Dwyer unlikely to win freedom – but it’s clear we need to reform ‘illegal system of mass surveillance’
YESTERDAY’S Supreme Court decision in the Graham Dwyer case was much anticipated, to the point where the judgment was shown live on television. But viewers expecting a clear outcome might have been left nonplussed by the apparently inconclusive result.
Instead of making a final judgment, the Supreme Court decided to refer questions of law to the European Court of Justice – postponing the final outcome for at least several months and possibly a year or more.
The Chief Justice did, however, make several points in his judgment which, taken together, tell us a great deal about this case and the wider issues involved.
First, the decision reinforces the fact that an eventual ruling in favour of Dwyer is very unlikely to result in his conviction being overturned.
While the Chief Justice was keen to stress that this case was about the validity of a particular law – not the conviction itself – yesterday’s judgment relied heavily on the 2015 Supreme Court decision in a case known as JC which held that evidence obtained in breach of constitutional rights can still be used where the breach results from “developments in the law which occurred after the time when the relevant evidence was gathered”.
In the Dwyer case the investigation, arrest and charge took place over 2012-2013, before the first judgment of the European Court of Justice finding this kind of surveillance law invalid, making it very likely that the telephone evidence would still be admissible under the JC principle.
Indeed, the Chief Justice went further and suggested eliminating any retrospective effect, saying that if allowed by EU law, “any finding of invalidity should not apply to events which occurred prior to that finding being made”.
While the eventual result may not go this far, it is clear that the Supreme Court would like to avoid revisiting prior criminal trials which used evidence gathered under this law. This is very much a judgment which aims to avoid unscrambling the egg.
Second, as a more general matter the judgment confirms that Irish surveillance law is in urgent need of reform. Despite its anodyne title of “data retention”, this kind of surveillance involves what the Chief Justice describes as “universal retention of bulk undifferentiated data” – requiring telecoms providers to store one year’s worth of internet data and two years’ worth of telephone and location data on the entire population, without any suspicion and without any safeguards for particularly sensitive communications.
In its cases the European Court of Justice has found this to be “a wide-ranging and particularly serious interference” with fundamental rights.
However, it is clear that Irish law does not properly regulate this interference. In his judgment the Chief Justice stated that he is “inclined to conclude that the Irish regime does not provide adequate safeguards” against abuse, in particular because it allows gardaí to access these telephone and internet records without requiring permission from a judge or other independent body.
The analogy is with searches of the home – while we give gardaí the power to search houses, it is a constitutional requirement they should have a search warrant from a judge to do so.
In the 2012 judgment of Damache, the Supreme Court made it clear why this is so, stating that “for the process in obtaining a search warrant to be meaningful, it is necessary for the person authorising the search to be able to assess the conflicting interests of the State and the individual in an impartial manner”.
The same principle applies in relation to access to telephone and internet records, and the failure to provide for independent authorisation makes it almost certain that Dwyer will eventually succeed in having Irish law ruled invalid.
This outcome has been clear for some time now.
In April 2014 and again in December 2016 the European Court of Justice held that general and indiscriminate data retention laws were contrary to EU law.
In October 2017 the retired Chief Justice John Murray concluded that Irish data retention law was an illegal system of “mass surveillance” (in a report commissioned by the Department of Justice and Equality itself ) and recommended that the system should no longer be used.
Despite this, a matter which the State’s representatives described as being of great significance to the criminal justice system has been allowed to carry on in knowing illegality for years rather than accept the findings of the European Court of Justice.
This refusal to comply is simply the most serious example of the State’s general response to data protection law – from the Public Services Card to CCTV schemes it has sought to go beyond what is lawful and has ignored criticism until held to account in the courts – but it comes at a high price.
Since the High Court judgment in the Dwyer case, investigations have been hampered and prosecutions undermined by the failure to legislate in a way compatible with EU law – and the blame for this lies squarely at the door of the Department of Justice and Equality and successive ministers.
It is almost certain that Dwyer will succeed in having Irish law ruled invalid
Dr TJ McIntyre is an Associate Professor in the UCD Sutherland School of Law, chair of Digital Rights Ireland and consultant with FP Logue Solicitors