Ruling in favour of Graham Dwyer appeal 'would undermine faith in Ireland's justice system'

Graham Dwyer claims his appeal of his conviction, which has succeeded at High Court and Supreme Court levels in Ireland, is based on the argument that the methods used by the gardaí to prosecute the case amounted to a breach of Mr Dwyer’s fundamental rights as defined by the EU charter. Photo: Collins Courts

Ireland has argued before Europe’s highest court that ruling in favour of an appeal brought by convicted murderer Graham Dwyer would undermine faith in the country’s criminal justice system.

At a long-awaited hearing before the Court of Justice of the European Union (CJEU), the State Attorney General Paul Gallagher said that the use of retained mobile phone records had a “critical role” to play in combating serious crime.

He said that restricting the powers of law enforcement to access and use such data in charging serious criminals would lower their ability to prosecute such crimes “to the point of impossibility”.

However, Dwyer’s counsel, Remy Farrell SC, told the court that, in prosecuting his client, the State had used mobile phones in a manner akin to “personal tracking devices”.

Mr Farrell said that Mr Dwyer’s appeal of his conviction, which has succeeded at High Court and Supreme Court levels in Ireland, is based on the argument that the methods used by the gardaí to prosecute the case amounted to a breach of Mr Dwyer’s fundamental rights as defined by the EU charter.

Dwyer was convicted in 2015 of the murder of Elaine O’Hara, a 36-year-old Dublin woman, in August 2012. Her body was not discovered for more than a year.

His appeal against his conviction was aimed primarily at the use of mobile phone data to pinpoint his location on certain dates - given no physical evidence against him existed.

Ireland’s data retention legislation, which dates from 2011 and requires companies to maintain records such as those involving mobile phones for up to two years, has been ruled against by the CJEU as being unlawful on repeat occasions since 2014.

Arguing before the court on Monday, Mr Farrell described Ireland’s data retention law as being “extreme”. He suggested that the analysis of phone metadata - such as location, contact IDs, and times of contact, could be “more invasive of one’s privacy” than simply looking at the content of text messages.

Mr Gallagher said the “breakthrough” made in the case against Dwyer had stemmed from the analysis of traffic and location data pertaining to two mobile phones discovered in a Co. Wicklow reservoir in August 2013.

He said certain types of serious crime could only be “investigated and solved because of the availability of such data”, and argued that ruling in favour of Dwyer “risks undermining the authority and integrity of EU law”. The overriding authority of EU law relies on its “rationality”, he said.

The case was being heard along with two others involving German telecommunications companies as they all relate to similar issues involving data retention and its use by the authorities. Including Ireland, some 14 EU nations had provided submissions regarding the issues at hand.

The case is expected to conclude next week, with a final judgement expected to take several months.