Case hearing legality of Graham Dwyer phone data use begins in EU court

He subsequently won a High Court challenge in 2018 to the validity of the law under which his phone data was seized – a ruling he hopes will bolster a separate appeal against his conviction.

However, the State appealed to the Supreme Court, which in turn referred key legal questions to the Court of Justice of the European Union (CJEU).

Today, a 15-judge Grand Chamber of the CJEU, sitting in Luxembourg, will hear submissions from lawyers for the State and Dwyer in relation to six questions it has been asked to consider. The CJEU’s conclusions will allow the Supreme Court to finalise its ruling on Dwyer’s challenge.

Last year, Chief Justice Frank Clarke gave the court’s preliminary view that the data access system used by gardaí under the Communications (Retention of Data) Act 2011 was not sufficiently robust to meet the standards laid down by the CJEU. However, Mr Justice Clarke also signalled the Supreme Court’s view that a system of universal but limited retention of data was not, in and of itself, incompatible with EU law.

He also said he believed an Irish court making a finding that an Irish law was inconsistent with EU law had the power to decide any such invalidity was not retrospective –
essentially that it could apply from the date of the High Court ruling. Questions in relation to both issues are to be considered by the CJEU.

The Supreme Court specifically wants to know if it is entitled to limit the temporal effect of any declaration it ends up making if a failure to do so would result in “chaos and damage to the public interest”.

Should the CJEU find the Supreme Court does not have to apply its findings retrospectively, it would deal a significant blow to Dwyer’s chances of mounting a successful criminal appeal.

One of his main grounds of appeal against his conviction is that the judge in his trial made an error by allowing phone data to be used in evidence against him.

But this would more or less fall away if the finding of invalidity is not retrospective.

Oral submission will be made to the CJEU by the State’s legal team, led by Attorney General Paul Gallagher SC and Seán Guerin SC, and Dwyer’s lawyers, led by Remy Farrell SC and Ronan Kennedy SC. The State’s lawyers are due to appear via video link from Dublin, but Dwyer’s team will be in the court in person.

Oral submissions will also be made by lawyers from some other EU states with an interest in the issues at stake.

The parties are then expected to be questioned by an Advocate General, a magistrate who assists the CJEU, and by the judges of the court.

Normally in such cases, the Advocate General renders a non-binding opinion to the CJEU in the weeks after the hearing before the court itself produces its findings.

Observers say it could be December or January at the earliest before the CJEU’s findings are delivered.