The Government may be disappointed with the decision of the European Court of Justice on data access, but it cannot be surprised by it. In upholding the challenge taken by convicted murderer Graham Dwyer over the phone evidence used to convict him, the court was following the guidance of its advocate general, who came to the same conclusion last November. Indeed, as far back as 2014, the State was on notice that there were serious flaws in its data retention laws – flaws which, if left unaddressed, would have repercussions in the justice system.
In 2015, Dwyer was sentenced to life in prison for the murder of Elaine O'Hara in 2012. Mobile phone data was an important part of the case against him, and he later challenged a 2011 law under which that data was accessed and retained. The High Court ruled in 2018 that the Irish law breached EU law because it allowed for general retention of data without necessary safeguards or oversight. The Supreme Court put the striking-down of the law on hold pending yesterday's decision from Luxembourg, which again rejects Ireland's general and indiscriminate retention of phone metadata.
There are two separate issues at play here. Dwyer has won a legal victory, but it does not mean that he will succeed in his separate appeal against his conviction. The Director of Public Prosecutions is likely to point to a recent Supreme Court decision which makes clear that otherwise inadmissible evidence can be used in court if it was obtained on foot of an inadvertent breach of a constitutional right. Other evidence put forward at his trial will also have to be considered.
The second issue concerns the State’s failure to legislate to fix the problem the European court warned it about eight years ago: that long retention periods, weak oversight and too-broad access to retained data meant the Irish regime was in breach of EU law. Reacting to yesterday’s decision, the Department of Justice said it would “bring clarity” to the area. The issue has been perfectly clear for some time. The problem has been the failure of government to deal with it.