Law prof: Graham Dwyer unlikely to benefit from data ruling

It comes as the Supreme Court issued a provisional judgment on an appeal taken by the State against a High Court ruling favouring Dwyer that Ireland’s data- retention laws were “general and indiscriminate” and breached EU privacy laws.

Chief Justice Frank Clarke said:
• A universal system of data retention is, in principle, permissible and not, in itself, incompatible with EU law
• Any lesser means than a general regime is “unworkable” and the investigation and prosecution of serious crimes would be “significantly compromised” without general retention
• Current Irish regime for accessing data — which does not require independent prior approval — is not “sufficiently robust” to meet EU legal requirements
• He was of the view that if the Supreme Court declared the retention laws to be invalid, that such a declaration should only apply from that point on

The latter opinion from the Chief Justice would mean any such ruling could not be applied retrospectively to previous relevant cases, such as Dwyer’s conviction in 2015.

Chief Justice Clarke said he intended to refer key questions to the European Court of Justice (ECJ) for legal clarity, saying it was “impossible” to say EU law in certain respects was clear.

While recognising privacy rights under European law, Chief Justice Clarke said there were competing human rights, including the rights of victims and of vulnerable people, and that the courts had to balance these.

Five of his colleagues agreed with his preliminary views, with Mr Justice Peter Charleton dissenting. He believed the Supreme Court had sufficient evidence before it to rule on it.

Commenting, TJ McIntyre, associate professor of UCD School of Law, said:

The provisional judgment highlights how Graham Dwyer is unlikely to get any substantial benefit from the judgment.

He said in addition to a Supreme Court ruling in 2018 that evidence which was gathered lawfully at the time, but subsequently found to be unlawful, could still be accepted as evidence, the Chief Justice had indicated any declaration the law was invalid would be “prospective” — ie, from then on.

Shane Kilcommins, head of School of Law at the University of Limerick, said that on three key issues — the general data regime, access provisions, and the ‘invalidity declaration’ — the court had “favoured” the State and not Dwyer.

He said Dwyer had argued that general data retention breached his privacy rights and that retention should be limited and targeted. Mr Kilcommins said the Supreme Court believed this would be unworkable.

“The court favours the State on this and does not favour Dwyer,” he said, citing the Chief Justice’s reference to the State’s obligation to vindicate the rights of victims.

He said the court view on the system for accessing the data “favoured Dwyer”. But he said the Supreme Court had indicated any declaration the laws were invalid could not be applied to past events was “against Dwyer”.

Mr McIntyre, chair of Digital Rights Ireland, said he was “surprised” at the Chief Justice’s views on general retention.

“These are points addressed by the ECJ on three separate occasions and in each case, it said as a matter of principle and European law that a general and indiscriminate data regime was incompatible with the European Convention on Fundamental Rights,” he said.

He said the provisional finding on the lack of independent oversight of access was “the most significant” point and that the Department of Justice “should act now” and introduce its much-awaited legislation.

The department said yesterday that the draft legislation would “need to take account” of the outcome of the ECJ referral.