Quick Q&A:
1. Does it mean GD’s conviction is overturned? No. That’s a matter for the Court of Appeal.
2. Will the Court of Appeal do so? Probably not. There are exceptions for evidence gathered lawfully at the time, which becomes unlawful due to “subsequent legal developments"
1. Does it mean GD’s conviction is overturned? No. That’s a matter for the Court of Appeal.
2. Will the Court of Appeal do so? Probably not. There are exceptions for evidence gathered lawfully at the time, which becomes unlawful due to “subsequent legal developments"
3. What about the rule that evidence must be excluded if obtained by a “deliberate and conscious” breach of rights?
This is more difficult. Does the state fail this test when it knows that there is a CJEU judgment striking down the underlying EU law? The timeline matters here.
This is more difficult. Does the state fail this test when it knows that there is a CJEU judgment striking down the underlying EU law? The timeline matters here.
The Supreme Court in JC was very hostile to the idea that evidence would be inadmissible due to later judgments, even if there are “doubts”: 
So Graham Dwyer probably won’t succeed in his appeal arguing that the phone records should be inadmissible, given that the CJEU judgment postdates his crimes and trial.
4. What about others convicted using phone data?
In April 2014 (DRI) the Irish state knew data retention was on very shaky ground. In December 2016 the CJEU confirmed national laws were covered by this principle (Tele2). In April 2017 the state received a report from...
In April 2014 (DRI) the Irish state knew data retention was on very shaky ground. In December 2016 the CJEU confirmed national laws were covered by this principle (Tele2). In April 2017 the state received a report from...
… the former CJ confirming that existing law was in breach of EU law (Murray report).
It seems to me likely that more recent convictions could be challenged on this basis. Your guess is as good as mine whether the SCt would agree, and where the cutoff date might be.
It seems to me likely that more recent convictions could be challenged on this basis. Your guess is as good as mine whether the SCt would agree, and where the cutoff date might be.
