State vetoed release of European court arguments on data retention

In 2013, Graham Dwyer was sentenced to life in prison at Dublin's Central Criminal Court for the murder of Elaine O'Hara, 36, in the Dublin mountains. Picture: Niall Carson/PA

The State vetoed the release of its arguments before a European court with regard to data retention so as not to compromise its case against convicted murderer Graham Dwyer.

An attempt to have this country’s arguments in a series of landmark cases in Europe was unsuccessful due to the State opposing the release of its written submissions in those cases.

Last month the Court of Justice of the European Union (CJEU) told the Supreme Court here that any decision it makes with on the mobile phone data used in part to incriminate Dwyer in 2015, which is subject to an appeal against his conviction, is likely to be in his favour.

That appeal hinges on the alleged illegality of the methods by which Dwyer’s mobile phone records were used to convict him.

The precedent for the EU court’s imminent decision with regard to the Dwyer case had been set by a series of landmark judgements regarding data retention by member states over the past six years.

Those cases include those of Privacy International and La Quadrature du Net, both of which took place after Dwyer’s conviction and affirmed a 2014 ruling by the CJEU, in a case taken by Digital Rights Ireland, which stated that Irish law surrounding the retention of phone records and other personal data amounted to mass State surveillance.

Regarding its submissions in those two cases, Ireland argued that it could only consent to their release “subject to the associated domestic proceedings being concluded”.

“The Irish authorities argue that those pleadings made extensive reference to an Irish case, Graham Dwyer v Commissioner of An Garda Siochana & Others, where domestic proceedings remain extant,” the EU said in a statement refusing access to the submission under freedom of information. “Accordingly Ireland objects to their disclosure.”

The Department of Justice had not responded to a request for clarification as to how its submissions could have proved problematic if made public, at the time of publication.

The pending decision by the CJEU is not expected to materially affect the conviction of Dwyer. However, legal sources have suggested its precedent is likely to see a glut of appeals of convictions secured by the gardaí using Ireland’s illegal data retention laws as their basis.