Graham Dwyer given boost by European court in challenge to murder conviction

This morning the European Court of Justice stated that the general access of traffic data was only permitted in serious cases of national security – and not serious crime.

It comes after Graham Dwyer challenged the legality of the use of mobile phone traffic data to secure his conviction in 2015 for the murder of Elaine O'Hara in August 2012. File photo: Collins Courts

A legal opinion just issued by the advisor to the European Court of Justice favours a case being taken by Graham Dwyer to overturn his conviction for murder.

His case is based on the legality of the use of mobile phone traffic data to secure his conviction in 2015 for the murder of Elaine O'Hara in August 2012.

The Supreme Court referred the issue to the European Court of Justice as a result of an appeal taken by the State against a High Court decision that the legislation used to retain and access mobile phone data in Dwyer’s prosecution breached EU law.

This morning the Advocate General of the Court, whose legal opinion is generally followed by the judges, stated that the general access of traffic data was only permitted in serious cases of national security – and not serious crime.

“Advocate General Campos Sánchez-Bordona reiterates that the general and indiscriminate retention of traffic and location data relating to electronic communications is permitted only in the event of a serious threat to national security,” the opinion states.

“By permitting, for reasons going beyond those inherent in the protection of national security, the preventive, general and indiscriminate retention of traffic and location data of all subscribers for a period of two years, Irish legislation does not therefore comply with the Directive on privacy and electronic communications.” 

The legal advisor said that, in addition, access by the competent national authorities to retained data “does not appear to be subject to prior review by a court or an independent authority”, as required by the case-law of the Court, but to the discretion of a police officer of a certain rank.

“The Supreme Court will have to ascertain whether that official satisfies the conditions laid down in the case-law relating to the status of ‘independent authority’ and whether it is a ‘third party’ in relation to the authority requesting access,” it says.

The Advocate General also points out that that review must take place before, not after, access to the data. The opinion is not binding on the court, which is due to issue its judgement some time next year.

Its findings will then be taken into account by the Supreme Court.