In October 2013, Graham Dwyer, architect was charged with the murder of Elaine O’Hara, a childcare worker and was subsequently sentenced to life imprisonment, having been convicted in March 2015 for what Judge Tony Hunt described as a "chilling and premeditated" murder.

During the trial, lawyers for Mr. Dwyer argued that the mobile phone data was inadmissible as evidence, on the basis that at the time of his trial in 2015, the Directive underlying the 2011 Act had been “struck down” by the European Court of Justice. Those arguments were rejected by the trial judge and consequently, the phone data was admitted into evidence.

Mr. Dwyer’s legal team subsequently initiated a High Court action in January 2015 over the use of mobile phone records in his trial, claiming that certain provisions of the 2011 Act breached his rights to privacy under the Constitution, the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union, essentially seeking a declaration which will allow him to advance the argument at his appeal hearing, that particular evidence should have been excluded at his criminal trial.

On 6th December 2018, a High Court Judgement by Mr. Justice Tony O’Connor found that sections of the Communications (Retention of Data) Act 2011 were incompatible with EU Law.

A key aspect of the judgement is the fact that the primacy of EU law is the foundation for this judgement and Ireland and its courts have no option but to apply EU law.

The judgement also found that the 2011 Act is a general and indiscriminate regime that does not meet the requirements of the European Court of Justice and the European Court of Human Rights, further adding that sections of Ireland’s retention laws contravene EU law and findings of the European Court of Human Rights.

The judgement does not mean data accessed and retained contrary to EU law and used by the prosecution in Mr. Dwyer’s trial will lead to the quashing of his murder conviction.

In the aftermath of the judgement, the Minister for Justice and Equality, Charlie Flanagan said that drafting a new Data Retention Bill was at an advanced stage and “on the Government’s priority legislation list”. On 3 October 2017, the government published the general scheme of the Communications (Retention of Data) Bill 2017 (“the Bill”)

What are the implications of this judgement for Communications Service Providers?

The main finding of the judgement is that certain aspects of the legislation in Ireland relating to retention of and access to communications data (the 2011 Act) is not compatible with EU law.

It is important that CSPs closely follow the Bill’s progression through the legislative stages to assess the implications and preparedness for when the Bill becomes law and it is advisable that CSPs and the prescribed agencies under the 2011 Act have discussions on the legal implications of the judgement.

The judgement has implications for both CSPs and law enforcement. As a matter of priority, CSPs need to:

  • Obtain legal advice on the impact of the judgement on current obligations.

  • Conduct a Preparedness Audit.

  • Review existing policies, procedures and system capabilities to ensure they are fit for the future.

  • Review the legal basis in which state agencies may seek to access data outside of the Communications (Retention of Data) Act 2011.

  • Engage with An Garda Síochána regarding referencing the specific section [section 6 (1) (a), (b) or (c)] when issuing disclosure requests.

What is the status of Dwyer's legal challenge?

The State is appealing the High Court's decision which found part of the legislation allowing mobile phone metadata to be retained and accessed in the investigation of serious crimes breached EU law and the European Convention on Human Rights. The State is contending there were errors in the existing case law from the Court of Justice of the EU.

In December 2019, the Supreme Court has reserved its decision in the State's appeal and we are awaiting the outcome. Dwyer's appeal against his conviction is on hold pending the outcome of these proceedings.

During this period of legal uncertainty, CSPs and law enforcement agencies should continue to promote the standards of co-operation set out in the 2011 Memorandum of Understanding and keep a watching brief on this case and the progress of the Communications (Retention of Data) Bill 2017 (“the Bill”)

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