conviction cannot properly be progressed until finality is brought to these issues. In those
circumstances, it does not seem to me that it would be appropriate to wait until the CJEU
has delivered judgment in the cases currently before it. It may be that greater clarity will
be brought to some of the issues which this Court has to consider by the judgments which
the CJEU will deliver in the cases referred to. It is even possible that clarity may be
brought to all of the issues, such that the answers to the questions raised in the reference
would no longer be required. However, there remains a significant possibility that at least
some of the questions will nonetheless require to be answered in one form or another.
6.33 Having regard to the fact that Mr. Dwyer will remain in prison until his criminal appeal can
progress, it seems to me to be appropriate to make a reference at this stage and to invite
the CJEU to progress the reference through the expedited procedure, subject to a review
being carried out after the CJEU has delivered judgment in those cases in respect of which
the opinions of the Advocates General were delivered in January 2020, so as to ascertain
whether all of the questions still require to be answered.
7. Conclusions
7.1 For the reasons set out in this judgment, I consider that there are three key areas of
European Union law where the law is not acte clair but where clarification of that law is
necessary to reach a proper decision on this appeal.
7.2 In simple terms, those areas are:-
(a) Whether a system of universal retention of certain types of metadata for a fixed
period of time is never permissible irrespective of how robust any regime for
allowing access to such data may be;
(b) The criteria whereby an assessment can be made as to whether any access regime
to such data can be found to be sufficiently independent and robust; and
(c) Whether a national court, should it find that national data retention and access
legislation is inconsistent with European Union law, can decide that the national law
in question should not be regarded as having been invalid at all times but rather
can determine invalidity to be prospective only.
7.3 In those circumstances, it seems to me that it is necessary that this Court refers
questions to the CJEU under the provisions of Article 267 of the Treaty on the Functioning
of the European Union. I propose that the Court should make such a reference in the
terms set out in a separate document which I will circulate along with the delivery of this
Page 30 ⇓
judgment. I would propose that the parties be given a period of seven days to make
observations on the text of that document. In that context, I would emphasise that the
decision which I propose should be made by this Court today would definitively determine
that there should be a reference and would also definitively determine the broad issues
which require to be addressed in that reference. The observations which I propose that
the parties should be permitted to make should, therefore, be confined to matters of
detail or issues concerning the precise wording of the reference document. I would
propose that the Court, having considered such observations as may be received within
that timeframe, should then finalise the reference document and arrange for its
transmission to the CJEU.
Result: Other
BAILII: