A majority Supreme Court has decided to refer key issues in convicted murderer Graham Dwyer’s mobile phone data retention case to the EU Court of Justice.

Although the State’s appeal over a far-reaching High Court finding that a 2011 law permitting phone data to be used in his trial breaches EU law will not be fully decided by the Supreme Court until the CJEU rules, the Chief Justice Frank Clarke expressed important preliminary views today with which six of his colleagues agreed.

Those included a view that a system of “universal but limited” retention of phone data is not in itself incompatible with EU law but there must be a “particular robust” access system in place which includes having independent prior permission for such access.

The current Irish access system does not meet that standard, the Chief Justice said.

Another important preliminary view, including for the purpose of Dwyer’s separate appeal over his 2015 conviction for the murder of Elaine O’Hara, was that national courts have power to decide that any declaration of invalidity of the 2011 Act should only be prospective, apply from the date of the court judgment to that effect.

The Supreme Court is delivering its ruling on the State's appeal against convicted murderer Graham Dwyer's successful challenge to the retention and accessing of mobile phone data. | https://t.co/AdIAwyo92L https://t.co/UaPUxky7F9 — RTÉ News (@rtenews) February 24, 2020

Because the High Court finding if invalidity was made in 2018, that suggests, if the preliminary view stands, the data relevant to Dwyer would have been legally retained and accessed.

The Chief Justice stressed on Monday that the Supreme Court did not concern Dwyer’s separate conviction appeal and only concerned the High Court finding that provisions of the Telecommunications (Retention of Data) Act 2011 breach EU law because it allowed for indiscriminate data retention without adequate safeguards including a prior independent overview of access requests.

Each of the preliminary views expressed in this case involved consideration of difficult issues of EU law, the Chief Justice said.

The Supreme Court is obliged, under the EU Treaties and case law of the Court of Justice, to make a referral on any issue of EU aw which is necessary to decide proceedings unless there is a “clear” answer to that issue of EU law.

He was not satisfied the answer to any of the issues he had identified was clear and the court would therefore make a reference to the CJEU.

A draft reference document was provided to the lawyers for the sides and they now have seven days to make observations on that before it is finalised.

Mr Justice Donal O’Donnell, Mr Justice Liam McKechnie, Mr Justice John MacMenamin, Ms Justice Iseult O’Malley and Ms Justice Mary Irvine all agreed with the Chief justice while Mr Justice Peter Charleton dissented.

He said this case was all about excluding “vital” metadata and Ireland is not part of any legislative obligation for the exclusion of evidence.

He said issues of proportionality of a legislative measure impinging on guaranteed rights should be resolved by national courts and can therefore be resolved here in the State.

There was enough evidence before the Supreme Court for a ruling to be made as to whether the High Court decision should be reversed or upheld, he said.

It was also not appropriate to refer cases under Article 267 of the Treaty of the Functioning of the EU which relate to criminal law and which should be resolved by application of a test on the protection of rights.

The judgments were delivered on Monday during the first ever sitting in Waterford of the Supreme Court.

Supreme Court ruling on State's appeal against High Court challenge won by Graham Dwyer

The Supreme Court will rule today on an appeal taken by the State against a legal challenge won in the High Court by convicted murderer Graham Dwyer.

If the decision is upheld, the State claims it could have serious implications for the way serious crimes are investigated and prosecuted.

One of the most crucial pieces of evidence used in Graham Dwyer’s prosecution for the murder of Elaine O’Hara emerged following the analysis of several phones linked to the case.

Using cell-site analysis, gardaí were able to track the movements of one phone in particular that they claimed belonged to Dwyer.

It put him at certain locations relevant to their investigation, and he was found guilty following a high-profile trial almost five years ago.

His plans to appeal that conviction were given a huge boost in 2018 when the High Court ruled the law which allowed his data to be retained and accessed was invalid.

The State believes the law should stand, and says the upholding of the ruling could have adverse consequences for the investigation of serious crimes.

Dwyer is only concerned with his own case and the admissibility of phone evidence in his trial – which they say would not have been put to the jury if the decision is correct.

The Supreme Court is due to deliver its judgement at a special sitting in Waterford later this morning.

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