Graham Dwyer's conviction 'certainly looking more dubious'
Graham Dwyer was convicted of murdering Elaine O’Hara — but the use by gardaí of mobile phone data to build their case against him may prove crucial in his bid to overturn that conviction. Picture: Niall Carson/PA
Legal advice that Ireland’s mobile phone data retention system breaches European law “definitely favours” Graham Dwyer in his efforts to overturn his conviction for the murder of Elaine O’Hara, experts say.
However, they say the “key question” is whether or not the Court of Appeal will determine if the mobile phone data — used prominently by the prosecution to prove Dwyer’s guilt — has to be excluded, or can still be accepted.
In 2015, Dwyer was convicted and sentenced to life in prison for the murder of the childcare worker in 2012.
His trial exposed details of one of the most shocking crimes ever committed in Ireland, with evidence of sadistic practices in which he fantasised about stabbing flesh while sexually aroused. Recovered text messages revealed a ‘master’ and ‘slave’ relationship between Dwyer and Ms O’Hara before her murder.
The case was referred to the Court of Justice of the European Union by the Supreme Court, following a successful challenge by Dwyer to the retention and accessing of his mobile phone data by gardaí.
The adviser to the CJEU has found general and indiscriminate retention of mobile phone traffic data is only permitted in cases of serious threats to national security.
Advocate general at the court, Manuel Campos Sánchez-Bordona, said such retention of data, even for cases involving serious crime, breached EU privacy rights and the EU Charter of Fundamental Rights. He said Ireland does not appear to have a prior independent mechanism to authorise access to retained data which, he said, was needed under CJEU case law.
He further said national courts “cannot limit in time” the effects of a declaration that domestic laws are incompatible with EU laws, meaning it can be retrospective in application, benefiting cases such as Dwyer's.
Legal experts expect the CJEU will agree with the opinion, given that he was essentially reiterating previous rulings of the court. The opinion deals a major blow to the Irish State, which is appealing a High Court declaration in favour of Dwyer that Irish laws governing mobile phone retention breached EU privacy rights.
Dwyer is appealing his criminal conviction, and will use the Supreme Court ruling in his bid for freedom.
University of Limerick professor of law Shane Kilcommins, said the opinion “definitely favours” Dwyer. “The Supreme Court is bound by the CJEU. It cannot deviate from it," Prof Kilcommins said.
He said the Supreme Court had asked if any declaration of incompatibility with EU laws could only be future-focused, but the advocate general believed it had to be retrospective.
Prof Kilcommins said Dwyer could argue that the conviction should be overturned on the basis that the mobile data evidence represents a “deliberate and conscious” breach of his rights, that there was no independent prior review, and that the EU court’s finding has to be applied retrospectively.
He said the “key question” then for the Court of Appeal is to decide whether or not the mobile data should have been admissible in the trial or excluded because of breaches of Dwyer’s rights.
However, he said it was not easy to be definitive on this question given the Court of Appeal will also take into account the “exclusionary rule” after the 2015 Supreme Court ruling in the JC case.
Under this, courts have an element of discretion in admitting evidence that was unconstitutionally obtained if gardaí or the prosecution can demonstrate that it was obtained by an inadvertent breach of an accused’s constitutional rights.
Mr Kilcommins said all of those issues will “have to be played out” in the Court of Appeal, but that if the court rules the evidence has to be excluded then the conviction would have to be quashed.
Aarhus University Denmark associate professor of law and EU legal expert, Graham Butler, said: “There is no way out for the State’s prosecution here, or the Irish courts.
“If the CJEU’s eventual judgement followed the opinion of the advocate general, the Supreme Court will have no choice but to find the Irish legislation incompatible, throwing the Dwyer conviction into disarray,” Mr Butler said.
The opinion also reinforces the existing impact on current investigations, with an oversight judge in Ireland noting in September 2020 that the Garda’s reluctance to use the powers was “to the detriment of criminal investigations”.
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