Director of Public Prosecutions v Smyth

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan,Mr Justice Maurice Collins
• Judgment Date: 17 June 2024
• Neutral Citation: [2024] IESC 22
• Court: Supreme Court

Between:

The People (Director of Public Prosecutions)

Respondent

and

Caolan Smyth

Appellant

[2024] IESC 22

O'Donnell C.J.

Barniville P.

Dunne J.

Charleton J.

O'Malley J.

Hogan J.

Collins J.

AN CHÚIRT UACHTARACH

THE SUPREME COURT

JUDGMENT of Mr. Justice Gerard Hogan delivered the 17th day of June 2024

Part I — Introduction

Background

1 . In the history of this Court few issues have proved to be as problematic as the question of whether unconstitutionally obtained evidence should be excluded. In this appeal we are again presented with this vexing issue albeit in a novel setting, given that in this instance the violation concerned is not a constitutional right as such, but rather a violation of Article 8 of the EU Charter of Fundamental Rights and Freedoms (“the Charter”). The disputed evidence in question was certain telephone metadata which had been accessed by members of a specialised unit of An Garda Síochána in June 2017 and November 2017 following data requests to that effect from the Gardai to the relevant service providers.

2 . Three fundamental questions arise on this appeal. First, was the telephone metadata in this case accessed by the Gardaí in a manner which amounted to a breach of Article 8 of the Charter? Second, do the exclusionary principles articulated in domestic constitutional law cases following the landmark decision of this Court in The People (Director of Public Prosecutions) v. JC [2015] IESC 31, [2017] 1 IR 417 apply to a breach of a Charter right by virtue of the EU law principles of equivalence and effectiveness? Third, if the JC principles do apply to the present case, does the application of those principles require the exclusion of this telephone metadata evidence? Since I am of the view that all three questions must be answered in the affirmative, I would accordingly allow the appeal of Mr. Smyth and set aside his conviction for attempted murder and possession of a firearm with intent to endanger life, contrary to s. 15(1) of the Firearms Act 1925 (as amended). This, however, is to anticipate somewhat. I propose first to set out the relevant facts in summary form and then proceed with an analysis of this legal issues.

3 . The detailed facts have already been set out in some detail in the lead judgment of Collins J. for the majority of the Court. I have the misfortune to disagree with that judgment so far as the disposition of Mr. Smith's appeal is concerned.

4 . I now turn to set out my reasons for my dissent in Mr. Smith's appeal. In view of the comprehensive analysis contained in the judgment of Collins J. for the majority it is perhaps sufficient for me to record that on 10th May 2017, a Mr. James Gately was shot in the neck at a filling station in Clonshaugh, Co. Dublin. Fortunately, he survived. There is little doubt but that the driver of a Lexus motor vehicle which had pulled up at the filling station just before the shooting was the person who had discharged the firearm and who had attempted to murder Mr. Gately. The driver of the Lexus vehicle then sped off after the shooting. The vehicle itself was later found burnt out near Dromiskin, Co. Louth.

5 . The case against Mr. Smyth rested upon a range of circumstantial evidence adduced by the prosecution before the Special Criminal Court to the effect that he was the driver of this vehicle. Thus, for example, the Lexus vehicle had been seen going to and from a particular address in Co. Meath – which address the prosecution contended could be linked to Mr. Smyth – on the day before and the day after the shooting. But the other key evidence was the mobile telephone evidence. This included evidence that a particular mobile telephone number had been used in connection with the shooting which was connected with Mr. Smith. The prosecution further contended that the cell sites used by that mobile telephone corresponded to the direction northwards taken by the Lexus vehicle before it was later discovered burnt out at Dromiskin.

6 . This is only a very brief summary of the nature of the circumstantial evidence tendered by the prosecution, further details of which are found in the detailed ruling of the Special Criminal Court in its ruling of 22nd October 2020 admitting this telephone metadata evidence; its subsequent judgment of 5th January 2021 convicting the accused, and the decision of Birmingham P. for the Court of Appeal of 28th July 2022 affirming the conviction: see [2022] IECA 182. It is not, however, really disputed but that the conviction of Mr. Smith cannot stand if this telephone metadata evidence is excluded. It is further accepted that if this were to occur that the conviction would have to be quashed.

Part II – The jurisprudence of the Court of Justice and the ruling of the Special Criminal Court on the telephone metadata issue

7 . Before proceeding further, it is first necessary to provide a brief summary of the relevant case-law of the Court of Justice. The starting point here is the judgment of that Court in Digital Rights Ireland Ltd. ( Case C-293/12, EU:C: 2014: 238). Here the Court held that the Data Retention Directive, Directive 2006/34/EC was invalid as it breached the guarantees as to privacy (Article 7) and Article 8 (data privacy) contained in the Charter. The Court was unsparing in its criticism of this legislative provision. Having described ([at 37]) the interference with these rights as “particularly serious”, the Court continued ([at 56–69]):

“56. As for the question of whether the interference caused by Directive 2006/24 is limited to what is strictly necessary, it should be observed that, in accordance with Article 3 read in conjunction with Article 5(1) of that directive, the directive requires the retention of all traffic data concerning fixed telephony, mobile telephony, Internet access, Internet e-mail and Internet telephony. It therefore applies to all means of electronic communication, the use of which is very widespread and of growing importance in people's everyday lives. Furthermore, in accordance with Article 3 of Directive 2006/24, the directive covers all subscribers and registered users. It therefore entails an interference with the fundamental rights of practically the entire European population.

57. In this respect, it must be noted, first, that Directive 2006/24 covers, in a generalised manner, all persons and all means of electronic communication as well as all traffic data without any differentiation, limitation or exception being made in the light of the objective of fighting against serious crime.

58. Directive 2006/24 affects, in a comprehensive manner, all persons using electronic communications services, but without the persons whose data are retained being, even indirectly, in a situation which is liable to give rise to criminal prosecutions. It therefore applies even to persons for whom there is no evidence capable of suggesting that their conduct might have a link, even an indirect or remote one, with serious crime. Furthermore, it does not provide for any exception, with the result that it applies even to persons whose communications are subject, according to rules of national law, to the obligation of professional secrecy.

59. Moreover, whilst seeking to contribute to the fight against serious crime, Directive 2006/24 does not require any relationship between the data whose retention is provided for and a threat to public security and, in particular, it is not restricted to a retention in relation (i) to data pertaining to a particular time period and/or a particular geographical zone and/or to a circle of particular persons likely to be involved, in one way or another, in a serious crime, or (ii) to persons who could, for other reasons, contribute, by the retention of their data, to the prevention, detection or prosecution of serious offences.

60. Secondly, not only is there a general absence of limits in Directive 2006/24 but Directive 2006/24 also fails to lay down any objective criterion by which to determine the limits of the access of the competent national authorities to the data and their subsequent use for the purposes of prevention, detection or criminal prosecutions concerning offences that, in view of the extent and seriousness of the interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter, may be considered to be sufficiently serious to justify such an interference. On the contrary, Directive 2006/24 simply refers, in Article 1(1), in a general manner to serious crime, as defined by each Member State in its national law.

61. Furthermore, Directive 2006/24 does not contain substantive and procedural conditions relating to the access of the competent national authorities to the data and to their subsequent use. Article 4 of the directive, which governs the access of those authorities to the data retained, does not expressly provide that that access and the subsequent use of the data in question must be strictly restricted to the purpose of preventing and detecting precisely defined serious offences or of conducting criminal prosecutions relating thereto; it merely provides that each Member State is to define the procedures to be followed and the conditions to be fulfilled in order to gain access to the retained data in accordance with necessity and proportionality requirements.

62. In particular, Directive 2006/24 does not lay down any objective criterion by which the number of persons authorised to access and subsequently use the data retained is limited to what is strictly necessary in the light of the objective pursued. Above all, the access by the competent national authorities to the data retained is not made dependent on a prior review carried out by a court or by an independent administrative body whose decision seeks to limit access to the data and their use to what is strictly necessary for the purpose of attaining the...