In his delivery of the Supreme Court’s judgement, Chief Justice Clarke stated that the majority view (there was one dissenting judgement) among the seven judges was that any questions relating to European law in this area should be referred to the European Court of Justice (ECJ). This was the main issue of dissention - whether or not the Supreme Court could make a final determination on issues before the court without reference to the ECJ.
In summary the Supreme Court identified three areas where clarification of European law was necessary in order for a proper decision on Mr. Dwyer’s appeal to be made:
(a) 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
(b) The criteria whereby an assessment can be made as to whether any access regime to such data can be found to be sufficiently independent and robust and
(c) Whether a national court, should it find that national data retention and access legislation is inconsistent with European Union law, can decide that the national law in question should not be regarded as having been invalid at all times but rather can determine invalidity to be prospective only.
The state’s appeal to the Supreme Court will not be finally decided until the ECJ has ruled on the questions referred to it.
Observations and Findings of Fact by the Supreme Court on Key Issues
While the Supreme Court did not adjudicate on the issues of “universal retention” and “access regimes”, the majority and dissenting judgements made some very interesting observations and findings of fact, especially in the area of balancing of rights.
One of the main points in the judgement, is that in the absence of a general data retention regime, the objective of the prevention, investigation, detection and prosecution of serious crime would be significantly compromised. In this regard the Court highlighted that the detection of certain categories of serious crime and their prosecution are increasingly influenced by evidence such as telephony metadata and crimes similar to the murder with which Graham Dwyer was charged, rarely involve any circumstances which could reasonably be known to investigating authorities in advance and which could lead to prior suspicion. In this context some such cases have only been solved because of the availability of telephone metadata.
Furthermore, the Court stated that cases involving the grooming of children can often require similar methods for investigation and prosecution. In a significant number of such cases, it would not be possible to detect, let alone adequately prosecute, the perpetrator without access to telephony data as provided for in the Communications (Retention of Data) Act 2011. In other cases, the ability to mount a successful prosecution would be severely impaired. Likewise serious crimes against women, children and other vulnerable persons will not be capable of detection or successful prosecution. In particular the Court found that:
(i) Alternative forms of data retention, by means of geographical targeting or otherwise, would be ineffective in achieving the objective of the prevention, investigation, detection and prosecution of at least certain types of serious crime, and further, could give rise to the potential violation of other rights of the individual;
(ii) The objective of the retention of data by any lesser means than that of a general data retention regime, subject to the necessary safeguards, is unworkable; and
(iii) The objective of the prevention, investigation, detection and prosecution of serious crime would be significantly compromised in the absence of a general data retention regime.
Balancing of Rights
The judgement also offers some clear observations in relation to the balancing of rights. In particular it highlights that the European Court of Human Rights (ECHR) has held that states have an obligation to conduct an effective investigation into alleged wrongdoing committed against victims of crime who have suffered infringements under various articles of the convention on human rights.
The ECHR has further held that such investigations must be effective in the sense that they should, in principle, be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. Consequently, the victims of such crimes need to be kept very much in mind in determining any appropriate balance, especially in the context of rights which will be impaired to a very significant degree if it should prove impossible to detect or successfully prosecute the perpetrators of crimes against them.
The ECJ are expected to reply to these questions before the end of the year.