Graham Dwyer legal action: Decision is detailed and compelling

When Graham Dwyer was convicted in 2015 of the murder of Elaine O’Hara, it was a culmination of a trial that gripped the country.

Yesterday’s judgment of the High Court in upholding his legal action against the Garda commissioner over data from mobile phones is part of that narrative.

While the decision by Mr Justice Tony O’Connor may prove shocking to some, it should not come as a surprise to the Government, the gardaí, or the State’s lawyers.

Graham Dwyer outside the Four Courts yesterday. Photo: Collins

The European Court of Justice (ECJ) found in 2014 that the EU directive on which the 2011 Communications (Retention of Data) Act is based was invalid.

It was a judgment particularly relevant here as it involved a case taken by Digital Rights Ireland against the Minister for Communications.

Two subsequent rulings by the ECJ, in 2015 and 2016, further strengthened that position by giving more insights in relation to compliance with privacy and data protection rights of national data retention legislation.

Of equal significance is the view taken on data protection by the former Chief Justice, John L Murray.

It is more than 18 months since he recommended a number of important changes to the legislative framework governing data retention because, as he said, the existing laws are “universal and indiscriminate in application and scope”.

He had been asked to review data retention legislation following reports that the Garda watchdog had accessed two journalists’ mobile-phone records during an inquiry into internal media leaks.

In the review, Mr Justice Murray outlined the importance and scope of the issues involved and said the statutory framework “establishes a form of mass surveillance of virtually the entire population of the State, involving the retention and storage of historic data, other than actual content, pertaining to every electronic communication, in any form, made by anyone and everyone at any time”.

That view was bolstered in October by Ms Justice Marie Baker of the Court of Appeal. In a report on the 2011 act and also covering previous legislation dating from 1993, she said data retention laws in Ireland must be revised with “urgency”.

While it is too early to tell how widespread the implications of the judgment will be, it is already clear that it is likely to boost Dwyer’s attempt to have his conviction for murder overturned.

During his trial, there was a challenge to the technical information, but his application to exclude evidence generated by his mobile phone from the jury was rejected by the judge at the Central Criminal Court hearing.

Yesterday’s judgment supports the view advanced by Dwyer’s lawyers that the 2011 act suffers from the same flaws as the ECJ had identified in the directive and breaches his privacy rights under the European Convention on Human Rights and the EU charter.

The decision yesterday could also lead to other appeals where mobile-phone data was used to secure convictions.

While lawyers for the State may feel compelled to appeal the decision reached by Judge O’Connor, they will have their work cut out to argue against such a detailed, comprehensive, and compelling judgment that runs to over 100 pages.


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