As clarity is sought from EU court, many Garda probes will remain stifled
ANY worries that sadistic killer Graham Dwyer will taste freedom in the near future have abated for now. The Supreme Court’s referral of its judgment on his phone data retention case to the Court of Justice for the Euroby pean Union (CJEU) has kicked that can down the road.
Some Irish lawyers believe it could be anywhere between 12 months and two years before a decision is made. Official figures put the average waiting time for processing such referrals at 15 months in 2016.
This means Dwyer’s separate criminal appeal, which was already on hold pending the outcome of his challenge to Ireland’s data retention laws, will be delayed further.
Dwyer wants to be able to dispute the admissibility of the call data records that were crucial to proving he murdered childcare worker Elaine O’Hara. His cause was helped a declaration by the High Court in December 2018 that the 2011 Communications Act, the legislation under which gardaí accessed the data, contravened EU law.
The State appealed to the Supreme Court, arguing personal protection and national security considerations outweighed Dwyer’s privacy and data protection rights.
The Supreme Court has now ruled but will not finalise its judgment until it receives clarity from the CJEU on three areas where the court says EU law is unclear.
Dwyer will not have taken much comfort from the preliminary views expressed on
Dwyer’s criminal appeal, which was already on hold, will be delayed further
behalf of the court by Chief Justice Frank Clarke.
Although Mr Justice Clarke found the regime under which gardaí access retained phone data was not of a standard which conforms with EU law, there was a sting in the tail for Dwyer.
The Chief Justice was also of the opinion the court may well have the jurisdiction to determine that any finding of invalidity should not apply to events which occurred prior to that finding being made.
One of the questions the CJEU will be asked to answer is whether it agrees with the Chief Justice on this.
If it does, that would mean any cases where data was obtained under the 2011 Act prior to December 2018 could remain safe from challenge.
In all of the focus on the implications for Dwyer’s criminal appeal, it can easily be forgotten his proceedings have much wider implications.
As Mr Justice Clarke pointed out in his judgment, the investigation and prosecution of serious crimes, not least those against women, children and vulnerable persons, would, in many cases, be impossible without access to such data.
But since the 2018 High Court ruling, gardaí have largely had to do without it due to fears subsequent prosecutions would be open to challenge in the courts.
It is understood access requests are now only being pursued in cases where there is an imminent risk to life.
In the meantime, hundreds of investigations into serious crimes have been stifled.
During the Supreme Court appeal barrister Seán Guerin, for the State, summed up the situation. He said the consequences of not having data for the investigation and prosecution of serious crime, including child sex abuse, were “stark” and there was “no alternative” for accessing retained data.
It now seems the referral to the CJEU will act as a double-edged sword.
While it will assist the Supreme Court in finalising its judgment, the introduction of new legislation to bring Irish laws into compliance with Europe will be delayed until after the CJEU clarification comes, whenever that will be.
Ultimately, there could end up being a gap of three years or more where investigators lack the necessary legislation to safely obtain phone data.
The outgoing Government’s response to the crisis has been somewhat lethargic. Back in December 2018, Justice Minister Charlie Flanagan admitted it was clear the current legal framework needed to be modernised.
He said a new Data Retention Bill was at an advanced stage of being drafted and was on a priority legislation list. Some 14 months on the bill has yet to be published. The Department of Justice now says it is “well advanced” and that officials are “working closely” with the Attorney General on it.
But the opportunity to swiftly solve the problem was missed as any new legislation will now need to take account of the outcome of the CJEU referral.