EU ruling on Graham Dwyer case could affect thousands of Irish convictions

Thousands of Irish criminal convictions may be in jeopardy if court rules in favour of appeal  

Graham Dwyer was sentenced to life in prison in 2015 for the murder of Elaine O’Hara in the Dublin mountains.

The indication by the Court of Justice of the European Union that it will rule in favour of an appeal placed by convicted murderer Graham Dwyer could put thousands of Irish criminal convictions in jeopardy.

The court has indicated to the Irish Supreme Court that it will find in favour of Dwyer with regard to the alleged invalid nature of how key mobile phone evidence was used against him in his 2015 trial.

Ireland’s Supreme Court has, in turn, asked that the EU court continue with its ruling regarding the case. 

A formal judgement is expected by March of next year. Multiple legal sources are of the opinion that the EU court's ruling is unlikely to affect the Dwyer conviction itself, with their belief being that enough alternate evidence exists for that decision to survive.

However, sources said that may not be the case for many thousands of convictions which may have been arrived at on the back of gardaí accessing people’s private communications' histories, from mobile phone records to social media logins.

The precedent for the EU court’s forthcoming decision with regard to the Dwyer case had been set by a series of landmark judgements regarding data retention by member states over the past six years.

One of those is a case taken by Irish privacy advocacy group Digital Rights Ireland which was decided upon in its favour in 2014.

That decision rendered Ireland’s Communications (Data Retention) Act 2011, the legislation by which gardaí accessed the mobile location data used in Dwyer’s conviction, as being out of step with European law. 

Under that law, the gardaí, Defence Forces, and Revenue Commissioners can access people’s digital data on request, with providers expected to maintain such records for a period of two years.

Rather than such requests reducing in the wake of the Digital Rights Ireland judgement, they have in fact increased exponentially to an average of close to 18,500 per year by 2018.

Dwyer was convicted of the murder of Elaine O’Hara in March 2015.

He subsequently appealed the conviction arguing that the State’s use of his own mobile phone data against him had been incompatible with EU law.

That appeal had reached the Supreme Court, which had referred it to the EU court for direction.

“The Dwyer case is a dreadfully sad one, but it has to be acknowledged that the challenge he took has its roots within Digital Rights Ireland writing to the Government about this problem in 2006,” said the Irish Council for Civil Liberties policy officer Olga Cronin.

“The Government didn’t heed the concerns, it went to court, and Digital Rights Ireland won.

"What is happening now is really not a surprise, it’s in line with everything that’s happened with the Court of Justice of the European Union in recent years,” she said.

“We’ve been told again and again that we’re not in compliance. What is happening now is a consequence of operating outside the law,” said Ms Cronin.