Dwyer v Commissioner of an Garda Síochána

JudgeO'Connor Tony J.
Judgment Date06 December 2018
Neutral Citation[2018] IEHC 685
CourtHigh Court
Docket Number[2015 No. 351 P]
Date06 December 2018

[2018] IEHC 685


O'Connor Tony J.

[2015 No. 351 P]




Information & data protection – Electronic communications – Surveillance – State surveillance – Domestic law and interaction with EU & ECHR – Plaintiff contending his rights infringed - Communications (Retention of Data) Act 2011

Facts: The plaintiff had been convicted of murder following a trial in which evidence was adduced in respect of his mobile telephony data. The data was supplied under the Communications (Retention of Data) Act 2011 (“2011 Act”). The plaintiff had sought to appeal his conviction, which was pending. At the same time, he applied in the current proceedings for relief arguing inter alia that the 2011 Act was incompatible with EU legislation and arts 8 & 10 of the European Convention on Human Rights. The 2006 EU Directive the 2011 Act implemented had been declared invalid in an earlier ruling by the CJEU.

Held by O’Connor J that certain provisions of the 2011 Act were in contravention of both EU law as well as the ECHR. This finding was made on the basis that there was no prior review by a Court or other independent authority to regulate access to the data. Further, insufficient legislative guarantees had been provided to ensure that abuse of the access regime was prevented. Declining to suspend the declaration of incompatibility, O’Connor J stated that assessing the retrospective effect of the declaration was to be done on a case by case basis. In the instant case, the trial judge was best placed to consider the admission of the evidence in question.

1. Introduction

In what circumstances does a democracy tolerate State mandated electronic surveillance of every citizen who uses a telephone device? To what extent is the State bound by European Union law ( ‘EU law’) and the European Convention on Human Rights ( ‘ECHR’) when introducing or applying domestic law which provides for mass electronic surveillance? What effect have the ‘ dispositifs’ (judgments by way of communications from the European Court of Justice ( ‘ECJ’)) on Courts of other Member States on applying EU law in Ireland?


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9 cases
  • DPP v Dwyer
    • Ireland
    • Court of Appeal (Ireland)
    • 24 Marzo 2023
    ...92 . On 6 th December 2018, the High Court (O'Connor J.) gave judgment in the case of Dwyer v. Commissioner of An Garda Síochána & Ors [2018] IEHC 685 and concluded that sections 3 and 6(1)(a) of the 2011 Act are incompatible with the 93 . The decision in Dwyer v. Commissioner of An Garda S......
  • Dwyer v The Commissioner of an Garda Síochána
    • Ireland
    • Supreme Court
    • 24 Febrero 2020
    ...compatible with EU law. For the reasons set out in his judgment in these proceedings ( Dwyer v. Commissioner of An Garda Síochána & ors [2018] IEHC 685), O'Connor J. granted a declaration that s. 6(1)(a) of the 2011 Act was inconsistent with Article 15(1) of an earlier EU Directive, Direct......
  • DPP v Doherty
    • Ireland
    • Court of Appeal (Ireland)
    • 31 Mayo 2019
    ...In addition, we have taken account of the High Court's recent decision in Dwyer v The Commissioner of An Garda Siochána, Ireland & Ors [2018] IEHC 685. The Dwyer decision declared ss 3(1) and 6(1) of the Act of 2011 to be incompatible with EU law, in effect as being inconsistent with and fa......
  • Defender Ltd v HSBC Institutional Trust Services (Ireland) Ltd
    • Ireland
    • Court of Appeal (Ireland)
    • 16 Diciembre 2019
  • Request a trial to view additional results
1 firm's commentaries
  • Government publishes Legislation Programme for Autumn 2019
    • United States
    • LexBlog United States
    • 18 Septiembre 2019
    ...Data’, which found that many features of the 2011 Act are precluded by EU law. In Dwyer v Commissioner of An Garda Siochána [2018] IEHC 685; [2019] IEHC 48, the High Court made a declaration that section 6(1)(a) of the 2011 Act is inconsistent with EU law, insofar it allows telephony data t......
2 books & journal articles
  • Irish Criminal Trials and European Legal Culture: A Backdrop to Brexit
    • United Kingdom
    • Journal of Criminal Law, The No. 85-2, April 2021
    • 1 Abril 2021
    ...at transposing it into domestic law in the guise of the Criminal Justice (Victims of Crime) Act 2017.36 28. Dwyer v Garda Commissioner [2018] IEHC 685 (O’Connor J).29. Dwyer v Garda Commissioner [2019] IESCDET 108.30. Dwyer v Garda Commissioner [2020] IESC 4.31. DPP v JC [2015] IESC 31; [20......
  • Editorial
    • Ireland
    • Hibernian Law Journal No. 19-2020, January 2020
    • 1 Enero 2020
    ...discussion of the EU law and the ECHR law position, see also the High Court judgment, Dwyer v Commissioner of An Garda Síochána and ors [2018] IEHC 685. 4 Minister for Justice and Equality v Celmer [2019] IESC 80. See also the comprehensive judgment of the High Court in Minister for Justice......

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