Dwyer awaits decision on his action

Graham Dwyer.

One of the country’s most notorious convicted killers is awaiting a decision on an action he is taking to strike down Ireland’s communication data laws.

Graham Dwyer claims that the data gathered by gardaí from his mobile phone under powers in the Communications (Retention of Data) Act 2011 should not have been used at his trial in the Central Criminal Court.

The Cork-born architect was sentenced to life imprisonment in April 2015 for the murder of Elaine O’Hara, whose remains were recovered at a forest at Killakee in the Dublin Mountains in September 2013.

Communication data, including location data, gathered from Dwyer’s work phone placed the phone at a specific place at a particular time.

That data was used to link Dwyer to another mobile phone (referred to as the “master phone”) that the prosecution said Dwyer acquired and used to contact Ms O’Hara.

Ms O’Hara used another mobile phone (referred to as the ‘slave’ phone), which was recovered by gardaí.

The garda investigation traced the movements of both phones and the times of contacts between them.

Dwyer, who denies killing Ms O’Hara, is claiming the provisions are unconstitutional and breach his rights under the EU Charter and the European Convention on Human Rights, including the right to privacy.

In his action, Dwyer is citing the 2014 ruling of the European Court of Justice, which declared the 2006 EU directive to be invalid.

The court said the directive failed to make express provision for sufficient safeguards for the protection of fundamental rights.

It made the judgment in relation to a case taken by Digital Rights Ireland against the minister for communications, which was referred by the Irish High Court to the ECJ.

Dwyer’s counsel claims that the 2011 Act suffers from the same flaws as the directive.

His counsel said the garda decision to arrest Dwyer in October 2013 was based to a significant extent on the data disclosed by mobile phone providers.

The State does not accept the arguments and maintains that Dwyer’s application is misconceived.

The State further argues that laws that allow authorities to access communication data are extremely important in the detection of serious crime.

A ruling on Dwyer’s action is expected soon.

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