Professor of Law Shane Kilcommins explains the High Court ruling data retention, the implications it might have on Graham Dwyer's case and ongoing investigations.
The court ruling did two things: To begin with it held that the demands of a modern-day democratic society to guarantee the fundamental right to privacy prescribed by EU and European Court of Human Rights (ECHR) law for access to retained telephony data have not been met by the Data Retention Act of 2011, which requires all service providers to retain the telephony data for two years. It was in breach because access to such data was deemed to be overly general and indiscriminate. The 2011 act did not provide for sufficient safeguards to ensure effective protection of the data retained against the risk of abuse and against any unlawful access and use of that data.
In providing a remedy, the court rejected the submission made by the State that this declaration of incompatibility should be prospective only, in other words, that it should only apply from the date of Thursday’s ruling.
This submission was based on the idea that the ruling would involve a significant disruption of the expectations legitimately based on the law as it stood.
The court rejected this argument holding that the decision could not be prospective only as it would deprive every person whose rights were allegedly violated by the application of the 2011 act of the possibility of seeking a remedy.
The court concluded that the legal system in Ireland can allow for an orderly consideration of the retrospective effects of the declarations on the adducing of evidence in each case according to the particular circumstances presenting.
Graham Dwyer has made submissions about the admissibility of his telephone records in his trial for murder, and in particular the compatibility of the Data Retention Act 2011 with EU Law. The trial court ruled that these records were admissible at trial. At the time of determining the issue, the Data Retention Act 2011 was good law. This judgment will allow Dwyer to advance the argument in the appeal of his murder conviction. It does not automatically follow that this data was accessed contrary to EU law and was used by the prosecution will lead to the quashing of his conviction for murder. This part of his appeal will now be interpreted in the light of a recent Supreme Court ruling on the exclusionary rule, JC, which relates to evidence gathered in breach of individual rights.
The assessment as to whether evidence was taken in deliberate and conscious violation of rights requires an analysis of the conduct and state of mind not only of the individual who actually gathered the evidence concerned but also of any other senior official or officials within the investigating or enforcement authority concerned who were involved either in that decision or in decisions of that type generally or in putting in place policies concerning evidence gathering of the type concerned. Such evidence can be admitted where the prosecution establishes that the evidence was obtained in circumstances where any breach of rights was due to inadvertence or derives from subsequent legal developments, which no doubt will be argued by the State in this case.
Clearly the judgment applies retrospectively, so it can involve other cases where evidence was obtained under the 2011 Act. It will be determined on a case-by-case basis, with the court adjudicating on whether it is fair and right to adduce specific evidence obtained under the 2011 Act, having regard to the exclusionary rule.
Retrospectivity, however, is generally limited to those cases that had not reached finality. Once a case is “finalised” in the sense that there was no ongoing appeal or that he/she had finished serving their sentence when this decision was made, there is no redress. The general principle is that in a criminal prosecution where the State relies in good faith on a statute in force at the time and the accused does not seek to challenge this on any grounds that may in law be open to him or her, before the case reaches finality, on appeal or otherwise, then the final decision in the case must be deemed to be and to remain lawful notwithstanding any subsequent changes in the law.
The writing has been on the wall for the Act for some very considerable time now. In April 2017, Mr Justice Murray recommended that “consideration be given to the extent that, if at all, statutory bodies should, as a matter of policy, continue to access retained communications data under the provisions of the 2011 Act”.
Current investigations which have not yet reached trial are subject to this ruling. Any evidence obtained under the 2011 Act will now be challenged at trial.
The prosecution may still be able to argue that it was obtained prior to the ruling and therefore should be admissible on the basis that it did not constitute a deliberate and conscious breach of rights.
It will not be possible to make such an argument for any future evidence gathered under the 2011 act — that will now be accessed knowing that the legislation is incompatible with the rights of the individual. On October 3, 2017, the Government published the general scheme of the Communications (Retention of Data) Bill 2017. It remedies many of the shortcomings of the 2011 Act, but it is not yet law.
Professor Shane Kilcommins is Head of the school of law at the University of Limerick.