Supreme Court refers Graham Dwyer phone data challenge to European Court of Justice

The Supreme Court has referred convicted murderer Graham Dwyer’s challenge to the gardaí’s access to his phone data to the European Court of Justice.

This means a person’s past phone history will still be available for future investigations.

There was a fear that the Supreme Court would uphold convicted murderer Graham Dwyer’s challenge to the gardaí’s access to his phone data.

Had the Supreme Court upheld the 2018 High Court decision, it would have had serious and far-reaching implications for future murder investigations

The decision by the seven Supreme Court judges sitting for the first time in Waterford is also now unlikely to be of as much help in the former architect’s appeal against his 2015 conviction for murdering Elaine O’Hara as his defense team might have wished.

The Supreme Court is delivering its ruling on the State's appeal against convicted murderer Graham Dwyer's successful challenge to the retention and accessing of mobile phone data. | https://t.co/AdIAwyo92L https://t.co/UaPUxky7F9

— RTÉ News (@rtenews) February 24, 2020

In 2018, the High Court upheld Dwyer’s challenge to the use of phone data being used in his trial for the murder of childcare worker Elaine O’Hara.

Because the High Court finding of invalidity was made in 2018, that suggests, if the preliminary view stands, the data relevant to Dwyer would have been legally retained and accessed.

Dwyer challenged the validity of evidence from phones linked to him during the trial but the trial judge rejected his bid to have it declared inadmissible.

The 36-year-old was found on Killakee mountain, Rathfarnham, Dublin, on September 13, 2013.

Phone data played a major part in identifying Dwyer as a suspect for the murder and helped secure his conviction.

The State attributed two mobile phones to Dwyer following a detailed analysis of call records in order to build up a clear picture of his movements between October 2011 and August 2012.

Ms O’Hara was last seen alive in a public park in Shanganagh, Dublin, on August 22, 2012. Her remains were found in Killakee mountain south of Dublin in September 2013.

Mr Justice Tony O’Connor held in 2018 that aspects of the Communications (Retention of Data) Act 2011 governing retention and disclosure of mobile phone data contravene EU law as they permitted indiscriminate retention of data and a data access regime without prior review by a court or other independent body.

Access to retained data must be requested by a Garda Chief Superintendent and the Garda Commissioner must report annually to the Minister for Justice on all disclosure requests.

The 2011 Act was introduced to have Irish law conform with an EU Directive which was later struck down by the Court of Justice of the EU (CJEU).

The interpretation of various CJEU decisions concerning the retention of, and access to, data is in dispute between the sides in the State’s appeal.

Both sides had agreed that, if the Supreme Court considered a lack of clarity arises from the CJEU decisions, it should refer issues to the CJEU.