The case must now go back to the Supreme Court which will deliver its final decision later on the State’s appeal over the 2018 High Court decision in favour of Dwyer’s challenge to the 2011 law under which the phone metadata used in his prosecution was retained.
Phone metadata played a key role in the securing Dwyer’s conviction in 2015 for the murder of childcare worker Elaine O’Hara in 2012.
There is no certainty the CJEU findings will lead to success for Dwyer in his separate appeal to the Court of Appeal against his conviction.
The CJEU has made clear the admissibility of evidence obtained by the data retention measures is a matter for national law.
An important Supreme Court decision, DPP v JC, allowing otherwise inadmissible evidence to be admitted if it was obtained on foot of an inadvertent breach of a constitutional right is likely to be wielded by the DPP in opposing Dwyer’s appeal, a date for which has yet to be set. Read More...
