Dwyer challenge on mobile phone records could be heard by three judge divisional court

Graham Dwyer

By Ann O’Loughlin

A High Court action brought by convicted murderer Graham Dwyer against the Garda Commissioner and State over the use of mobile phone records could be heard by a three judge divisional court.

Graham Dwyer was charged in October 2013 with the murder of Elaine O’Hara and was convicted by a jury following a lengthy trial at the Central Criminal Court in March 2015.

In his High Court proceedings commenced in 2015, Dwyer claims certain provisions of the Communications (Retention of Data) Act 2011 breach his rights to privacy under the Constitution, the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union.

The Directive underlying the 2011 Act was struck down by the European Court of Justice in 2015.

The matter, which is due to commence on February 20th, was briefly mentioned before Ms Justice Caroline Costello at the High Court today.

Sean Guerin SC for the State defendants, said the case raised a number of important legal issues, and the High Court may want to consider if the case should be heard by a divisional or three judge court.

Ms Justice Costello agreed to adjourn the matter to early January when pretrial issues between the parties can be addressed.

The hearing of Dwyer’s case is expected to last for several weeks.

In his action, which is opposed by the State, Dwyer claims the European Court of Justice ruling means Irish legislation implementing the directive was illegal and that data collected on his phone was also therefore invalid.

Many requests for disclosure of mobile phone records were made under the relevant provisions of the 2011 Act by gardai investigating Ms O’Hara’s murder and were granted by the relevant service providers. Phone data was also admitted into evidence during the trial.

During Dwyer’s criminal trial, his lawyers argued the mobile phone data was inadmissible as evidence but those arguments were rejected by the trial judge.

The High Court proceedings are against the Garda Commissioner, Director of Public prosecutions, Ministers for Justice and Communications, Ireland and the Attorney General.

In his action, Cork born Dwyer with an address in Foxrock in South Co Dublin seeks, if appropriate, damages and, if necessary, a reference of issues to the European Court of Justice.

Following his conviction Dwyer for the murder of Ms O’Hara in August 2012 the married architect was jailed for life and his appeal against conviction has yet to be heard.

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