Mr Justice Peter Charleton gave two reasons for his dissenting opinion in the Supreme Court judgment in the Dwyer v Commissioner of An Garda Síochána data retention case on Monday.

The court decided to refer three key issues to the Court of Justice of the EU in the Graham Dwyer case, which relates to the retention and accessing of his mobile phone metadata.

In December 2018, the High Court ruled that the retention of mobile phone metadata, for access as part of serious crime investigations, breached EU law.

On Monday, Chief Justice Frank Clarke expressed a view on three key issues in the case, but because these all involve matters of EU law – and the answers are not clear – he intends to refer these issues directly to the European Court of Justice in Luxembourg. 

The seven judges gave their decision at the first Waterford sitting of the Supreme Court, with only Mr Justice Peter Charleton, dissenting.

Proportionality

In his judgment, Mr Justice Charleton said issues surrounding the proportionality of a legislative measure which impinged on guaranteed rights should be resolved by the national courts “and can therefore be resolved here”.

Pointing out that the mobile phones at issue in this case were abandoned by whoever used them, he said the collection of data and access to data were two sides of the same coin.

“It cannot be that it is part of European law that collection of data in an inert way and subject to serious criminal sanction for breach of protections, as provided for in Irish law and practice, offends human rights under the Charter or legislation,” he argued.

Judge Charleton also argued that the right to the protection of personal data under the EU’s Charter of Fundamental Rights need not clash with separate rights to life or bodily integrity.

Data rights

He said guarantees in Irish legislation demonstrated respect for those personal data rights.

Ultimately, he argued that the task of deciding whether a limitation on the right to the protection of data was proportionate was one for the national courts.

Judge Charleton also cited a number of EU treaty provisions, derogations and legislative measures which mean “competence in criminal law is not to be engaged as being within Ireland’s treaty obligations through matters related to the internal market.”