A European court will ultimately decide key issues which will have a bearing on notorious killer Graham Dwyer’s appeal against his conviction for murder.
seven-judge Supreme Court today made a ruling which in one part helped Dwyer’s appeal, but in another part undermined it significantly.
The court upheld a 2018 High Court ruling that the manner in which gardaí accessed retained phone data did not meet European standards.
But delivering its decision in Waterford, Chief Justice Frank Clarke also signalled its view that the High Court finding should not be considered to be retrospective.
In other words, even though the law was struck down, the Supreme Court’s view is that it would be appropriate to consider it valid up until the date of the High Court judgment.
The opinion is a significant blow to Dwyer’s bid to overturn his conviction as one of his main grounds of appeal is that the judge in his trial made an error by allowing phone data be used in evidence against him.
The phone data evidence was a crucial part of the prosecution’s case that Dwyer murdered childcare worker Elaine O’Hara in 2012.
Mr Justice Clarke said the Supreme Court’s decision was a preliminary one and would be referred to the Court of Justice for the EU (CJEU) due to the “difficult issues of European law involved”.
The Supreme Court will finalise its ruling after the CJEU has considered the referral.
Today’s decision came after the State appealed a December 2018 High Court ruling that certain provisions of the 2011 Communications Act contravened EU law and the European Convention on Human Rights.
Under the Act, gardaí obtained phone data evidence for Dwyer’s phone and others attributed to him and his victim.
Dwyer successfully challenged the legality of these provisions in the High Court and planned to use that ruling to bolster his separate challenge to his conviction in the Court of Appeal.
The main issue highlighted by the High Court was a provision which allowed gardaí of chief superintendent rank and above to request user data from providers.
Mr Justice Tony O’Connor found the data retention regime was general and indiscriminate, with no prior review by a court or an independent body and no adequate legislative guarantees against abuse of such data.
At the outset of today’s ruling, Mr Justice Clarke said it was important to emphasise the case before it was not about Dwyer’s criminal appeal, but whether aspects of the Act were valid as a matter of European law.
He said a system of “universal but limited” retention of phone data was not, in and of itself, incompatible with EU law.
The Chief Justice said the investigation and prosecution of serious crimes, not least those against women, children and vulnerable persons, would, in many cases, be impossible without access to such data.
However, upholding the High Court ruling, he said there must be “a particularly robust access system in place” which conforms with EU case law.
“There must be independent prior permission given for such access. I express the view that the Irish access regime does not meet that standard, not least because of the fact that, albeit access permission is granted by a separate unit within the force, such permission is nonetheless granted from within An Garda Síochána so that there is insufficient independent review in advance of the need for access,” he said.
The Chief Justice said the Supreme Court had also considered the question of whether, having found an Irish law was inconsistent with EU law, the court concerned has the power to also decide that any such invalidity “should only be prospective from the date of its judgment”.
“I express the view that national courts do have such power. I also express the view that, in the event that a national court has such power, it would be appropriate to exercise it in this case in favour of not regarding the relevant aspects of the 2011 Act as having been invalid until the date of this judgment,” he said.
“I do so principally because the 2011 Act was actually enacted by the Oireachtas precisely because it was required by European Union law as it appeared at the time,” the Chief Justice said.
He also noted that Ireland had come under pressure to introduce the law in the first place due to successful infringement proceedings brought by the European Commission.
The Supreme Court will not finalise its ruling until its referral has been considered by the CJEU.
Mr Justice Clarke said the court was obliged under EU treaties and case law to make a referral to the CJEU on an issue of EU law unless there was already a “clear” answer to the issue.
In addition to the Chief Justice, the seven-judge panel was also made up of Supreme Court judges Donal O’Donnell, William McKechnie, John MacMenamin, Peter Charleton, Iseult O’Malley and Mary Irvine.
Mr Justice Charleton was the only judge who felt the court’s findings should not be referred to the CJEU.
Dwyer (47) was jailed for life in 2015 for the murder of Ms O’Hara (36), who was last known to be alive on August 22, 2012.
Her remains were discovered at Killakee in the Dublin Mountains 13 months after her disappearance. Dental records had to be used to identify her.
The Central Criminal Court heard they met online on a website for people with alternative sexual tastes and that Dwyer later stabbed her to death for his own sexual gratification. He has always denied killing her.
His appeal against his conviction had been on hold pending the outcome of the Supreme Court case. This will now be further delayed due to the referral to the CJEU.