AN CHÚIRT UACHTARACH
THE SUPREME COURT
[2024] IESC 22
O’Donnell C.J.
Barniville P.
Dunne J.
Charleton J.
O’Malley J.
Hogan J.
Collins J.
Between:
THE PEOPLE (DIRECTOR OF PUBLIC PROSECUTIONS)
Respondent
AND
CAOLAN SMYTH
Appellant
JUDGMENT of Mr. Justice Gerard Hogan delivered the 17th day of June 2024
Part I - Introduction
Background
1. In the history of this Court few issues have proved to be as problematic as the question of
whether unconstitutionally obtained evidence should be excluded. In this appeal we are
again presented with this vexing issue albeit in a novel setting, given that in this instance
the violation concerned is not a constitutional right as such, but rather a violation of Article
8 of the EU Charter of Fundamental Rights and Freedoms (“the Charter”). The disputed
evidence in question was certain telephone metadata which had been accessed by members
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of a specialised unit of An Garda Síochána in June 2017 and November 2017 following
data requests to that effect from the Gardai to the relevant service providers.
2. Three fundamental questions arise on this appeal. First, was the telephone metadata in this
case accessed by the Gardaí in a manner which amounted to a breach of Article 8 of the
Charter? Second, do the exclusionary principles articulated in domestic constitutional law
cases following the landmark decision of this Court in The People (Director of Public
Prosecutions) v. JC [2015] IESC 31, [2017] 1 IR 417 apply to a breach of a Charter right
by virtue of the EU law principles of equivalence and effectiveness? Third, if the JC
principles do apply to the present case, does the application of those principles require the
exclusion of this telephone metadata evidence? Since I am of the view that all three
questions must be answered in the affirmative, I would accordingly allow the appeal of Mr.
Smyth and set aside his conviction for attempted murder and possession of a firearm with
intent to endanger life, contrary to s. 15(1) of the Firearms Act 1925 (as amended). This,
however, is to anticipate somewhat. I propose first to set out the relevant facts in summary
form and then proceed with an analysis of this legal issues.
3. The detailed facts have already been set out in some detail in the lead judgment of Collins
J. for the majority of the Court. I have the misfortune to disagree with that judgment so far
as the disposition of Mr. Smith’s appeal is concerned.
4. I now turn to set out my reasons for my dissent in Mr. Smith’s appeal. In view of the
comprehensive analysis contained in the judgment of Collins J. for the majority it is perhaps
sufficient for me to record that on 10th May 2017, a Mr. James Gately was shot in the neck
at a filling station in Clonshaugh, Co. Dublin. Fortunately, he survived. There is little doubt
but that the driver of a Lexus motor vehicle which had pulled up at the filling station just
before the shooting was the person who had discharged the firearm and who had attempted
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to murder Mr. Gately. The driver of the Lexus vehicle then sped off after the shooting. The
vehicle itself was later found burnt out near Dromiskin, Co. Louth.
5. The case against Mr. Smyth rested upon a range of circumstantial evidence adduced by the
prosecution before the Special Criminal Court to the effect that he was the driver of this
vehicle. Thus, for example, the Lexus vehicle had been seen going to and from a particular
address in Co. Meath – which address the prosecution contended could be linked to Mr.
Smyth – on the day before and the day after the shooting. But the other key evidence was
the mobile telephone evidence. This included evidence that a particular mobile telephone
number had been used in connection with the shooting which was connected with Mr.
Smith. The prosecution further contended that the cell sites used by that mobile telephone
corresponded to the direction northwards taken by the Lexus vehicle before it was later
discovered burnt out at Dromiskin.
6. This is only a very brief summary of the nature of the circumstantial evidence tendered by
the prosecution, further details of which are found in the detailed ruling of the Special
Criminal Court in its ruling of 22nd October 2020 admitting this telephone metadata
evidence; its subsequent judgment of 5th January 2021 convicting the accused, and the
decision of Birmingham P. for the Court of Appeal of 28th July 2022 affirming the
conviction: see [2022] IECA 182. It is not, however, really disputed but that the conviction
of Mr. Smith cannot stand if this telephone metadata evidence is excluded. It is further
accepted that if this were to occur that the conviction would have to be quashed.
Part II – The jurisprudence of the Court of Justice and the ruling of the Special
Criminal Court on the telephone metadata issue
7. Before proceeding further, it is first necessary to provide a brief summary of the relevant
case-law of the Court of Justice. The starting point here is the judgment of that Court in
Digital Rights Ireland Ltd. (Case C-293/12, EU:C: 2014: 238). Here the Court held that the
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Data Retention Directive, Directive 2006/34/EC was invalid as it breached the guarantees
as to privacy (Article 7) and Article 8 (data privacy) contained in the Charter. The Court
was unsparing in its criticism of this legislative provision. Having described ([at 37]) the
interference with these rights as “particularly serious”, the Court continued ([at 56-69]):
“56. As for the question of whether the interference caused by Directive 2006/24 is
limited to what is strictly necessary, it should be observed that, in accordance with
Article 3 read in conjunction with Article 5(1) of that directive, the directive requires
the retention of all traffic data concerning fixed telephony, mobile telephony, Internet
access, Internet e-mail and Internet telephony. It therefore applies to all means of
electronic communication, the use of which is very widespread and of growing
importance in people’s everyday lives. Furthermore, in accordance with Article 3 of
Directive 2006/24, the directive covers all subscribers and registered users. It therefore
entails an interference with the fundamental rights of practically the entire European
population.
57. In this respect, it must be noted, first, that Directive 2006/24 covers, in a
generalised manner, all persons and all means of electronic communication as well as
all traffic data without any differentiation, limitation or exception being made in the
light of the objective of fighting against serious crime.
58. Directive 2006/24 affects, in a comprehensive manner, all persons using
electronic communications services, but without the persons whose data are retained
being, even indirectly, in a situation which is liable to give rise to criminal prosecutions.
It therefore applies even to persons for whom there is no evidence capable of suggesting
that their conduct might have a link, even an indirect or remote one, with serious crime.
Furthermore, it does not provide for any exception, with the result that it applies even
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to persons whose communications are subject, according to rules of national law, to the
obligation of professional secrecy.
59. Moreover, whilst seeking to contribute to the fight against serious crime,
Directive 2006/24 does not require any relationship between the data whose retention
is provided for and a threat to public security and, in particular, it is not restricted to a
retention in relation (i) to data pertaining to a particular time period and/or a particular
geographical zone and/or to a circle of particular persons likely to be involved, in one
way or another, in a serious crime, or (ii) to persons who could, for other reasons,
contribute, by the retention of their data, to the prevention, detection or prosecution of
serious offences.
60. Secondly, not only is there a general absence of limits in Directive 2006/24 but
Directive 2006/24 also fails to lay down any objective criterion by which to determine
the limits of the access of the competent national authorities to the data and their
subsequent use for the purposes of prevention, detection or criminal prosecutions
concerning offences that, in view of the extent and seriousness of the interference with
the fundamental rights enshrined in Articles 7 and 8 of the Charter, may be considered
to be sufficiently serious to justify such an interference. On the contrary, Directive
2006/24 simply refers, in Article 1(1), in a general manner to serious crime, as defined
by each Member State in its national law.
61. Furthermore, Directive 2006/24 does not contain substantive and procedural
conditions relating to the access of the competent national authorities to the data and to
their subsequent use. Article 4 of the directive, which governs the access of those
authorities to the data retained, does not expressly provide that that access and the
subsequent use of the data in question must be strictly restricted to the purpose of
preventing and detecting precisely defined serious offences or of conducting criminal
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prosecutions relating thereto; it merely provides that each Member State is to define the
procedures to be followed and the conditions to be fulfilled in order to gain access to
the retained data in accordance with necessity and proportionality requirements.
62. In particular, Directive 2006/24 does not lay down any objective criterion by
which the number of persons authorised to access and subsequently use the data
retained is limited to what is strictly necessary in the light of the objective pursued.
Above all, the access by the competent national authorities to the data retained is not
made dependent on a prior review carried out by a court or by an independent
administrative body whose decision seeks to limit access to the data and their use to
what is strictly necessary for the purpose of attaining the objective pursued and which
intervenes following a reasoned request of those authorities submitted within the
framework of procedures of prevention, detection or criminal prosecutions. Nor does it
lay down a specific obligation on Member States designed to establish such limits.
63. Thirdly, so far as concerns the data retention period, Article 6 of Directive
2006/24 requires that those data be retained for a period of at least six months, without
any distinction being made between the categories of data set out in Article 5 of that
directive on the basis of their possible usefulness for the purposes of the objective
pursued or according to the persons concerned.
64. Furthermore, that period is set at between a minimum of 6 months and a
maximum of 24 months, but it is not stated that the determination of the period of
retention must be based on objective criteria in order to ensure that it is limited to what
is strictly necessary.
65. It follows from the above that Directive 2006/24 does not lay down clear and
precise rules governing the extent of the interference with the fundamental rights
enshrined in Articles 7 and 8 of the Charter. It must therefore be held that Directive
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2006/24 entails a wide-ranging and particularly serious interference with those
fundamental rights in the legal order of the EU, without such an interference being
precisely circumscribed by provisions to ensure that it is actually limited to what is
strictly necessary.
66. Moreover, as far as concerns the rules relating to the security and protection of
data retained by providers of publicly available electronic communications services or
of public communications networks, it must be held that Directive 2006/24 does not
provide for sufficient safeguards, as required by Article 8 of the Charter, to ensure
effective protection of the data retained against the risk of abuse and against any
unlawful access and use of that data. In the first place, Article 7 of Directive 2006/24
does not lay down rules which are specific and adapted to (i) the vast quantity of data
whose retention is required by that directive, (ii) the sensitive nature of that data and
(iii) the risk of unlawful access to that data, rules which would serve, in particular, to
govern the protection and security of the data in question in a clear and strict manner in
order to ensure their full integrity and confidentiality. Furthermore, a specific obligation
on Member States to establish such rules has also not been laid down.
67. Article 7 of Directive 2006/24, read in conjunction with Article 4(1) of Directive
2002/58 and the second subparagraph of Article 17(1) of Directive 95/46, does not
ensure that a particularly high level of protection and security is applied by those
providers by means of technical and organisational measures, but permits those
providers in particular to have regard to economic considerations when determining the
level of security which they apply, as regards the costs of implementing security
measures. In particular, Directive 2006/24 does not ensure the irreversible destruction
of the data at the end of the data retention period.
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68. In the second place, it should be added that that directive does not require the
data in question to be retained within the European Union, with the result that it cannot
be held that the control, explicitly required by Article 8(3) of the Charter, by an
independent authority of compliance with the requirements of protection and security,
as referred to in the two previous paragraphs, is fully ensured. Such a control, carried
out on the basis of EU law, is an essential component of the protection of individuals
with regard to the processing of personal data (see, to that effect, Case C-614/10
Commission v Austria EU:C:2012:631, paragraph 37).
69. Having regard to all the foregoing considerations, it must be held that, by
adopting Directive 2006/24, the EU legislature has exceeded the limits imposed by
compliance with the principle of proportionality in the light of Articles 7, 8 and 52(1)
of the Charter.”
8. It is fair to say that this decision amounted to something of a judicial earthquake. Its import
was confirmed again by the Court of Justice in its judgment of December 2016 in Tele2
Sverige AB v. Post-och telestyrelsen (Joined cases C-203/15 and C-698/15,
EU:C:2016:970). At issue here was the validity of a number of national data retention
measures which predated the decision of the CJEU in Digital Rights. The decision in Tele
2 Sverige made it clear that national retention measures based on the 2006 Directive and
which themselves did not provide for Digital Rights Ireland-type safeguards were
themselves contrary to EU law.
9. As it happens, Irish law and practice in this area were comprehensively reviewed by the
late Chief Justice Murray at the request of the Minister for Justice and the Government. In
his report which was published in April 2017, Review of the Law on the Retention of and
Access to Communications Data. In his report the late Chief Justice was also fairly
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uncompromising regarding the deficiencies of the legislation in the light of these
development. He summed this up (at para. 256 of his report):
“Recitation of the principal frailties of the 2011 Act provides a useful prelude to the
ensuing consideration of necessary safeguards. They include: allowing statutory bodies
an effective power of self-certification when making disclosure requests; failure to
provide for prior independent authorisation of disclosure requests; failure to adhere to
the clear statement principle by permitting undue legislative scatter of the rules
governing data retention and disclosure; failure to articulate sufficiently clear objective
criteria governing the conditions, circumstances and purposes surrounding data
retention and disclosure; failure to provide clear procedures and protocols for the
statutory bodies given a right of access to retained data; failure to make provision for
the notification of persons affected, either directly or indirectly, by disclosure requests;
failure to make appropriate provision for a remedy for wrongful access to retained data;
failure to provide for the storage of retained data within the European Union.”
10. It is true that this was not a judicial pronouncement as such. The Murray Report was
nonetheless a comprehensive review of our existing law which was authored by a
distinguished former judge and Chief Justice. It was unsparing in its analysis and it left few
doubts as to the inadequacies of the 2011 Act.
11. It remains to summarise the relevant subsequent domestic developments. In Dwyer v.
Commissioner of An Garda Síochána [2018] IEHC 685, a person convicted of murder
commenced proceedings in the High Court seeking to challenge the compatibility of the
Communications (Retention of Data) Act 2011 with EU law. Telephone records of a kind
similar to the present case had played a prominent role in his trial. In the High Court,
O’Connor J. granted declaratory reliefs in terms of orders to the effect that s. 6 of the 2011
Act was incompatible with EU law. This decision was appealed by the State to this Court
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which in February 2020 decided to make a reference to the CJEU pursuant to Article 267
TFEU: see [2020] IESC 4, [2020] 1 ILRM 389.
12. Delivering the majority judgment of this Court, Clarke C.J. expressed the view that, with
regard to the system of access to retained data provided for in the 2011 Act, he was inclined
to conclude that our existing regime did not provide adequate safeguards to meet the
requirements of EU law in the light of the jurisprudence of the CJEU. He nonetheless
concluded that given that the matter was not acte clair it was appropriate to make a
preliminary reference. On 18th November 2021, Advocate General Campos Sánchez-
Bordona delivered his opinion in GD (i.e., Dwyer) in which he suggested that the questions
referred by this Court had already been answered by the Court of Justice in its existing
case-law. The judgment of the CJEU on foot of the reference (Case C-140/20,
EU:C:2022:258) was delivered on 5th April 2022. The Court of Justice endorsed the
approach of the Advocate General, with the CJEU saying that the Irish regime did not
comply with EU law. Once again, the focus of attention was on the provision for blanket
retention for an indefinite period and the fact that access was not dependent on an
application for an order to a court or independent tribunal.
10. While all of these developments were on-going, the trial of the two accused charged in
the present case commenced in October 2020 before a Special Criminal Court. That Court
pronounced its judgment on the 5th January 2021 in which the two accused were convicted.
The Court had previously rejected arguments in a detailed ruling dated 22nd October 2022
which had been advanced by the accused to the effect that the telephone metadata evidence
should be excluded.
11. The Court commenced its judgment by noting that Mr. Smyth had disclaimed ownership
or possession of the key mobile telephone in question:
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“He does not assert ownership of the relevant phone numbers, SIM cards or
handsets. In fact, it appears that ownership of these will be disclaimed for the
purposes of the trial. It is not asserted that he has been specifically associated
with these items, either by registration of his personal details of ownership or
by long established association with unregistered items. The privacy right
appears to us to be asserted solely on a precautionary basis, that it arises if the
prosecution established that he was, in fact, associated with these items at times
material to the commission of the offences alleged by the prosecution in this
case.”
12. The Court then observed that if the prosecution did establish that, then it was very difficult
to see how such privacy rights could then be asserted, since the proposition that the right
to privacy cannot extend to participation in criminal activity was both unremarkable and
long-established, referring, in that context, to the case of EMI Records (Ireland) Ltd v.
UPC Communications [2010] IEHC 377 and Idah v. DPP [2014] IECCA 3.
13. The Court next said that the 2011 Act was at all material times presumptively
constitutional, even if, since the decision in Tele 2 Sverige on 21st December 2016, certain
salient provisions in that Act were “precluded” by virtue of certain case law of the CJEU.
The Court referred to the fact that the annulment of the 2006 Directive by the CJEU in the
Digital Rights Ireland case did not leave “a complete vacuum in the law of the European
Union” as the provisions of Directive 2002/58 remain in force. It commented:
“Since the directive of 2002 has not been annulled and continues to be part of
the body of the law of the European Union, the State is still required to
implement the provisions of that directive and, therefore, the 2011 Act retains a
significant purpose in that respect. Consequently, the [G]ardaí were entitled
and obliged to apply presumptively constitutional legislative measures
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applicable at the time of the investigation into these serious crimes. We are
satisfied that the Garda actions in this case followed, and in many ways went
beyond, the requirements of the 2011 Act.”
14. The Court then made reference to the decision in Tele 2 Sverige, drawing attention to the
fact that the CJEU had stated that, with respect to retention issue, if the retained data was
taken as a whole (and the Court placed emphasis on the phrase “as a whole”), then it was
liable to allow very precise conclusions to be drawn concerning the private lives of the
persons whose data had been obtained. The Court noted that the Court of Justice had
concluded that because the retention of data without the users of electronic
communications services being informed of that fact was likely – in the view of the CJEU
– to cause persons concerned to feel that their private lives were the subject of constant
surveillance. At this point the Court observed (with, perhaps, some asperity) that the CJEU
has “never set out a scintilla of evidence to support or justify” that assertion, and that
“general observations of the behaviour of the Irish population in relation to telephone
usage would not support such a conclusion”. The Special Criminal Court indicated that it
preferred the dissenting judgment of Charleton J. set out in paragraph 12 of his judgment
in Dwyer. It was pointed out that, while technically a dissent, Charleton J. had dissented
only on the necessity to refer questions in that case to the CJEU. The Court then proceeded
to quote at some length, with apparent approval, from Charleton J.’s judgment.
15. The Special Criminal Court went on to state that the domestic privacy rights relied on in
the case had never been identified as absolute or unqualified. The exercise of those rights
might be restricted by the constitutional rights of others or by the requirements of the
common good and was always subject to the requirements of public order and morality. It
was stated that “[w]hilst courts should, in principle, be prepared to exclude any evidence
tainted with illegality, evidence so obtained may be admitted, where other interests
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outweigh the privacy interests breached by illegal action.” The Special Criminal Court
then commented that a court is “entitled to assess the actual significance of any interference
with privacy or data rights in the context of the facts of the individual case and to balance
the precise level of privacy rights arising against any competing interest that also arises.”
16. It then observed that the evidence in issue did not disclose surveillance of the accused,
whether electronically or otherwise, within any sense in which that word was ordinarily
understood. What had happened was that the Gardaí sought and received a precise amount of
information, targeted on issues that came to the attention of Gardaí during their investigation.
As Birmingham P. put it in his judgment for the Court of Appeal:
“On a standalone basis, the trial court considered that insofar as disclosure or access
to any retained data could be said to constitute an interference with the private lives
of either of the accused, the nature of such interference must, on any view of it, be
inherently slight when one looks at the facts of this case as are available, because none
of the numbers in this case were apparently registered to a specific user. Neither of
the accused chose to identify or associate themselves with the telephone numbers in
question in this way, and as far as the trial court members knew at that stage, their
identities were not directly ascertainable from the access data. The trial court added,
and this cannot really be the source of any great controversy, that data of the type
sought by Gardaí in this case ordinarily requires the application of further layers of
evidence, information and detail in order for those numbers or other data to become
attributable to identified individuals. It did concede that it was possible that, perhaps,
armed with such information and two years’ worth of data, conclusions or inferences
could be drawn about the conduct of the private lives of any person identified by the
entirety of the retained data, but that no such suggestion arose in the case before the
court. The information requested and obtained in the case related to anonymous
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handsets, SIM cards and cell site activity and was tightly focused on and related to the
attempted murder of Mr. Gately. The trial court went on to comment, which we think
merits quotation, as follows:
“It is not suggested, for example, that the limited quantity of data accessed by
the gardaí revealed anything about the identity of the callers, where they lived
or worked, their gender, their religion, their beliefs, their opinions, their
sexuality, what they were doing at the time of the call, the internal content of the
communications, the identity of the persons with whom they were
communicating or associating or the nature of the activity associated with the
communications in question. In these circumstances, the access data says
absolutely nothing, or at best very little about the private life or details of either
of the accused. Presumably, it will tell us in due course, that on particular
occasions one telephone number contacted, or attempted to contact, another
telephone number at a time when the contacting SIM card or handset was within
the footprint or area of operation of a particular cell site location, or perhaps that
certain items such as top‑ups were purchased at particular times and particular
places.”
17. The Special Criminal Court then looked to arguments on the other side, observing that
there was no question about the strength and depth of the public interest in the investigation
of these crimes which were serious by any possible applicable standard:
“. . . The weight of the general recognised interest of the State in investigating the
serious crime of attempted murder, and/or the destruction of evidence and the rights
and freedoms of other members of society, far outweigh any possible breach of
a privacy right by a failure to obtain advance judicial or other independent assent to
disclosure in this case.
15
...
A useful way to approach the matter is to ask whether it is likely that a replacement
system involving prior judicial or other independent authorisation would be likely to
have produced a different result on the applications in this case. We do not think so.
In the circumstances of this case, we cannot envisage any reasonable possibility that
any such authority would have had any reasonable basis for refusing the specific
detailed and timely requests that were made by the [G]ardaí for access to the
materials in question. In our view a decision to refuse access would have been both
arbitrary and capricious, and a system that would produce any such result would be
effectively worthless in terms of public protection.
...
Moreover, as the material has been accessed and used by the State authorities for the
purpose of investigating and prosecuting a serious crime, as opposed to being
accessed by the State for surveillance or some other nefarious purpose, the accused
have had the benefit as a matter of fact of judicial supervision of access to the
material in the light of the circumstances as they are now known to be, and not
necessarily the more limited form of supervision that arises at an early and ex parte
stage of the investigation. We are satisfied that when accessed data is used in the trial
context, that the trial court provides a full independent and effective safeguard
against any potential abuses of privacy and data rights and a trial court can do so by
assessing proportionality and balancing rights on the basis of facts proved at trial,
rather than those asserted by investigators in the context of an access application at
an inchoate stage of the investigation.
...
16
Therefore, we conclude that the weighted public interest and common good
associated with the need to properly investigate these matters comprehensively
outweighs any limited privacy rights attaching to the data accessed in this
investigation. We therefore decline the invitation to exclude evidence obtained on
foot of the challenged requests. The exclusion of otherwise cogent, probative and
lawfully obtained evidence is not a proportionate response to the breach of the
individual rights asserted in this case. The degree of disproportion that would justify
the exclusion of otherwise lawfully obtained and probative evidence has not been
remotely approached by the facts of this case.”
16. These views were in substance approved by the Court of Appeal in the judgment of
Birmingham P. when dismissing the appeal.
Part III - The use of telephone metadata and Article 8 of the Charter
17. The first question to be considered is whether, viewed objectively, the accessing of this
telephone metadata amounted to a breach of Article 8 of the Charter. It is clear that it was.
The 2011 Act provided for the retention of telephone metadata on a mass and indiscriminate
basis for a three-year period. It did not provide for any form of independent judicial-style
supervision. In these respects, the 2011 Act failed the key tests prescribed by the Court of
Justice in Digital Rights Ireland and, I feel bound to observe, it did so by a wide margin. I
regard any suggestion to the contrary as unpersuasive and unrealistic.
18. The Special Criminal Court found that, his denials notwithstanding, these mobile phones
were either owned or controlled by Mr. Smyth. If that is correct, then his Article 8 Charter
rights were necessarily affected by the data access requests made by the Gardaí in June
2017 and November 2017 respectively. In those circumstances I do not accept that an
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accused person must, so to speak, first own up to ownership or possession before he or she
can advance the EU law point. This would be entirely at odds with the principle that one
cannot be constitutionally required to incriminate oneself as protected by Article 38.1: see,
e.g., the judgment of Barrington J. in Re National Irish Banks Ltd. (No.1) [1999] 3 IR 145.
19. In any event, the entire thrust of the CJEU case-law from Digital Rights Ireland onwards
is that it is the very existence of this indiscriminate data retention regime (coupled with the
lack of safeguards) which is objectionable from the Article 8 point of view. This is, in any
event, independent of the personal ownership issue.
20. Nor do I, with respect, accept what was said by the Special Criminal Court regarding the
issue of independent supervision. It is true that accessing the contents of telephone
conversations without provision for independent supervision would be thoroughly
objectionable (and as is clear from Kennedy v. Ireland [1987] IR 587, this would
necessarily be true at both a constitutional as well as at an EU level) and that, as that Court
observed, there was no such access in the present case. It is also true that accessing the
telephone metadata is quite different from accessing the question of the content of such
calls. Yet the Court of Justice has clearly stated that even in this particular context that
independent control is vital. (This is also recognised in other not dissimilar domestic
contexts as well by many of our own judgments from ranging Damache to The People
(Director of Public Prosecutions) v. Quirke (No.1) [2023] IESC 5, [2023] 1 ILRM 225).
Perhaps, given the facts of this case, access to this data would always have been granted in
this instance by some independent body or court, but the importance of this safeguard
cannot nonetheless be blithely dismissed as unimportant or inconsequential.
Does the presumption of constitutionality have a significance in this context?
21. In this context both courts relied upon the presumption of constitutionality. For my part,
however, I do not think that the presumption of constitutionality can be relied on in the
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present case as if it was some kind of medical prescription which healed all underlying
legal infirmities. The presumption of constitutionality is, of course, a fundamental doctrine
of our national constitutional law. But it applies only in a context where the High Court,
the Court of Appeal and this Court are expressly empowered by Article 34.3.2° of the
Constitution to invalidate a law as unconstitutional. By contrast, under the Simmenthal
doctrine, the Court of Justice has no equivalent jurisdiction to annul a national law as
contrary to EU law. Such power as it enjoys is the distinct Simmenthal jurisdiction to
require that such a law be disapplied where it is contrary to the requirements of EU law:
see, in particular, the judgment of the CJEU in Minister for Justice and Equality (C-378/17,
EU:C: 2018: 979) at paragraphs 33-39 where this distinction is explained. So as the Court
observed (at para. 33) “a distinction must be drawn between the power to disapply, in a
specific case, a provision of national law that is contrary to EU law and the power to strike
down such a provision, which has the broader effect that that provision is no longer valid
for any purpose.”
22. The presumption of constitutionality does not however mean that the difficulties and
frailties associated with the application of national law in a manner compatible with EU
law cannot also be fairly obvious even in advance of any formal judicial pronouncement to
this effect. It is true, of course, that members of An Garda Síochána are simply called upon
to apply the law as it stands. The Gardai have no role in the enactment of legislation which
is, of course, exclusively a matter for the Oireachtas: see Article 15.2.1⁰. The question of
whether a particular item of legislation is unconstitutional is equally exclusively a matter
for the High Court, the Court of Appeal and the Supreme Court: see Article 34.3.2⁰.
23. Yet this cannot mean that the JC rule could never be triggered in advance of the date where
a court of competent jurisdiction actually declares the law in question to be
unconstitutional. Had this been so, one imagines that the JC majority would already have
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said so in that case. It should be recalled, of course, that JC concerned the application of
the exclusionary rule to evidence seized pursuant to a warrant which was later declared
invalid when the statutory provision under which it was issued was itself declared
unconstitutional. If there was indeed a rule which effectively precluded the application of
the JC test to actions taken by law enforcement officials in advance of some formal finding
of unconstitutionality, then JC itself would have been the obvious case in which to
announce such a rule. The hundreds of pages which take up even the majority judgments
in JC could all have been reduced to just a few pages if the presumption of constitutionality
had the effect now contended for.
24. One can test this hypothesis by reference to the following example. Let us suppose that the
Oireachtas was to enact legislation which provided for the warrantless search and seizure
of private homes. Let us further suppose that shortly after this legislation was enacted
members of An Garda Síochána conducted such a search and seized documents pursuant
to this new law, which law was subsequently found to be unconstitutional at some later
point. Is to be said that the JC rule could never apply because the search was conducted at
a time when the law was on the statute books prior to any finding of unconstitutionality and
because the prosecution could rely on the presumption of constitutionality for this purpose?
If that were the law, it would punch a hole in the effectiveness of our system of
constitutional remedies. It would mean that a judicially-created presumption designed to
give effect to fundamental separation of powers principles had in turn been allowed to
trump the Article 40.3 obligation imposed on the judiciary to defend and vindicate all
constitutional rights.
25. It should be recalled that the Long Title to the 2011 Act recites that one of the objectives
of the Act is to give effect to the (now annulled) 2006 Directive. Could any competent
lawyer have fairly concluded in the wake of Digital Rights Ireland that the 2011 Act could
20
nonetheless be safely utilised? The 2011 Act had itself been tainted in a profound way by
that judicial finding.
26. In any event, if the national law in question is in fact contrary to EU law it seems doubtful
if such a law can be said to enjoy any presumption of constitutionality. How could such a
state of affairs be said in any realistic way to conform to the statement in Article 29.4.4°
that “Ireland affirms its commitment to the European Union” if we are, in fact, maintaining
in force a law which is at odds with that very commitment? As I have just indicated, I am
doubtful in respect of any suggestion that the 2011 Act could be said to have enjoyed a
presumption of constitutionality after April 2014 given that the Long Title itself referred to
the legislation itself giving effect to a Directive, the existence of which had subsequently
been annulled by the Court of Justice.
27. Summing up on this point, I do not see the violation of Article 8 of the Charter which was
at issue here as some sort of purely technical violation of the kind for which the DPP
contended, and in respect of which submission the Special Criminal Court and Court of
Appeal evidently agreed. I see this rather a clear breach of the substance of the right
protected by Article 8 of the Charter as interpreted by the Court of Justice. Nor do I consider
that the presumption of constitutionality is in some way dispositive in and of itself of the
JC issue.
Part IV: The application of the JC exclusionary rule to the
case of a breach of an Article 8 Charter right
28. It is clear from the case law of the Court of Justice that the question of the admissibility
of evidence obtained in breach of the Charter is, in principle, a matter of national
procedural, subject only to the issues of equivalence and effectiveness. This was confirmed
(at [127] to [128]) by the CJEU in its recent decision, GD (Case C-140/20, EU:C: 2022:
21
258) concerning the aftermath of a finding that the 2011 Act was itself incompatible with
EU law:
“127. Finally, as regards the effect of a declaration of the potential incompatibility of
the 2011 Act with Directive 2002/58, read in the light of the Charter, on the
admissibility of evidence relied on against G.D. in the context of the criminal
proceedings, it suffices to refer to the Court’s case-law on that subject, in particular the
principles recalled in paragraphs 41 to 44 of the judgment of 2 March 2021,
Prokuratuur (Conditions of access to data relating to electronic communications) (C-
746/18, EU:C:2021:152), from which it follows that that admissibility is, in accordance
with the principle of procedural autonomy of the Member States, a matter for national
law, subject to compliance, inter alia, with the principles of equivalence and
effectiveness.
128. [. . .] The admissibility of evidence obtained by means of such retention is, in
accordance with the principle of procedural autonomy of the Member State, a matter
for national law, subject to compliance, inter alia, with the principles of equivalence
and effectiveness.”
29. A helpful re-statement of these principles is to be found in the decision of the Court of
Justice in Commission v. Spain (C-278/20, EU:C:2022:503). It is perhaps especially
relevant given that it involves the interaction of national constitutional law and EU law.
Article 106(2) of the Spanish Constitution provides that private individuals shall ‘under the
conditions laid down by law’ be entitled to compensation for damage to property where
this results from the operation of public services. The Spanish parliament passed such a law
in 2015, but the Commission later brought infringement proceedings pursuant to Article
258 TFEU claiming that the law infringed the principles of equivalence and effectiveness.
The essence of the equivalence claim was that the Spanish rules on compensation contained
22
in the 2015 law were more generous to a claimant where the loss flowed from a law
declared to be unconstitutional as compared with the rules which obtained where the
damage flowed from a breach of EU law.
30. While the Court condemned on various grounds the Spanish law as being contrary to the
principle of effectiveness, it rejected the argument that this amounted to a breach of the
principle of equivalence. The Spanish law had faithfully reproduced the conditions for State
liability established in cases such as Francovich (C-6/90 and C9/90, EU:C:1991:428) in
the case of an infringement of EU law and the Court found (at [179]) that Member States
were not obliged “to allow a right to compensation to arise under conditions more
favourable than those laid down by the case-law of the Court.”
31. The point here, of course, is that EU law itself stipulated the conditions applicable to State
liability in respect of a breach of EU law and it did so via the Francovich line of authority.
The fact that the Spanish legal regime had provided for a more generous regime in the case
of loss caused by the operation of unconstitutional legislation was in those circumstances
really beside the point.
32. The present case is, however, different, precisely because there are no EU law governing
the admission (or non-admission) of evidence obtained in breach of the Charter. If, for
example, EU law rules prescribed that such evidence was to be excluded only where mala
fides had been established, then it is clear from the Spanish case that there would be no
need to extend the JC rules applicable in the case of a domestic constitutional infringement
to that particular situation, precisely because the circumstances of the admission of that
evidence would have been governed by EU law. To repeat: there are, however, no EU law
rules on this topic and the converse of Commission v. Spain is that in such circumstances
23
we are in principle obliged to apply the domestic JC rules as the requirements of
equivalence are otherwise satisfied.
33. The principle of equivalence requires that all the rules applicable to actions apply without
distinction to actions alleging infringement of European Union law and to similar actions
alleging an infringement of national law: see, e.g., Levez (C-326/96, EU:C:1998:577 ) at
[41]; i-21 Germany and Arcor (C-392/04 and C-422/04, EU:C:2006:586) at [62]. Perhaps
the closest case on point is Transportes Urbanos y Servicios Generales (C-118/08,
EU:C:2010:39) where the Court of Justice held that an action for damages for breach of
EU law and an action for damages for breach of national constitutional rights were
sufficiently similar as to trigger the general application of the equivalence doctrine.
34. It is thus clear that the EU law principle of equivalence requires us to treat a breach of this
particular EU law right in the same way as we would treat a breach of a constitutional right.
While the Charter and the Constitution naturally have a separate scope and application,
they share a critical common characteristic in that both are a form of a “higher” law which
provide for the protection of fundamental rights. While the Constitution has no equivalent
to Article 8 dealing with personal data privacy, both instruments nevertheless protect the
general right to privacy. While in the case of the Charter this is to be found in Article 7,
Article 40.3.1° of the Constitution has also been interpreted by a series of judicial decisions
commencing with Kennedy v. Ireland [1987] IR 587 to embrace the right to privacy as a
derived “personal” right for the purposes of this provision. It may also be that a right to
private life is protected (either expressly or by necessary implication) by a series of other
specific constitutional provisions, such as, for example, Article 40.5 (inviolability of the
dwelling) and Article 40.6.1 (right of association): see MK (Albania) v. Minister for Justice
and Equality [2022] IESC 48.
24
35. In expressing this view I am not unmindful of the argument advanced by the Director of
Public Prosecutions to the effect that the JC exclusionary rule applies only to a breach of
express enumerated constitutional rights as distinct from unenumerated (or, to use the
contemporary phrase, derivative) constitutional rights as explained in the judgment of
Clarke C.J. in Friends of the Irish Environment CLG v. Government of Ireland [2020] IESC
49, [2021] 3 IR 1 at 51-52). It is said that the right to privacy is a purely unenumerated (or
“derivative”) constitutional right so that the JC rule does not apply or, if it does so, it only
applies in some attenuated form.
36. For my part, I find this submission unconvincing. In the first place, the distinction between
enumerated rights and those which are simply derivative is often simply just one of degree.
It would, for example, be hard to say that there was any real difference between the right
to bodily integrity as recognised by this Court as forming part of the constellation of
derivative constitutional rights protected by Article 40.3.1⁰ in Ryan v. Attorney General
[1965] IR 294 on the one hand and the express constitutional obligation imposed on the
State by Article 40.3.2⁰ to protect the “person” on the other. Nor, for all the reasons which
I set out in my judgment in MK (Albania), am I convinced that the right to privacy and/or
private life does not find expression in any of the Constitution’s range of enumerated
constitutional rights. Article 40.5 is an obvious case in point. As I put it in Sullivan v.
Boylan [2013] IEHC 104; [2013] 1 IR 510 at 522, the guarantee of inviolability of the
dwelling in Article 40.5 “is fundamentally directed at protecting the privacy interests of
those who reside in a dwelling against the world at large.”
37. Second, even if there was such a difference, it would not be material to the scope of
constitutional protection and the range of remedies provided by the Constitution. Thus, for
example, no one suggests that this Court could not find a law unconstitutional by reference
to some derivative or unenumerated rights: the decisions of this Court in McGee v. Attorney
25
General [1974] IR 287 and NHV v. Minister for Justice [2017] IESC 35, [2018] 1 IR 246
are simply two of the most prominent examples of where precisely this was done. So if this
can be done in respect of derivative constitutional rights, then one must ask why the JC
rule might not apply in the case of certain types of constitutional rights? The object, after
all, of the exclusionary rule is to safeguard the integrity of the Constitution and to vindicate
all the rights (express and implied) which it protects. The drawing of such a distinction
would be at odds with that fundamental objective which is cast upon all judges by virtue of
Article 34.6.1.⁰ to uphold and to protect the Constitution. It would be a distinction without
a difference and, if that were the rule, it would give rise to pointless and unprofitable
questions of characterisation as to whether the right in question was an express one or was
simply implied or derivative in character.
38. One way or another, therefore, the general right to privacy is protected by Charter and
Constitution alike. In that respect, it is plain that both instruments are sufficiently similar
for the purposes of the application of the EU equivalence principle. It follows, therefore,
that the breach of Article 8 of the Charter dealing with data privacy should be treated in the
same way as the application of our rules regarding the exclusion of unconstitutionally
obtained evidence.
39. In this regard, I confess that I find myself unpersuaded by the reasoning of the Special
Criminal Court (as affirmed by the Court of Appeal) on the application of the exclusionary
rule. As I read the application of the exclusionary rule by these courts in the present case it
seems to suggest that because the violation (if indeed it occurred) of the accused’s rights
under the Charter was so technical and fleeting and the public interest in suppressing
serious crime is so important that the evidence should be admitted.
26
40. Apart from the fact that the reasoning of the Court of Justice in the Digital Rights
jurisprudence compels us to regard the breach of Article 8 of the Charter as “particularly
serious”, the reasoning of both courts also seems, with respect, to hark back to an era pre-
dating this Court’s decision in The People (Attorney General) v. O’Brien [1965] IR 142.
One enduring criticism of this earlier line of case-law is that it seemed simply to pay lip
service to the application of any exclusionary rule: where in practice, no matter what the
illegality or unconstitutionality in question, there were almost always reasons which were
justified by reference to the public good whereby such evidence was admitted. All of that
changed with a series of decisions from the mid-1970s (such as The People v. Madden
[1977] IR 336) right up to the seminal decision of this Court in The People (Director of
Public Prosecutions) v. Kenny [1990] 2 IR 110. In Kenny this Court held that evidence
obtained in breach of a constitutional rights should, in general, be automatically excluded.
41. The decision in Kenny was itself over-ruled by this Court in JC. I do not propose to rehearse
all the arguments advanced by both majority and minority in that case. As the majority
pointed out in JC, if Kenny went too far, O’Brien did not go far enough. Here I find myself
in entire agreement with the judgment of Clarke J. in JC. In his judgment he observed that
([2017] 1 IR 417 at 764) that:
“…where evidence is taken in circumstances of unconstitutionality, but where the
prosecution establishes that same was not conscious and deliberate in the sense already
identified, the evidence should be admitted if the prosecution can also establish that the
unconstitutionality concerned arose out of circumstances of inadvertence or by reason
of developments in the law which occurred after the time when the relevant evidence
was gathered. I consider that including an exception of this type properly meets the
balance of interests engaged in this case. It is illustrative to look at the facts before us.
As a result of a subsequent decision of the courts [in Damache v. Director of Public
27
Prosecutions [2012] IESC 11, [2012] 2 IR 266], it became clear that a particular form
of warrant was invalid. That legal fact was not known at the time of the evidence
gathering at issue in this case. It is true that some doubts had been expressed over the
constitutional validity of the relevant measure, but it remained on the statute book and
enjoyed the presumption of constitutionality. In what way could it be said that it would
encourage enforcement and investigation authorities to remain within the boundaries of
their legal power if evidence is to be excluded by reference to legal decisions not even
taken at the time when the power in question was exercised?
It seems to me that, likewise, inadvertence, such as that which was present in O'Brien,
should not lead to the exclusion of otherwise probative evidence. It is true that imposing
a rule of almost absolute exclusion (which rules out evidence even in cases of
inadvertent breach of constitutional rights) might act as a somewhat greater
encouragement to authorities towards strict compliance with their obligations.
However, the price to be paid for that exceptionally high level of encouragement
involves an inappropriate balancing of the interests concerned. On the other hand, if,
short of a deliberate and conscious act, evidence is taken in circumstances of
recklessness or gross negligence, then a different balancing exercise arises, for it is
important that those involved in investigation and enforcement know that they cannot
expect that reckless or grossly negligent actions will not have serious consequences for
evidence gathering.
To rule otherwise would be to place the level of encouragement to compliance at too
low a level. It is important to make clear, in that context, that the term "inadvertent"
cannot be said to include a case where any relevant person acted in a manner which was
reckless or grossly negligent….” (Emphasis supplied)
28
42. As the decision of the majority in JC makes clear, the evidence obtained in that case was
admitted precisely because it had been obtained pursuant to a search warrant issued under
s. 29 of the Offences against the State Act 1939 prior to the decision of this Court in
Damache which held that section to be unconstitutional and precisely because this very
finding of unconstitutionality could not have been anticipated in advance. This was a classic
example of where the unconstitutionality arose, in Clarke J.’s words, by reason “of
developments in the law which occurred after the time when the relevant evidence was
gathered.”
43. The same can equally be of the decision in Quirke (No.1) so far as the requirements in
respect of the granting of search warrants in respect of home computers was concerned. As
Charleton J. observed (at [45]) in The People (Director of Public Prosecutions) v. Quirke
(No. 2) [2023] IESC 20 this was a significant development in the law regarding personal
digital privacy:
“The very fact that such a development could not reasonably have been anticipated by
law enforcement officers was itself a reason as to why the JC exception applied,
permitting the reception of evidence which had otherwise been unconstitutionally
obtained. where the common law develops so as to recognise privacy rights as requiring
protection in a previously overlooked area, as in Quirke (No 1), there can be no
deliberate disregard of the legal order in law-enforcement officers standing on the firm
ground of what the law then was. This is recognised in existing precedent.”
44. I do not think that the same can be said in the present case, precisely because after Digital
Rights Ireland the use of the 2011 Act was known to be fraught with risk. Consider the
relevant facts. This is not a case like that of the decision of the Canadian Supreme Court in
R. v Fearon (2014) SCC 77, [2014] 3 SCR 621 where Cromwell J., speaking of a
warrantless search of a mobile telephone, said (at [94]) that “if the police faced a grey area,
29
it was a very light shade of grey, and they had good reason to believe, as they did, that what
they were doing was perfectly legal.”
45. By contrast, in the present case the lights were already flashing red once the 2006 Directive
was annulled with the decision of the Court of Justice in Digital Rights Ireland in April
2014. This decision, so to speak, set off the fire alarms with the collapse of the very
proscenium arch which had up to that point supported the entire legal edifice of data
retention. The subsequent CJEU decision in October 2015 in Schrems (C-362/14, EU:C:
2015: 650) clearly showed that at least some other parts of the legal edifice of data
protection were crumbling and that masonry was falling. To continue with this figure of
speech, that Court’s decision in December 2016 in Tele 2 Sverige signalled that there was
thick smoke all over the building with fires everywhere. By the time of the publication of
the Murray Report (Review of the Law on the Retention of and Access to Communications
Data) by the former Chief Justice in April 2017 (which, as we have seen, had expressed
the view that our national law was clearly in breach of EU law) it was clear that breathing
apparatus was necessary to enter the building which was by then in real danger of total and
complete collapse. Viewed objectively, no one could or would have said that in June 2017
they had good reason to believe that the continued use of the 2011 Act was, in the words
of Cromwell J. in Fearon, “perfectly legal.”
46. This conclusion is unaffected by the fact that at the time of the decision of this Court in
Dwyer in February 2020 – almost three years later after the first application to access the
telephone metadata - this Court subsequently indicated that EU law might in principle
permit at least aspects of the 2011 Act with the requirements of Article 8 of the Charter
prior to making an Article 267 TFEU reference on this very point to the Court of Justice.
47. While this Court was admittedly sceptical as to the compatibility of the retention
provisions contained in the 2011 Act with EU law, the existence of these judicial dicta from
30
this Court (or, for that matter, a range of other Article 267 references from a variety of other
continental apex courts seeking to clarify aspects of Digital Rights Ireland and Tele 2
Sverige) are really not directly in point. I can fully understand why this Court found it
necessary to make the Article 267 reference which it did in Dwyer. There were aspects of
the earlier case-law which were admittedly unclear and, moreover, the issues had just arisen
in the course of an actual criminal prosecution in respect of a very serious crime. It is
perhaps not at all surprising that this Court might in those circumstances have wished to
bring new certain arguments and issues to the attention to the Court of Justice in the course
of the Article 267 reference. This, after all, is part of the judicial dialogue which is
presupposed by the existence of the Article 267 reference procedure.
48. To my mind, however, the fact that this Court was fully justified in making the Article 267
which it did in Dwyer is not in any sense dispositive so far as the application of the JC test
is concerned. The application of the JC test is not posited on the absence of a reasonable
belief in the legality of the State actions on the part of the State actors, but rather whether,
viewed objectively, the actions of the law enforcement agencies were either reckless or
grossly negligent having regard to the state of affairs at the time that they were taken.
49. If there were to be a requirement that JC applied only where the unconstitutionality of the
law was all but certain or had been judicially established, this would effectively confine the
application of the JC test only to those cases where there was something approaching
misfeasance or actual knowledge of the unconstitutionality in question. Such a stringent
test was clearly rejected by the majority in JC. If that were indeed the law, it would
represent the judicial equivalent of this Court commanding the legal ravens to fly home to
Valhalla with their tidings of doom, as such would portend the twilight of the exclusionary
rule and presage its ultimate collapse.
31
50. It is true that the final collapse of the 2011 Act only came in May 2022 when the State
conceded before this Court that the 2011 Act was incompatible with EU law. This was a
finding which had been rendered inescapable by the decision of the Court of Justice in GD
a few weeks earlier. Yet in many ways GD represented simply the ultimate dénouement of
an Act whose very foundations had long since been undermined in April 2014 with the
decision in Digital Rights Ireland.
51. In those circumstances the continuation of the 2011 Act regime was, I have already said,
fraught with high risk. Viewed objectively, I find myself obliged to conclude that the
continued use of this 2011 Act regime in June 2017 was reckless or grossly negligent in the
sense described by Clarke J. in JC, even in advance of some formal judicial declaration that
it was contrary to EU law. I think it would instead be fair to say that in June 2017 – at the
time when the first request to access the metadata at issue in the present case was first made
–there was would have been a high degree of scepticism in those legal circles familiar with
these developments as to whether the Gardaí could safely have proceeded in the fashion in
which they did. Of course, none of this is to ascribe personal blame to the individual
members of An Garda Síochána who utilised this system then in force and who sought to
grapple with the law as they encountered it. The test, however, is an objective one and its
application is not in any sense dependent on the personal knowledge of individual Gardaí.
52. While I agree that the suppression of serious crime is of course an important public interest,
so too is the maintenance of the rule of law and respect for the application of EU law in
general law and the Charter in particular. Any other conclusion would be tantamount to
saying that these breaches of Article 8 of the Charter were immaterial and would fail to
give due weight to the import of a series of decisions of the Court of Justice commencing
with Digital Rights Ireland onwards. Contrary to the views which were expressed by the
Special Criminal Court in the present case it must again be recalled that the Court of Justice
32
in Digital Rights Ireland viewed these breaches of data privacy ([at 37]) as “particularly
serious.”
Part V - Conclusions
53. This Court must take Article 8 of the Charter (and the CJEU case-law interpreting the
Charter) as we find it. It may be that as so judicially interpreted Article 8 of the Charter has
itself become part of the problem it was originally designed to solve, but, if so, that is not
my affair.
54. Viewed from that standpoint, I consider that the Special Criminal Court and the Court of
Appeal erred in law in the manner in which they handled the admission of this crucial
telephone metadata evidence. Viewed objectively, the conclusion that the continued use of
the 2011 Act in June 2017 and November 2017 by members of An Garda Síochána was
reckless and grossly negligent (in the sense in which these terms were used by Clarke J. in
JC) is unavoidable even though there had been no formal finding that the 2011 Act was
itself contrary to EU law as of these dates and even if no personal criticism can or should
be ascribed to individual Gardaí who were simply doing their job. Applying then the JC
test, it follows that this evidence ought not to have been admitted by the Special Criminal
Court.
55. It follows in turn that Mr. Smyth’s conviction – based as it is in large part on the admission
of this telephone metadata evidence – cannot stand. I would accordingly quash that
conviction and invite further submissions as to whether in the circumstances a re-trial
should be ordered.