Justice Peter Charleton argued that the Supreme Court should decide for itself whether Irish telecommunications data rules were compatible with fundamental rights, rather than refer questions to the Court of Justice of the European Union (CJEU). His dissent was delivered on 24 February 2020 in Graham Dwyer’s appeal concerning phone metadata used in his murder trial.
The judgment identifies Dwyer as plaintiff/respondent and the Commissioner of An Garda Síochána, the Minister for Communications, Energy and Natural Resources, Ireland and the Attorney General as defendant/appellants. The source is Charleton’s dissenting opinion; it does not set out the Supreme Court’s final disposition of the appeal. Charleton gave two reasons for opposing a CJEU referral: he considered proportionality a matter national courts could determine, and questioned the CJEU’s competence in a criminal case about excluding evidence.
Charleton wrote that data analysis at the criminal trial had shown one phone belonged to Dwyer and that his employer had given him the other. He described the phones as abandoned. He maintained that Irish law allowed stored communications metadata to be accessed for criminal investigations subject to legal safeguards, including reasonable suspicion, and that the prosecution had to establish the legality of access before such evidence could be admitted unless formally admitted. He distinguished stored metadata from real-time interception, which he said required prior authorisation by a High Court judge.
The dissent argued that Irish courts could apply a four-part proportionality test: whether a measure pursued a legitimate goal, was suitable to achieve it, was the least restrictive equally effective option, and properly balanced competing interests. Charleton said the Court had sufficient evidence to rule on whether the High Court decision should be reversed or upheld. The dissent itself makes that argument; it does not record the Supreme Court’s final ruling on that question.
To illustrate the investigative value he attributed to stored phone data, Charleton recounted its use in investigations into the 1996 murder of journalist Veronica Guerin and the 1998 Omagh bombing. These were examples from other cases, not findings about the Dwyer appeal. He noted that the trial court’s Omagh findings had later been reversed on unrelated grounds.
The document is expressly headed as a dissent. It records Charleton’s reasons for opposing referral, but does not itself establish the majority’s reasoning or the final outcome of the appeal.