A senior judicial adviser to the European Court of Justice (ECJ) will give an opinion on Thursday on the far-reaching challenge by convicted murderer Graham Dwyer over Ireland’s mobile phone data retention regime.
While not binding on the court, the advocate general’s opinion could have a significant influence on its final judgment addressing data rights issues, not just affecting Dwyer’s bid to overturn his conviction but the battle against serious crime in all EU member states.
A core concern of Ireland and other member states is to establish exactly what safeguards are necessary to enable data retention in accordance with EU law.
There is no indication yet when the final ECJ judgment will issue but it could take several months. Its findings will be taken into account by the Supreme Court in deciding the State’s appeal over a High Court data retention ruling in favour of Dwyer.
Mobile phone data played an important role in securing his conviction in 2015 for the murder of childcare worker Elaine O’Hara in August 2012.
He later brought a High Court challenge to the Irish legislation under which the data was held.
The Irish law – section 6 of the Communications (Retention of Data) Act 2011 – was based on a 2006 EU directive on data retention. That directive was struck down by the ECJ in 2014 on grounds the universal and indiscriminate retention of mobile phone and internet data breached privacy and data protection rights.
In light of the ECJ decision, the High Court agreed with Dwyer’s lawyers that the 2011 law was contrary to EU privacy law because it allowed for indiscriminate data retention without adequate safeguards, including a prior independent overview of data access requests. The State appealed that decision to the Supreme Court, which referred issues of EU law to the ECJ.
The ECJ is addressing those and similar issues in two cases referred to it by the German and French courts.
In submissions in the Dwyer hearing last September, Attorney General Paul Gallagher told the ECJ the ability of law enforcement agencies to use retained data was essential to upholding the values of justice and the rule of law. Remy Farrell SC, for Dwyer, argued Irish law allowed for minimal protection of data privacy rights and was contrary to EU law.
In a significant judgment last October on a separate case raising similar issues, the ECJ confirmed that EU law precludes national law requiring an electronic communications services provider to carry out indiscriminate transmission or retention of traffic and location data for combatting crime in general or safeguarding national security.
It provided for derogations allowing member states, where there is a genuine national security threat, to allow for time-limited indiscriminate retention of data. Member states may also provide for targeted and expedited retention of data for combatting serious crime and preventing serious threats to public security. Such interference with fundamental rights must be subject to effective safeguards and be reviewed by a court or independent authority, the ECJ said.
Following the October judgment, regarded as a potentially important marker of the thinking of the ECJ on the issues raised in Dwyer, the Supreme Court was asked by the ECJ whether it still wanted an answer to the questions it had referred in the Dwyer case. The Supreme Court said it did.
The final ECJ and Supreme Court decisions are likely to have implications for Dwyer’s separate appeal against his conviction, for which a date has yet to be fixed.
Jail for banned motorist from Limerick caught driving on Christmas shopping trip to Belfast
A banned motorist from Limerick caught driving on a Christmas shopping trip to Belfast has been jailed for seven months.
Police also discovered three of Leeanne McCarthy’s children not wearing seat belts when her car was stopped on the Westlink dual carriageway.
The 41-year-old mother-of-eight initially gave officers a false identity, prosecutors said.
Belfast Magistrates’ Court heard a PSNI patrol car stopped the Ford Focus on November 26th last year.
McCarthy, with an address at Clonlough in Limerick, provided a different name and claimed she did not have her licence with her.
However, checks revealed that a month earlier she had been banned from driving for five years.
A Crown lawyer said: “Three young children were in the rear of the vehicle, none of them wearing seat belts.”
McCarthy initially claimed they only removed the safety restraints when the car came to a halt, the court heard.
Police were told that she took over driving duties from another daughter who had been tired and nearly crashed the vehicle.
McCarthy was convicted of driving while disqualified, having no insurance, obstructing police and three counts of carrying a child in the rear of a vehicle without a seat belt.
Her barrister, Turlough Madden, said she had travelled to Belfast for Christmas shopping.
Counsel told the court McCarthy spent the festive period in custody, missing out on sharing it with her eight children and four grandchildren.
“That’s been a wake-up call and significant punishment for her,” Mr Madden submitted.
“She is a mother who simply wants to go back to Limerick and not return to Northern Ireland.”
Sentencing McCarthy to five months imprisonment for the new offences, District Judge George Conner imposed a further two months by activating a previous suspended term.
Mr Conner also affirmed the five-year disqualification period and fined her £300 (€350) for the seat belt charges.
Suspects in UK citing ‘inhuman’ Irish jails to try halt extradition
Criminal suspects abroad who are wanted by the Irish authorities are attempting to prevent their extradition on grounds of “inhuman” prison conditions here.
A number of legal challenges have been taken in the UK on such grounds since the extradition system was overhauled last year as a result of Brexit.
Most of the challenges are based on reports of overcrowding and “slopping out” – the manual emptying of containers used as toilets in cells overnight – in the Irish prison system.
Although none have been successful to date, in at least one case the Irish authorities have been required to offer assurances that a prisoner would not be forced to “slop out” in order to secure their extradition.
The case, which was finalised in the Scottish High Court last week, concerned a man wanted in Ireland for several domestic abuse-type offences. The man objected to his extradition on the basis that he may be forced to “slop out” or have to use the toilet in open view in front of cell mates in an Irish prison.
He cited a 2020 Council of Europe report which found the “degrading” practice of “slopping out” was still present in some prisons despite efforts by the authorities to abolish it.
The report also found almost half of the prison population still have to use the toilet in the presence of other prisoners.
A Scottish judge said such a system would carry “at least a strong presumption” of a breach of the European Convention on Human Rights.
However, after receiving a letter from a senior official in the Irish Director of Public Prosecutions’ (DPP) office that the suspect would not have to slop out during any prison sentence, the extradition was approved.
“The Irish Prison Service has confirmed that [the suspect] will not be placed in conditions where he is required to ‘slop out’ – either on remand or in the event that he is committed to a term of imprisonment,” the DPP official wrote.
The issue of prison conditions is one of a number of obstacles faced by the State in extraditing suspects to and from Ireland post-Brexit.
After the final withdrawal of the UK from the EU in January 2021, the European Arrest Warrant (EAW) system, which allowed for the rapid and simplified extraditions of prisoners to and from the UK, was replaced by a new system laid out in the Trade and Co-operation Agreement (TCA) struck between the EU and UK.
In recent times, there were about 90 outgoing extradition warrants issued by Ireland per year, with about 70 per cent of those going to the UK. In 2021, that figure dropped by about half amid legal uncertainties surrounding the new system.
Officials in the DPP’s office had anticipated such issues may arise under the new system and sought to fast track as many extraditions as possible before its implementation. In 2020, it applied for about 180 extradition warrants, double the usual figure, ahead of the final withdrawal of the UK from the EU.
The new TCA system has also been subject to objections by suspects in Ireland wanted by the UK authorities. Last year, the Supreme Court referred two cases to the Court of Justice of the EU (CJEU) where the applicants claimed they could not be handed over the UK under the new system.
In November, the CJEU ruled the TCA system allows the men to be extradited. The ruling was a source of considerable relief to officials in the offices of the Attorney-General and the Chief State Solicitor as it was seen as a vindication of the new system.
Isabel Allende: ‘There is a real war against women’ | USA
The world’s best-selling Spanish-language author talks feminism and love in later life as she unveils Violeta, a novel about the world between two pandemics.
Isabel Allende published her debut novel at the age of 40, finding global success with The House of the Spirits, about the tangled history of a Chilean family leading up to the years of the country’s dictatorship. This was followed by almost 30 books that have sold around 70 million copies in 42 languages. Now on the verge of turning 80, Isabel Allende lives a semi-reclusive life in San Francisco and will publish the English-language version of Violeta, her latest novel, next week. This new tale begins in the 1920s with the havoc wreaked by the so-called Spanish flu, and ends 100 years later in the midst of our own pandemic.
This perfect ellipsis is used to pay homage to her mother’s generation, though it never neglects her usual themes: domination, power, women’s aspirations to enter forbidden spaces, freedom, loyalty and love. Allende believes that Chile has a new chance with the election of the youthful left-winger Gabriel Boric, and is proud to have become a passionate old woman. She speaks openly of her marriages and relationships, of the death of her daughter Paula, and the fear of love she sees in her grandchildren’s generation.
What follows is an edited version of her interview with EL PAÍS.
Question. Your new novel, Violeta, begins with the wrongly-named Spanish flu and ends in the times of Covid-19. What a good tool literature is for tracing historical ellipses, don’t you think?
Answer. It was almost natural that it came out that way. The idea was born when my mother died, a year before the pandemic. If she had lived another year, she would have been 100 years old. She was born in a pandemic, because the flu arrived in Chile in 1920, and she would have died in another one. When she died, many people told me to write her story. We had an extraordinary relationship. But she was always submissive, first to her father and then to her husband. There is no self-fulfillment for a woman if she cannot support herself. If you depend on someone else to pay your bills, you have to bow down. And that was my mother’s fate, even though she was a very creative woman. As I wrote, not knowing what Violeta would become, I think that deep down she is the woman I would have liked my mother to be.
Q. Your mother was an artist, she painted?
A. She painted and had an eye for business. If her father and husband had listened to her, they would have ended up rich. She knew instinctively where to invest.
Q. What sets your generation apart from your mother’s? In a short time a big gap was created.
A. My generation went out on the streets, and many went to college, although I didn’t. They looked for work and they earned a living. But this is within a specific social class. The humblest and hardest workers have always supported their families; I am talking about that class of girls who were educated to be wives and mothers.
Q. You have always been interested in inventing women with grit and determination.
A. I am surrounded by them! Extraordinary women. Often I find a human model to develop as a character, but I’m overwhelmed by reality because they achieve things I would never have dreamed of.
Q. Reality itself is often an exaggeration… should we suppress that in fiction?
A. Exactly. When I wrote The Infinite Plan, based on my second husband William Gordon, there were critics who argued that no one could have all that happen to them, yet I had to cut some things out to make it believable. Fiction must be believable, and at times life is not.
Q. What are your work’s obsessions? What questions are still present and what answers have you not found?
A. They are always the same: love and death. Violence, the need for justice, loyalty and courage. And a subject that haunts me: power with impunity, both in the family and in society.
Q. You fail to mention feminism. You say that the key to that movement is not what women have between their legs, but between their ears.
If Boric manages to do half of what he intends to, it will already be a step forward
A. Of course, that has marked my whole life! We live in a patriarchy. Morals, laws, everything is mostly done by men. We women have to find loopholes to let our voices be heard. More and more often we are succeeding. But we are not there yet. There is a real war against women.
Q. The problem in the West is that there is a far right wing that maintains that the patriarchy is in danger and that the loopholes to which you allude are already too numerous. What do we do?
A. Didn’t I tell you that we live under a patriarchy? By that logic, they don’t like any gains from the other side. But women have been tearing bits and pieces out of the situation little by little. And they will succeed, but I will not be alive to see it. Even so, I feel the rumbling underground energy of young people. Look at what just happened in Chile.
Q. I was thinking that too.
A. A young man like Gabriel Boric, 35 years old, has won [a presidential election]. Who voted for him? 63% of women and three out of four young people too. I feel that energy, and that is why I am very optimistic about the future. They are not going to stand idly by as these old fogeys run the world.
Q. What do you think these elections crystallized?
A. What has been going on for many years. Inequality, discontent, corruption and impunity produced an outburst in 2019. They did not really know what they were demanding. It was not just the price of a subway ticket, although that served as an excuse: it was privatization, the state of education, the scandalously miserable pensions, the complete corruption of the whole system. They demanded a new constitution. Democratic, and not imposed from above as has happened with all of them since the beginning. The pandemic sent everyone home and it all seemed to be frozen, but the election came along and it had not been forgotten, far from it. Things are happening there.
Q. Of course.
A. If Boric manages to do half of what he intends to, it will already be a step forward. His acceptance speech summarized in 17 minutes the great aspirations I have for Chile: inclusion, equality, women, diversity, democracy, respect for nature. If he succeeds, it will be a huge step forward. If the CIA doesn’t get involved, of course.
Q. How has that young woman who you once were, going into exile, been stirred up during the months of campaigning?
A. It’s been a long time. We live in another country, in another world. I notice a little wink from Boric to Allende. But I never think about that girl anymore.
Q. Is she someone you have definitely left behind?
A. Yes, deep down, when I go to Chile, I feel like a foreigner. The dictatorship changed it completely. It’s another country. I feel Chilean if I talk to people, but if I go there, I feel as foreign as in the United States, where I live.
Q. So you define yourself as a foreigner and you’re not at all nostalgic?
A. I am nostalgic for that time when I felt I belonged somewhere. But it is a sentimental, romantic and very unrealistic nostalgia.
Q. A kind of nostalgia, on the other hand, that is good for your work?
A. Yes, because that’s where my roots nourish me. This last book, for example, although I never mention it, I could not have written it if I did not come from Chile. I carry it here, in my heart.
Q. Violeta also carries things in her heart. For example, when one does the formula “wife plus mother equals boredom,” it’s mathematics. Isn’t it the same equation that you confess to having experienced in your first marriage?
A. Yes, it certainly draws on personal experiences. My first husband, Miguel Frías, was like Violeta’s first husband: respectable and a good person. Then came the passion I experienced in Venezuela with an Argentinean. He made me leave that first husband and my children, but it didn’t last, and I quickly became disillusioned. When I feel that affection, mutual respect and admiration is over, that’s it. Ciao!
I think it takes more courage to stay in a relationship that doesn’t work than to leave
Q. Even so, you got married again.
A. Yes, to a fascinating, adventurous man who at first you weren’t sure if he was a criminal or not, and that was Willie Gordon. But that too ended when I noticed that on his side the affection had stopped. I could have gone on, but as soon as I realized it, it was “Ciao!” again. I got divorced at 74 and people said, “What? You are going to be all alone.” Well, I think it takes more courage to stay in a relationship that doesn’t work than to leave.
Q. And then Roger came into your life. Your third partner.
A. Roger gives me what I need: a lot of love. The rest I can get on my own. But I can’t allow myself that unless I get it as a gift. And he gives it to me!
Q. Does this fulfill your aspiration to become what you were looking for, a passionate old woman?
A. I’ve been training all my life for that. Don’t you think that you can just get to old age and be passionate, you have to train for it.
A. By taking risks. By throwing yourself into adventures, participating in life with curiosity about others and the world, not settling in where you feel good. I see young people my grandchildren’s age who have cautious relationships, who don’t want to suffer. What are you going to do with your life if you don’t want to suffer?
Q. They are often overprotected by their parents. Is that good or unrealistic? Shouldn’t they suffer a little more?
A. That’s what I say, let them suffer a little. Gentle neglect works well for children. That’s how I raised Paula and Nicolás. I held down three jobs simultaneously when I was raising them, I didn’t have time to keep an eye on what they were doing. I suppose they took a lot of risks and did stupid things, but they also grew up without me monitoring everything.
Q. The happiest moments of your life, you say, were when you held them in your arms for the first time, and the saddest, when you held Paula, who was dying. Have you been able to turn that grief into something positive?
A. Yes, into action. Writing the book about my daughter, Paula, helped me to put it into words, to understand what had happened. Her year-long agony was a very dark night. Everything was a haze of pain and anguish. When I started organizing it, based on things I had written to my mother and the notes I took, I realized that my daughter’s only way out was death. I had to accept it, understand it, try to get rid of the rage I had built up from that neglect that gave her severe brain damage. Nobody tried to hurt her on purpose; it was a series of circumstances. I received thousands of letters, as there was no internet. And by answering them, all of them, I was developing a communication process with people. Everyone has suffered losses and pain. That was extraordinary. I feel Paula everywhere. I won’t say I’m seeing ghosts, but it’s a very strong feeling. And the proceeds from that book went to a foundation that is dedicated to doing what she would be doing if she were alive, defending the fundamental rights of women and children.
Q. Which is more painful and which is celebratory, writing about one’s parents or one’s children?
A. I don’t know. I make use of them all: parents, grandparents, children, cousins… When I published The Sum of Our Days, my son Nicolás told me: “Please, mom, don’t ever write about me again. I have a private life and I don’t want to expose my family.” And I didn’t. It’s been 15 years since that memoir and no more.
Q. After Paula, in Aphrodite you paid tribute to aphrodisiacs. Did it work for you?
A. I was lucky that book was published four months before Viagra appeared. Otherwise, not a single copy would have been sold.
Q. Thank goodness!
A. After Paula was published, I couldn’t write anything. Everything came out flat, gray, boring, impossible. I remembered that I was a journalist and I looked for a subject that was as far away from grief as possible: love, gluttony, sex. And the bridge between these are aphrodisiacs, so when I researched and tested the recipes with friends…
Q. Tell me which ones really work.
A. None, the only thing that works is imagination.
Q. The same in men as in women?
A. Especially with women, we romanticize everything, we get sentimental, we make up stories because we find that much more stimulating than anything else. Men are very visual. I don’t know if Playboy magazine still exists. They have tried to make those magazines for women and they don’t work. They’re bought by homosexuals. We don’t get turned on by seeing a half-naked man, we get turned on by having something whispered in our ear. The G-spot is in the ear, you don’t need to look for it elsewhere.
Q. Wise advice at almost 80 years old!
A. I’m almost there!
Q. Do you plan your books much?
A. Nooooo! Except if they deal with historical episodes. I’ve learned after 40 years of writing to relax, to not try to force either the story or the characters with what I previously thought it should be. If I let myself go by instinct and enjoyment, discovering what happens, it usually works much better. There is a very intuitive part to writing.
Q. Many consider you to be one of the very few female voices of the Latin American Boom, a very masculine movement.
A. Well, that’s what they said when House of the Spirits appeared, that I was the only woman in that movement. But then they quickly erased me, I don’t know why, and labeled me as post-Boom. And you know what? Nobody likes to be considered “post” anything.
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