Dwyer v Commissioner of an Garda Síochána

JurisdictionIreland
JudgeMr. Justice Tony O'Connor
Judgment Date11 January 2019
Neutral Citation[2019] IEHC 48
CourtHigh Court
Docket Number[2015 No. 351 P]
Date11 January 2019
BETWEEN
GRAHAM DWYER
PLAINTIFF
AND
COMMISSIONER OF AN GARDA SÍOCHÁNA, MINISTER FOR COMMUNICATIONS, ENERGY AND NATURAL RESOURCES, IRELAND

AND

ATTORNEY GENERAL
DEFENDANTS

[2019] IEHC 48

[2015 No. 351 P]

THE HIGH COURT

Declaration – Stay – Communications Retention of Data Act 2011 – Parties seeking a declaration with a stay on the effect of the declaration – Whether s. 6(1)(a) of the Communications Retention of Data Act 2011 is inconsistent with Article 15(1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002

Facts: The High Court, at para. 5.23 of the principal judgment delivered in the proceedings on 6th December, 2018, referred to its circulation of draft declarations to the parties and asked for submissions. Written outline submissions were exchanged and the Court was furnished with a book of authorities before hearing oral submissions. Counsel for the parties agreed that the concerns of their respective clients could be accommodated by an agreed form of declaration with a stay on the effect of the declaration pending the determination of the proposed appeal by the defendants, Commissioner of An Garda Síochána, Minister for Communications, Energy and Natural Resources, Ireland and Attorney General. It was indicated that the defendants would apply pursuant to Article 34.5 of the Constitution for a “leap frog appeal” to the Supreme Court. Counsel clarified that the terms of the final order was a matter for the Court. In view of the question posed in the principal judgment about the practical purpose of making a declaration pursuant to s. 5 of the European Convention on Human Rights Act and the focus at all times by the plaintiff, Mr Dwyer, on his outstanding appeal to the Court of Appeal from his conviction, it was convenient for the Court to make a few further observations given the limits to the agreed declaration sought.

Held by O’Connor J that he would make “a declaration that s. 6(1)(a) of the Communications Retention of Data Act 2011, insofar as it relates to telephony data, as defined in Part 1 of Schedule 2 of the Act, and which is retained on a general and indiscriminate basis as provided for in s. 3 of the Act, is inconsistent with Article 15(1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector, read in light of Article 7, 8 and 52(1) of the Charter of Fundamental Rights of the European Union.”

O’Connor J held that the effect of the declaration be stayed from the date of perfection of the order for such period as provided for in Order 58 or Order 86A of the Rules of the Superior Courts for the lodging of an appeal, and in the event of such an appeal being lodged within that period, that the effect of the declaration be further stayed until the first hearing for directions before the Court of Appeal or the Supreme Court, and that any further application in relation to a further stay be made to the Court of Appeal or the Supreme Court.

Judgment approved.

EX TEMPORE JUDGMENT of Mr. Justice Tony O'Connor delivered on the 11th day of January, 2019
Introduction
1

At para. 5.23 of the principal judgment delivered in these proceedings on 6th December, 2018, [2018] IEHC 685, (‘ principal judgment’), the Court referred to its circulation of draft declarations to the parties and asked for submissions. Written outline submissions were exchanged earlier this week and the Court was furnished with a book of authorities before hearing oral submissions this morning. That process was useful, not least because Counsel for the parties agreed that the concerns of their respective clients could be accommodated by an agreed form of declaration with a stay on the effect of the declaration pending the determination of the proposed appeal by the Defendants.

2

It was indicated that the Defendants will apply pursuant to Article 34.5 of the Constitution for what is colloquially called a ‘leap frog appeal’ to the Supreme Court soon. Counsel correctly clarified that the terms of the final order was indeed a matter for the Court.

3

In view of the question posed in the principal judgment about the practical purpose of making a declaration pursuant to s. 5 of the European Convention on Human Rights Act and the focus at all times by the Plaintiff on his outstanding appeal to the Court of Appeal from his conviction, it is convenient for the Court to make a few further observations given the limits to the agreed declaration now sought.

Declaratory Relief
4

A declaration can be a private and a public law remedy. Section 155 of the Chancery (Ireland) Act 1867 (repealed by the Statute Law Revision (No. 2) Act 1893) (‘ 1893 Act’) granted jurisdiction to...

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3 firm's commentaries
  • Government publishes Legislation Programme for Autumn 2019
    • United States
    • LexBlog United States
    • 18 Septiembre 2019
    ...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 to be re......
  • Government publishes legislation programme for Autumn 2021
    • Ireland
    • LexBlog Ireland
    • 29 Septiembre 2021
    ...Data’, which found that many features of the 2011 Act are precluded by EU law. In Dwyer v Commissioner of An Garda Siochána [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 to be retained on ......
  • Government publishes legislation programme for Summer 2019
    • United States
    • LexBlog United States
    • 3 Abril 2019
    ...2011 Act are precluded by EU law. The Irish High Court also recently held, in Dwyer v Commissioner of An Garda Siochána [2018] IEHC 685; [2019] IEHC 48, that certain sections of the 2011 act are incompatible with EU law. Other Legislation Online Safety and Media Regulation Bill – The progra......

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