State to appeal Graham Dwyer mobile phone data ruling

Graham Dwyer pictured at an earlier court sitting.

The State is to seek a ‘leapfrog appeal’ before the Supreme Court against a key ruling in a case brought by Graham Dwyer.

The State wants the Supreme Court to hear its appeal against a High Court ruling in favour of Graham Dwyer which forms part of his bid to overturn his conviction for the murder of childcare worker Elaine O'Hara.

Brian Murray SC for the State told Mr Justice Tony O'Connor this morning it intends to apply to Supreme Court to hear "a leapfrog appeal" of the finding that the Cork-born architect is entitled to certainly limited declarations concerning provisions of Ireland's data retention laws.

The State's decision to seek an appeal before the Supreme Court means that the appeal of the High Court decision could be heard sometime in the next 12 months.

The State is appealing Mr Justice O'Connor's decision last month that sections of Ireland's retention laws concerning information generated by telephones contravene both EU law and findings of the European Court of Human Rights.

Ireland's data retention laws provide for an indiscriminate retention regime, the Judge said.

As well as being an important ruling in respect to Dwyer's appeal against his conviction the State had argued the action also had major implications in relation to the authorities' ability to retain, access and use information generated by mobile phones in the investigation of serious criminal activities

The case was briefly mentioned before the High Court this morning when the Judge was due to hear submissions on the wording of the declaration in regards to retained telephone data.

Mr Murray SC, appearing with Sean Guerin and David Fennelly Bl for the State said that the sides had agreed most of the wording and that in addition to the appeal the state was seeking a stay on the High Court order.

Remy Farrell SC for Dwyer said his client had come to an agreement with the State over the declaration and would not be objecting to any stay pending the outcome of the appeal.

Mr Justice O'Connor adjourned the case to this afternoon when he will formally rule on the wording of the court's declaration and on the application for a stay.

Dwyer, who denies killing Ms O'Hara, claimed that data gathered from his phone, under the 2011 Communications (Retention of Data) Act, should not have been used at his 2015 trial before the Central Criminal Court.

The data, which was generated by Dwyer's work phone, placed the phone at specific places at particular times and dates.

That data was used to link Dwyer to another mobile phone the prosecution told the jury during his high profile trial that he acquired and used to contact Ms O'Hara, whom he had an affair with.

The use of the data, Dwyer claimed, was unconstitutional and breached his rights under the EU Charter and the European Convention on Human Rights, including his right to privacy.

Dwyer's lawyers argued the Act was introduced to give effect to a 2006 EU directive concerning the retention and use of data.

The European Court of Justice (ECJ) found in 2014 that the directive was invalid and that position was further strengthened in subsequent rulings by that court in 2016.

He claimed the 2011 Act suffered from the same flaws identified by the ECJ.

The state opposed his arguments and said Dwyer's application was misconceived and should be dismissed.

It argued the laws that allow the authorities to access and utilise retained data, are extremely important in the detection, prevention and investigation of serious crime.

in what was a detailed and lengthy judgement Mr Justice O'Connor said he was satisfied that the 2011 Act provides for an indiscriminate retention regime.

The ECJ, the judge said, had found that such regimes are prohibited under Articles 7 and 8 of the European Charter, and the court said it is prepared to make declarations that sections of the 2011 Act are inconsistent with EU law.

He said the ECJ had found that the fighting of serious crimes cannot justify the general and indiscriminate retention regime.

The Judge added that practices of how Garda apply for and obtain mobile phone data were not enough to satisfy the decisions of the European Courts in regards to access.

The sections of the 2011 Act concerning access to retained data contravene EU law and the European Court of Human Rights because there was no prior review by a court of administrative authority for access to telephone data.

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