Killer Graham Dwyer’s bid for freedom

Legal experts have raised doubts over whether Graham Dwyer will succeed in overturning his murder conviction despite winning a High Court action over the use of mobile phone data as evidence at his trial.

Graham Dwyer

Experts said the implications for other convictions were not clear, but believe it could have ramifications for cases currently before the courts and ongoing investigations.

They believe it will most clearly impact on future Garda investigations of serious criminal offences and that gardaí and agencies will now have to get a court order to access communication data.

An appeal by the State is considered likely.

The High Court yesterday ruled that Ireland’s legislation allowing the retention and accessing of mobile phone data, as in Dwyer’s case, breached EU law on individual rights.

Mr Justice Tony O’Connor found that the Communication (Retention of Data) Act 2011 was “general and indiscriminate” and breached the “fundamental right to privacy” under EU law and the European Convention on Human Rights.

The judge declared the act contravened EU law by not requiring judicial approval for accessing communication data (with the legislation only needing internal approval) and that there was “no legislative guarantees against abuse”.

Dwyer will now use the declaration in his bid to overturn his 2015 conviction for the murder of Elaine O’Hara in 2013, which is currently pending before the Court of Appeal.

Elaine O’Hara: Murdered by Graham Dwyer in 2013.

Commenting on the implications of the ruling, legal experts said:

  • The declaration does not automatically mean Dwyer will be successful in his appeal as the court will be informed by a Supreme Court ruling that evidence which was gathered lawfully at the time, but subsequently found to be unlawful, can still be accepted as evidence;
  • The evidence from the phone data could be included based on the argument that it was gathered before the April 2014 ruling of the European Court of Justice (which declared EU data retention laws were invalid) and used as evidence in court before the December 2016 ECJ ruling (which said the 2014 ruling applied to domestic laws);
  • Other convictions, particularly ones after December 2016, could be challenged, but would be considered on a case-by-case basis;
  • Cases that have been finalised and where no appeal is ongoing, and where no objection was made regarding the legality of the power in the trial, may not be able to use the ruling to overturn their cases;
  • Current garda investigations which have gathered this evidence may be challenged in court, if the DPP decides to bring a prosecution;
  • Gardaí will not now be able to gather and use evidence under the provisions of the 2011 act, knowing that the legislation is incompatible with EU law, and will now have to get a court warrant.

Mr Justice O’Connor said his ruling only applied to accessing data for the investigation of serious crime, and not the two other grounds —the security of the State and the saving of human life.

TJ McIntyre, law lecturer at UCD and chairman of Digital Rights Ireland, said he believed Dwyer would “probably not” be successful in his conviction appeal.

He said there were exceptions for evidence which was gathered lawfully at the time, but subsequently found to be unlawful, and cited the Supreme Court ruling in the JC case.

He said more recent convictions could be challenged but said the timing of the case would be critical, particularly if the evidence was gathered and used as evidence after the December 2016 ECJ ruling.

Mr McIntyre said gardaí would not be able to use the 2011 act to access communication data anymore, and would now need a court warrant.

Shane Kilcommins, head of the School of Law at the University of Limerick, said that when the Dwyer murder trial ruled that the mobile phone data was admissible, the 2011 act “was good law”.

He said yesterday’s ruling will allow Dwyer to argue that the mobile phone data should be excluded.

However, he said: “It does not automatically follow that this data which was accessed contrary to EU law and which was used by the prosecution will lead to the quashing of his conviction for murder.”

Mr Kilcommins said his appeal would be interpreted in light of the Supreme Court JC ruling relating to evidence gathered in breach of individual rights.

He said the assessment of whether evidence was taken in “deliberate and conscious violation of rights” required an analysis of the conduct and state of mind of investigators. He said the ruling could affect other cases where the data was used as evidence, but said this retrospection was “generally limited to those cases that had not reached finality”.

Mr Kilcommins said that where a case had finished and there is no ongoing appeal, and where no challenge was made during the trial on the legality of the evidence, then “the final decision in the case must be deemed to be and to remain lawful notwithstanding any subsequent changes in law”.

He said current investigations which have not yet reached trial were subject to yesterday’s ruling. He said the prosecution could argue the data was obtained prior to the ruling and should be admissible as it did not constitute a “deliberate and conscious breach of rights”.

Mr Kilcommins added: “It will not be possible to make such an argument for any future evidence gathered under the 2011 act — that will now be accessed knowing that the legislation is incompatible with the rights of the individual.”

He said this would continue until the Government introduced and enacted its long-awaited Communications (Retention of Data) Bill 2017.

Justice Minister Charlie Flanagan said the judgment would be considered.


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