A “blanket” ban imposed by the European Court of Justice on general metadata retention in the fight against serious crime means privacy rights “trump” the rights of crime victims to a fair judicial process, a Supreme Court judge has said.
“Nullifying an entire category of proof undermines the justice system,” said Mr Justice Peter Charleton, outlining concerns.
Investigations into Graham Dwyer’s 2012 murder of Elaine O’Hara, the 1996 murder of crime journalist Veronica Guerin and the 1998 bombing of Omagh, killing 29 people, demonstrate the “centrality of metadata” in combating all forms of crime.
The CJEU’s (Court of Justice of the European Union) “activist” interpretation of article eight of the EU Charter, promoting data security, has become an “elevated” privacy right, which justifies nullifying crucial information” with the effect of “shielding criminals, undermining civil trials and obstructing searches for missing persons”.
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Law “should be based on good sense” and common sense suggests the search for the truth “is most likely to yield results when a court receives all available, relevant information”, he said.
The concerns are set out in a detailed article, co-authored by the judge, writing in a personal capacity, and researcher Victoria O’Connor. It was published last month in the Cambridge Law Journal.
The authors set out the development of CJEU case law concerning privacy rights and data retention before and since the landmark 2014 Digital Rights Ireland case, which declared the EU’s 2006 data retention directive invalid for permitting general and indiscriminate data retention.
A 2016 CJEU judgment extended that ruling by holding that EU member states could not implement general and indiscriminate data retention schemes for law enforcement purposes.
However, further decisions saw the court allowing more data retention flexibility in the face of serious threats to national security.
In 2022, the CJEU upheld Graham Dwyer’s challenge to Ireland’s laws permitting the general and indiscriminate retention of metadata. Retention for combating serious crime must be targeted, proportionate and limited to categories of people or geographic areas for limited times, it said.
Digital evidence can play a key role in 85 per cent of big criminal investigations, the authors said.
The alternative models of targeted data retention posited by the CJEU, they argued, are not based on experience and are “unworkable and impractical”.
The “quick-freeze” of metadata – a workaround solution proposed by the CJEU – is “ill-suited” to crimes committed via electronic means or raising cross-Border issues. Crimes of sexual exploitation, cyberattacks or complex organised criminality, they said, are often detected much later.
Prior authorisation for inert data storage could not, they said, have solved the Guerin or Omagh murders, with several suspects beyond suspicion and geographical range would involve “guesswork”.
Criminals do not advertise themselves such as to raise prior suspicion or house themselves in groups such as to provide for geographical targeting, they said.
It was because of Dwyer’s travel to various locations that the metadata in the investigation into the murder of Elaine O’Hara became significant, they said.
Multiple references in CJEU decisions to “mass surveillance” moved the “inherently commercial and incomprehensible” stored nature of billing information “into the realm of 1984”.
“No one within the EU is under surveillance because a commercial entity keeps information to support charges.”
The Europol, Eurojust and European Judicial Network 2024 report on cross-Border access to electronic evidence in criminal investigations and proceedings had observed that this type of data often constituted “the only investigative lead”.
No convincing clearly established conclusion emerges from the several judgments of the CJEU and the exceptions to the blanket ban identified by it in a number of cases “undermine, rather than support, any articulated core principle”, the authors argued.
