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The European Union Court of Justice is expected to rule against the Irish state in a case referred to it after mobile phone records were used to convict the murderer Graham Dwyer.
Mobile phone data was crucial in showing how Dwyer planned and attempted to cover up the murder of Elaine O’Hara, a 36-year-old child care worker, in August 2012.
The ECJ has ruled in two recent similar cases that member states and service providers do not have extensive rights to withhold data on citizens.
Irish officials now believe the ECJ is likely to come out against a blanket data retention scheme as in the Dwyer case. There is considerable concern among prosecutors and police across the EU about the implications of such a sentence for the investigation of serious crimes and the fight against threats to national security.
In light of its recent rulings, the ECJ has asked the Supreme Court of Ireland whether it wishes to proceed with the referral of the Dwyer case. The Supreme Court responded that it wants the case to continue and hearings are expected to begin in mid-January.
Appeal
Dwyer was found guilty and sentenced to life in prison in 2015. Shortly thereafter, he initiated an appeal process based on the argument that the retention and access to his mobile phone data were incompatible with EU law.
The case reached the Supreme Court, which referred it to the Court of Justice last February under the “preliminary referral procedure” as it concerned a matter of EU law.
Last month, the ECJ ruled in two similar cases related to the withholding of data by authorities in the UK, France and Belgium. It stated that legislation requiring general and indiscriminate retention of data is not compatible with EU law, except in very specific circumstances. In such cases, there should be protection legislation that establishes review procedures and time limits for data retention.
The rulings have raised concern among Irish prosecutors. “It appears that the European Court of Justice has decided that data retention should only take place in highly considered circumstances and only when a level of evidence already exists,” a senior Irish official said at an online conference last week. .
‘Clairvoyance’
“To put it crudely, it reminds me of the movie Minority Report where you need an element of clairvoyance up front to know that a crime will be committed in the future to request the retention of the data on today’s date,” they said. .
“It is very difficult for the Garda or the police service in each individual member state to access the information if the information is never withheld to begin with. It’s a riddle. “
They added that a decision against the Irish state on the matter could have implications for the integration of the European justice system on par with Brexit and may cause some member states to question the competence of the ECJ to rule on such matters.
While a ruling against a blanket data retention scheme would increase Dwyer’s chances of appeal, he still faces multiple legal hurdles.
Any ECJ ruling would be referred to the Supreme Court for implementation and included in Dwyer’s main appeal to the Court of Appeals.
The Court of Appeal may decide that there was sufficient additional evidence in addition to the mobile phone data to support Dwyer’s conviction. Or you may decide that Gardaí and the prosecutors acted in good faith in using the mobile phone evidence, which means that the evidence could still stand.
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