The Supreme Court has decided that it must seek guidance from the Court of Justice of the European Union (CJEU) before it can determine the State’s appeal over Ireland’s phone data retention law. The appeal concerns whether the Communications (Retention of Data) Act 2011 complies with EU law. The court did not decide the Act’s validity or whether any telephony data used in Graham Dwyer’s criminal trial should have been admitted.
The State appealed a High Court declaration that section 6(1)(a) of the 2011 Act was inconsistent with Article 15(1) of the EU’s 2002 electronic communications privacy directive. That section allows a senior Garda member to request retained data for the prevention, detection, investigation or prosecution of a serious offence. The Act also requires service providers to retain specified fixed and mobile telephony data for two years.
The Supreme Court identified three questions requiring clarification from the CJEU. They concern whether untargeted retention of certain metadata for a fixed period can ever comply with EU law; what standards make a data access process sufficiently independent and robust; and whether a national court can limit the effect of a finding that domestic law conflicts with EU law to the future.
The judgment describes the access process then in place as involving internal Garda review, rather than prior review by a court or independent administrative body. The Chief Justice said he would be inclined to consider the access safeguards inadequate, but concluded that the EU law questions were not clear enough for the Supreme Court to decide the appeal without a reference. His views on that issue were not a final ruling on the Act’s validity.
The court also recorded evidence about the investigative value of retained data, including its use in serious crime cases. It accepted evidence that targeted retention or other alternatives could be ineffective in some investigations. Those observations formed part of the judgment’s discussion of the questions to be referred; they did not resolve the appeal’s legal issues.
The Chief Justice proposed that the court make the reference and invite the CJEU to use an expedited procedure. The parties were to have seven days to comment on the wording of a separate reference document, with comments confined to detail and precise wording. The court proposed finalising and transmitting that document after considering any observations. The judgment did not itself set out the final questions or state that the CJEU had received the reference.
The proceedings arose from Dwyer’s challenge to the legal basis for accessing telephony data used in his murder trial. The judgment said his appeal against conviction was pending and that it could not properly progress until the data law issues were resolved. The Supreme Court’s decision addressed the need for EU guidance; it did not determine the criminal appeal or the safety of the conviction.