Graham Dwyer has legal battle ahead to win freedom, say experts

Phone traffic evidence was central to the successful conviction of Graham Dwyer in March 2015 for the 2012 murder of Elaine O’Hara. Picture: Collins Courts.

A landmark European court ruling in the Graham Dwyer case “significantly tilts the balance” in favour of criminals, former garda bosses have said.

Families of homicide victims said some murders could go unsolved as a result and said it was “common sense” that the protection of life take precedence over rights to privacy.

The warnings follow the decision of the European Court of Justice (ECJ) on Tuesday, concluding that the blanket retention and accessing of telephone traffic data in the investigation of serious crime breaches EU fundamental rights to privacy.

It said the general retention of data was only permitted in serious cases of national security.

Phone traffic evidence was central to the prosecution and successful conviction of Dwyer in March 2015 for the 2012 murder of Elaine O’Hara, following a trial that detailed shocking text messages of Dwyer’s sexual practices.

While the ruling is a major boost to Dwyer’s bid to have his conviction quashed, legal experts say he has a legal battle ahead and that the evidence, although illegal obtained, can still be accepted by the Court of Appeal.

The ECJ endorsed the ruling of the High Court in December 2018, which found that the “general and indiscriminate” data retention system in Ireland breached EU laws, particularly the right to privacy.

Bid for freedom

Dwyer had taken the case to the High Court as part of his bid for freedom with a separate case before the Court of Appeal to overturn his murder conviction.

The State took the High Court decision to the Supreme Court, which referred the legal issue to the ECJ for a ruling.

That decision now goes back to the Supreme Court.

“The Supreme Court will now have to comply with the decision, upholding the 2018 High Court decision,” Shane Kilcommins, Professor of Law at the University of Limerick, said.

Graham Butler, Associate Professor of Law at Aarhus University, Denmark, said the judgement confirmed what was already known: “There has been a string of cases for the last number of years confirming that states like Ireland cannot retain ‘general and indiscriminate’ traffic data.” 

 Former garda chiefs said the ruling will have a serious impact in the investigation of serious crimes.

“The ruling with have a significant impact on the capacity of police to conduct serious crime investigations,” former assistant commissioner for Dublin Pat Leahy said.

He said “almost every one” of the murder investigations he supervised involved the use of mobile phones by criminals.

“This ruling significantly tilts the balance in favour of the criminal.” He added: “We must find a balance between the right to privacy and the right to personal safety and security.” 

 Former assistant commissioner Michael O’Sullivan agreed, saying access traffic data was “a vital part” of investigations, without which many serious criminals would not be in prison.

“The ECJ decision will be welcomed by criminals because they know that it places law enforcement at a distinct disadvantage and it is not good for safeguarding society because criminals will benefit.”

The Irish Examiner reported on Monday that Garda use of data retention powers has plummeted by 80% between 2018 and 2021 after the High Court ruling.

Joan Deane of AdVIC, representing families of homicide victims said: “The ruling is very concerning as it undermines the Gardaí’s ability to investigate serious crime and it could result in some murders becoming unsolvable.”

She said: “There has to be some common sense as a person’s right to life has to be held in greater importance than an individual’s privacy rights.” 

Ms Deane added: “It is also very important that no one forgets Elaine O’Hara in all of this and that not only has her family been forced to suffer the terrible burden of losing her, but that they are being also forced to endure this ongoing legal process.” 

 Legal experts say the outcome for Dwyer, particularly before the Court of Appeal, is not yet clear.

Professor Kilcommins said the State will cite a Supreme Court judgement in the ‘JC’ case in 2015 and argue that the breach was “inadvertent” and that the evidence should still be admitted.

“The prosecution will argue that the gardaí did not know at the time they were gathering this impugned evidence that they were breaching Dwyer’s rights since, at the relevant time, the provisions authorising the gathering of evidence remained good law.” He said this argument will require an analysis by the Court of Appeal of the “state of mind” of gardaí and, indeed, prosecutors, at the time. The onus, he said, will rest with the prosecution.

Associate Professor of Law at Trinity College Dublin, David Kenny, said it was “not a foregone conclusion” that Dwyer would win.

He thought the ‘JC’ case will be relevant in Dwyer’s case as it will centre on the “state of knowledge” of the gardaí who gathered the evidence.

“It really depends on what was known at the time the data was accessed. My understanding of Irish law and admissibility is what matters is the state of mind of gardaí at the time of the gathering of evidence.” 

He added: “The State has a really good case to say ‘we really didn’t know until today’, until the ECJ’s ruling. They could say it wasn’t clear enough and that the Supreme Court itself referred the issue.” 

Prof Kilcommins said Dwyer’s defence will argue differently: “Dwyer will argue that it is not appropriate to rely on this inadvertence argument since the entire legal basis on which access to the relevant data was granted was invalid under European Union law and in breach of his right to privacy. To permit evidence to be adduced in these circumstances would be to fail to vindicate his rights.”

Justice Minister Helen McEntee said she expected the Supreme Court will “bring clarity” to the law and that this will inform legislation the department is drafting on the area.

She said this will support to the greatest degree possible the work of an Garda Siochana “to tackle crime and carry out effective investigations”.

Mr Butler pointed out that 12 member states supported Ireland’s arguments on the need for these powers for investigating serious crime.

He said this could represent a “groundswell of political support” to amend EU laws for the investigation of serious crime.

He said such member states could press the European Commission, which in turn could amend EU law – but cautioned it would have to adhere with EU primary laws.