Dwyer, from Bandon, Co Cork, was charged in October 2013 with the murder of Elaine O’Hara and was convicted by a jury at the Central Criminal Court in March 2015. He was jailed for life. His appeal against conviction has yet to be heard.
The matter was in the court’s chancery list yesterday for a motion seeking the court to make a recommendation that Dwyer gets legal aid for the proceedings. On consent of the sides it was adjourned to May 30.
Mobile phone data played a central part in Dwyer’s trial and conviction. The issue of the legislation under which the data was obtained was raised during the murder trial and is likely to form one of the grounds of his appeal. The application has been brought because the High Court proceedings are not covered by either civil or criminal legal aid.
Many requests for disclosure of mobile phone records were made under the relevant provisions of the 2011 act by gardaí investigating Ms O’Hara’s murder and were granted by the relevant service providers. Phone data was also admitted into evidence during the trial.
In his High Court proceedings, 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.
During Dwyer’s trial, his lawyers argued the mobile phone data was inadmissible as evidence but those arguments were rejected by the trial judge. In his High Court action, Dwyer is also seeking, if appropriate, damages and, if necessary, a reference of issues to the European Court of Justice.
The proceedings are against the Garda commissioner, director of public prosecutions, ministers for justice and communications, Ireland and the attorney general.
Dwyer, a father of three, was convicted in 2015 of the murder of childcare worker Elaine O’Hara, 33, who disappeared in August 2012. He got a mandatory life sentence. Ms O’Hara had suffered from mental health issues and had just been released from hospital when she disappeared, leading to the belief her death was a suicide.
However, her body was found in woodland in the Dublin Mountains in September 2013. While it was too decomposed to determine a cause of death, the discovery of her personal belongings discarded in a reservoir a short time later instantly pointed to foul play.
Dwyer, married and living in Foxrock, Dublin, up to his arrest in October 2013, was linked to Ms O’Hara through mobile phone messages and emails after they made contact through an adult website. He admitted to having violent sex fantasies and to acting them out on Ms O’Hara but always denied murdering her.