CJEU asked to consider the retention of and Garda access to mobile telephone metadata

Clarke CJ: Requirement by public authorities that private telephony service providers retain certain data - data protection - data concerning communications - disclosure of data to investigating and prosecuting authorities - Directive 2006/24/EC - 2002/58/EC - Communications (Retention of Data) Act 2011 - retention of metadata by An Garda Siochana - Ireland’s earlier failure to transpose directive - annulment of 2006 directive - investigation of murder - alleged link between certain telephones and a suspect - whether relevant data should have been admitted in evidence - complex and novel questions of constitutional and European Union law - request by senior member of An Garda Siochana that data be disclosed - inconsistency between 2006 directive and EU Charter of Fundamental Rights - proportionality of interference - justification for retention of and access to data - ‘universal’ retention of data - whether universal (untargeted) retention was ever permissible - manner in which access was obtained - ‘Telecom Liaison Unit’ (TLU) of An Garda Siochana - whether a sufficiently independent process prior to the disclosure of the relevant data - protection against abuse of scheme - ‘Complaints Refereee’ - expert evidence - object of combating serious crime.

“As I understand it, no issue was raised at the criminal trial as to the manner in which the relevant telephony data was accessed by the investigating and prosecuting authorities, save to the extent that it is said that the entire legal basis on which that access was granted is invalid as a matter of European Union law. It follows that the argument which suggests that the relevant telephony data should not have been admitted in evidence and that his conviction is therefore unsafe first requires the establishment of that unlawfulness.”


“While organised crime and terrorism may in some cases give rise to prior suspicion in advance of the commission of any particular specific crime, the type of serious crime with which these proceedings are concerned rarely involves any circumstances which could reasonably be known to investigating authorities in advance and which could lead to prior suspicion. It is, in my view, the experience of the members of the Irish courts dealing with criminal matters that some such cases have only been solved because of the availability of the type of data involved in these proceedings.”

“It seems particularly important to emphasise, therefore, that it is not possible to access that which has not been retained. If, on the basis of the argument put forward on behalf of Mr. Dwyer, it is not permissible to have “universal” retention of data, notwithstanding the robustness of any access regime, then it follows that many of these serious crimes against women, children and other vulnerable persons will not be capable of detection or successful prosecution.”

Charleton J (dissenting - judgment delivered in both English and French): Protection to telecommunications data - history of protection - disclosure of personal information - requirement for data to be kept for three years 'in an inert form' - use of data in serious criminal cases - duty to show legality in accessing data - reasonable suspicion - human rights violations - crime as human rights violations - issues of the proportionality of a legislative measure - competence of CJEU in criminal litigation - abandonment of relevant mobile phones - Ireland's opt out from Article 82 of the TFEU.

"Any issue of Kompetenz-kompetenz is not lightly to be engaged whereby this Court should rule on its own and exclusive jurisdiction in the field of criminal law. The duty of sincere cooperation requires an analysis of the extent and limits of national and European Union competence in ruling on the recovery of evidence in criminal cases and the presentation of evidence as part of a criminal prosecution. It is not appropriate to refer cases under Article 267 of the Treaty of the Functioning of the European Union which relate to criminal law and which ought to be resolved by the application of the four stage test on the protection of rights."

"The acquis communautaire establishes a four stage test: (i) does the measure pursue a legitimate goal; (ii) is it suitable to attain that goal; (iii) is it the least restrictive measure available in order to achieve the aim equally well as the measure chosen; (iv) have the competing interests been balanced correctly? ... That assessment is thus the task of the national courts. There is sufficient evidence now before this Court for a ruling to be made as to whether the decision of the High Court should be reversed or upheld. That is a national task."

"Member States within Title V could have made this point to the Commission and sought amendments or clarifications. By being excluded from Title V, Ireland is not part of any legislative obligation for the exclusion of evidence. Further, competence in criminal law is not to be engaged as being within Ireland’s treaty obligations through matters related to the internal marked. In the cases of Ireland and Greece, criminal law is specifically excluded from same."

" Les États Membres qui participent au titre V auraient pu proposer des amendements ou obtenir des éclaircissements de la Commission. En raison du titre V, l’Irlande ne doit pas participe aux mesures relevant de l’admissibilité des preuves. En plus, la compétence en matière du droit pénal ne s’engage pas en raison de d’être partie des obligations irlandaises relatant au marché intérieur. En ce qui concerne l’Irlande et la république hellénique, elles se sont exclus."