The High Court declared that a provision allowing the general and indiscriminate retention of telephony data was inconsistent with EU law, but stayed the declaration’s effect for a limited period to allow an appeal process to begin.
In an ex tempore judgment delivered on 11 January 2019, Mr Justice Tony O’Connor made the declaration in proceedings brought by Graham Dwyer against the Garda Commissioner, the Minister for Communications, Energy and Natural Resources, Ireland and the Attorney General. The court said the form of declaration and a stay had been agreed by counsel, while noting that the terms of the final order remained a matter for the court.
The declaration concerns section 6(1)(a) of the Communications Retention of Data Act 2011, insofar as it relates to telephony data defined in Part 1 of Schedule 2 and retained on a general and indiscriminate basis under section 3. The court declared that provision inconsistent with Article 15(1) of the EU ePrivacy Directive, read in light of Articles 7, 8 and 52(1) of the EU Charter of Fundamental Rights.
The judge said a separate declaration concerning section 3 was unnecessary because the declaration made incorporated the effect of the principal judgment that Dwyer sought for his appeal against his conviction. The court also declined to make a separate declaration under section 5(2) of the European Convention on Human Rights Act 2003.
The defendants had raised concerns about consequences for other investigations and prosecutions, including the risk that service providers might treat the principal judgment as a basis to stop retaining or destroy mobile telephony data. They also said they intended to appeal the court’s findings. The judgment records that the defendants indicated they would seek permission for a direct, or “leapfrog”, appeal to the Supreme Court.
The stay runs from perfection of the order for the period allowed under the relevant court rules to lodge an appeal. If an appeal is lodged within that period, the stay continues until the first directions hearing in the Court of Appeal or Supreme Court. Any further application for a stay is to be made to that appellate court. The judge did not stay the declaration until the appeal is decided, so the appellate court could consider the principal judgment and the question of a suspended declaration.
The court also recommended that the State pay Dwyer’s legal costs, with liberty for him to apply further if necessary. This judgment addressed the declaration and related orders; it did not decide Dwyer’s outstanding appeal against his conviction.