Data retention and 'Secrets of a Psychopath'

The Supreme Court, sitting in Waterford, recently referred a point of law to the Court of Justice of the European Union (CJEU).

By way of background, the Defendant was convicted of murder in 2015.  The circumstances of that case were subject to a CBS Reality documentary last year – Secrets of a Psychopath

At trial, the prosecution sought to rely on evidence purporting to link him to certain mobile phones and data identifying their locations at relevant times.

The case before the Supreme Court did not concern that conviction, which is subject to a separate appeal, rather it was concerned with the provisions of the Communications (Retention of Data) Act 2011 which was enacted on foot of an EU Directive relating to the retention of data in the context of public communications.

That Directive was later deemed invalid by the CJEU as it permitted the indiscrimination retention of data without adequate safeguards. 

A number of preliminary issues arose including whether the 2011 Act should be considered invalid from the date of that decision or invalid outright.  This would seem comparable to the distinction in insurance law between void and voidable. 

Subject to any ruling of the CJEU, it may be the case that the evidence obtained under the 2011 Act and adduced at trial could be deemed inadmissible in the criminal case by the Court of Appeal.

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Dwyer v The Commissioner of An Garda Siochana & Others [2020] IESC 4

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