Dwyer v The Commissioner of an Garda Síochána

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 24 February 2020
• Neutral Citation: [2020] IESC 4
• Court: Supreme Court
• Docket Number: [Record No: 2019/18]
• Date: 24 February 2020

BETWEEN/

GRAHAM DWYER

PLAINTIFF / RESPONDENT

AND

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

AND

THE ATTORNEY GENERAL

DEFENDANTS / APPELLANTS

[2020] IESC 4

Clarke C.J.

O'Donnell J.

McKechnie J.

MacMenamin J.

Charleton J.

O'Malley J.

Irvine J.

[Record No: 2019/18]

THE SUPREME COURT

European Union law – Communications (Retention of Data) Act 2011 – Validity – Appellants seeking to appeal to the Supreme Court against the finding of the High Court – Whether the Communications (Retention of Data) Act 2011 was valid

Facts: The High Court (O’Connor J) granted a declaration that s. 6(1)(a) of the Communications (Retention of Data) Act 2011 was 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. The defendants/appellants, the Commissioner of An Garda Síochána, the Minister for Communications, Energy and Natural Resources, Ireland and the Attorney General (the State), appealed to the Supreme Court against the finding of the High Court. The net issue for the Supreme Court was confined to the question of the validity or otherwise of the 2011 Act, having regard to the 2002 Directive properly interpreted in the light of the Charter of Fundamental Rights of the European Union. The reason why the plaintiff/respondent, Mr Dwyer, had maintained these proceedings was that it was intended that they would, if successful, form part of a contention at his criminal appeal that relevant telephony data should not have been admitted in evidence and thus raise a question over the safety of his conviction.

Held by Clarke CJ that there were three key areas of European Union law where the law was not acte clair but where clarification of that law was necessary to reach a proper decision on this appeal: (a) whether a system of universal retention of certain types of metadata for a fixed period of time is never permissible irrespective of how robust any regime for allowing access to such data may be; (b) the criteria whereby an assessment can be made as to whether any access regime to such data can be found to be sufficiently independent and robust; and (c) whether a national court, should it find that national data retention and access legislation is inconsistent with European Union law, can decide that the national law in question should not be regarded as having been invalid at all times but rather can determine invalidity to be prospective only.

Clarke CJ held that it was necessary that the Supreme Court refer questions to the Court of Justice of the European Union (CJEU) under the provisions of Article 267 of the Treaty on the Functioning of the European Union. Clarke CJ proposed that the Court should make such a reference in the terms set out in a separate document which he would circulate along with the delivery of this judgment. Clarke CJ proposed that the parties be given a period of seven days to make observations on the text of that document. In that context, Clarke CJ emphasised that the decision which he proposed should be made by the Supreme Court would definitively determine that there should be a reference and would also definitively determine the broad issues which require to be addressed in that reference. Clarke CJ held that the observations which he proposed that the parties should be permitted to make should, therefore, be confined to matters of detail or issues concerning the precise wording of the reference document. Clarke CJ proposed that the Supreme Court, having considered such observations as may be received within that timeframe, should then finalise the reference document and arrange for its transmission to the CJEU.

Questions referred to the CJEU.

Judgment of Mr. Justice Clarke , Chief Justice, delivered the 24th of February, 2020.

1. Introduction

1.1 The extent to which it is permissible for public authorities both to require private telephony service providers to retain certain data about communications and, potentially, to disclose that information to investigating and prosecuting authorities, has been a significant issue within the European Union for a number of years. In particular, a directive dealing with such matters, Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communication services or of public communications networks and amending Directive 2002/58/EC (“the 2006 Directive”), was found by the Court of Justice of the European Union (“CJEU”) to be in breach of rights guaranteed by the Charter of Fundamental Rights of the European Union (“the Charter”) and thus deemed invalid (see, Digital Rights Ireland Limited v. Minister for Communications, Marine and Natural Resources & Ors and Kärntner Landesregierung and Others (Joined Cases C-293/12 and C-594/12), ECLI:EU:C:2014:238, (“ Digital Rights“)).

1.2 Prior to the judgment in Digital Rights, Ireland had enacted the Communications (Retention of Data) Act 2011 (“the 2011 Act”) which was intended to transpose the obligations of Member States under the 2006 Directive into Irish law. The 2011 Act governs the retention of metadata by service providers and access to such data by national authorities in Ireland including, in particular, by An Garda Síochána.

1.3 Indeed, it is worth noting that Ireland was brought to the CJEU by the European Commission arising out of its failure to transpose the 2006 Directive (see, Commission v. Ireland ( Case C-202/09) [2009] E.C.R. I-203, ECLI:EU:C:2009:736) and was held by the Court to have failed to have fulfilled its obligations thereunder. The CJEU also subsequently rejected Ireland's challenge to the legal basis on which the 2006 Directive was enacted, which challenge was maintained on the grounds that the European Union did not enjoy competence in the area of criminal investigation and prosecution (see, Ireland v. Parliament & Council ( Case C-301/06) ECLI:EU:C:2009:68).

1.4 Subsequent to the annulment of the 2006 Directive in Digital Rights, questions emerged as to whether the 2011 Act was 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, 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 (“the 2002 Directive”). The 2002 Directive had been purportedly amended by the 2006 Directive but, on the annulment of the 2006 Directive, the 2002 Directive reverted to its original form as a matter of course.

1.5 The factual circumstances giving rise to these proceedings concerned the trial of the plaintiff/respondent (“Mr. Dwyer”) in respect of the murder of a Ms. O'Hara. In the course of that trial, reliance was placed by the prosecution on evidence which was said to link Mr. Dwyer to certain phones, to link him to telephony data which was said to identify the location at which those phones were on certain relevant occasions and, in respect of certain phones which were physically put in evidence, to link him to the content of certain communications which were found on those phones. As there is an appeal pending by Mr. Dwyer against his conviction, it is important to exercise considerable restraint in commenting on the facts of the case, save to the extent absolutely necessary to explain the specific issues which arise on this appeal. However, it is clear that the reason why Mr. Dwyer has maintained these proceedings is that it is intended that they will, if successful, form part of a contention at his criminal appeal that the relevant telephony data should not have been admitted in evidence and thus raise a question over the safety of his conviction.

1.6 As I understand it, no issue was raised at the criminal trial as to the manner in which the relevant telephony data was accessed by the investigating and prosecuting authorities, save to the extent that it is said that the entire legal basis on which that access was granted is invalid as a matter of European Union law. It follows that the argument which suggests that the relevant telephony data should not have been admitted in evidence and that his conviction is therefore unsafe first requires the establishment of that unlawfulness.

1.7 The defendants/appellants (“the State”) have appealed to this Court against the finding of the High Court. The net issue for this Court is, therefore, confined to the question of the validity or otherwise of the 2011 Act, having regard to the 2002 Directive properly interpreted in the light of the Charter.

2. The Grant of Leave

2.1 The State obtained leave to appeal as a result of a determination of this Court ( Dwyer v. The Commissioner of An Garda Síochána & ors [2019] IESCDET 108). The reasons for the grant of leave by this Court can be found in that determination.

2.2 In its application for leave, which was not opposed by Mr. Dwyer, the State suggested that the proceedings raised complex and novel questions of constitutional and EU law and would have significant implications for many others who are not parties to the case. The Court accepted that the question of the consistency of the provisions of the 2011 Act with EU law met the constitutional criteria for leave to appeal and leave was granted on the grounds set out in the notice of appeal appended to the State's application for leave.

2.3 On that basis, it is appropriate to turn in more detail to the issues which arise on this...