Dwyer v The Commissioner of an Garda Síochána

• Jurisdiction: Ireland
• Judge: Clarke C.J.,MacMenamin J.,O'Malley J.
• Judgment Date: 28 May 2019
• Neutral Citation: [2019] IESCDET 108
• Court: Supreme Court
• Date: 28 May 2019

[2019] IESCDET 108

THE SUPREME COURT

DETERMINATION

Clarke C.J.

MacMenamin J.

O'Malley J.

BETWEEN

GRAHAM DWYER

PLAINTIFF

AND

THE COMMISSIONER OF AN GARDA SÍOCHÁNA THE MINISTER FOR COMMUNICATIONS ENERGY AND NATURAL RESOURCES IRELAND

AND

THE ATTORNEY GENERAL

DEFENDANTS

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES

RESULT: The Court grants leave to the Defendants to appeal to this Court directly from the High Court.

REASONS GIVEN:

ORDER SOUGHT TO BE APPEALED

COURT: High Court

DATE OF ORDER: 11th January, 2019

DATE OF PERFECTION OF ORDER: 21st January, 2019

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 8th February, 2019 AND WAS IN TIME.

General Considerations

1 The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33rd Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions [2017] IESCDET 134 and in a unanimous judgment of a full Court delivered by O'Donnell J. in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. The additional criteria required to be met in order that a so-called “leapfrog appeal” direct from the High Court to this Court can be permitted were addressed by a full panel of the Court in Wansboro v Director of Public Prosecutions [2017] IESCDET 115. Accordingly it is unnecessary to revisit the new constitutional architecture for the purpose of this determination.

2 The application for leave filed, and the respondent's notice thereto, are published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties in detail.

Background

3 The plaintiff has been tried for and convicted of the murder in 2012 of Ms. Elaine O'Hara. Part of the evidence deployed against him in the trial was obtained by gardaí on foot of certain provisions of the Communications (Retention of Data) Act 2011.

4 It is common case that the Act, which provides for the retention of and access to telecommunications metadata, was enacted to give effect to Directive 2006/24/EC. However, in April 2014 the Court of Justice of the...