Graham Dwyer’s prospects of freedom boosted by EU court ruling

Europe’s top court rules that retention of Graham Dwyer's phone data was a breach of EU law
Graham Dwyer’s prospects of freedom boosted by EU court ruling

Graham Dwyer, 41, from Foxrock in Dublin

A ruling by Europe’s top court has firmly boosted Graham Dwyer’s prospects of freedom.

But there are still two legal stages to go before this will be known.

On Tuesday, the European Court of Justice (ECJ) ruled, as expected, that Ireland’s system of general and indiscriminate retention of data for the investigation of serious crime breaches EU laws.

Mobile phone traffic data — in particular, call logs and phone locations — played a central role in the successful prosecution of Dwyer in 2015 for the murder of Elaine O’Hara in August 2012.

In a landmark judgment in December 2018, following a case taken by Dwyer, the High Court ruled that general and indiscriminate retention of data was contrary to EU privacy rights.

The State appealed the case to the Supreme Court, which, in turn, referred the legality issue to the ECJ for a ruling.

Last November, the ECJ’s legal adviser firmly stated Irish general retention for the investigation of serious crime contravened EU laws and that this was already known from previous court rulings.

As predicted by legal experts, the ECJ Grand Chamber endorsed this view today and declared: “EU law precludes national legislative measures which provide, as a preventative measure, for the general and indiscriminate retention of traffic and location data relating to electronic communications, for the purposes of combating serious crime.” 

 It furthermore ruled: "The national court may not impose a temporal limitation on the effects of a declaration of invalidity of a national law that provides for such retention.” 

This means the Supreme Court cannot apply this ruling for future cases only and that it applies retrospectively, benefiting cases like Dwyer’s.

The ECJ said general and indiscriminate retention of data is only lawful in cases of national security.

The Irish legislation that granted these powers are contained in the Communication (Retention of Data) Act 2011.

In Tuesday's Irish Examiner we report of an 80% drop in Garda use of the powers since the High Court ruling, seriously impacting its investigation of serious crime.

The ECJ judgment now goes back to the Supreme Court, which is obliged to integrate it in its own ruling.

This potentially has implications not just for Dwyer’s case, but other cases and any prosecutions underway that might have used the powers in this act as evidence.

But legal experts have said that Dwyer’s freedom is still not assured as the Court of Appeal may still admit the evidence if the prosecution can show that it was obtained by an inadvertent breach of the accused’s constitutional rights.

If Dwyer’s counsel can show that the evidence does represent a “deliberate and conscious” breach of his rights, then it will be difficult for the court to allow it, experts believe.

The court could also conclude that there is other evidence that is sufficient to secure his conviction.

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