Supreme Court decision on Graham Dwyer conviction appeal to be given on Wednesday

Graham Dwyer claims there was a breach of his rights under the EU Charter of Fundamental Rights in the gathering of mobile phone data which was later used at his trial for the murder of Elaine O’Hara

Graham Dwyer is serving a life sentence after he was convicted at the Central Criminal Court in 2015 of the murder of Elaine O’Hara. File picture

A seven judge Supreme Court will rule on Wednesday on Graham Dwyer’s last ditch appeal of his conviction for the murder of childcare worker Elaine O’Hara.

The former architect has been serving a life sentence after being convicted at the Central Criminal Court in 2015. He has always denied the murder.

Ms O’Hara, a 36-year-old childcare worker, was last seen in August 2012 in a park in Shanganagh, south Dublin. Some of her remains were found on Killakee mountain just over a year later and she was identified from dental records.

Dwyer’s trial was told a Nokia phone found in Vartry Reservoir, Co Wicklow, in 2013 was used to send Ms O’Hara messages, including one about stabbing, culminating in a text dated August 22, 2012 — the last day she was seen — to “go down to the shore and wait”.

Elaine O'Hara's remains were found on Killakee mountain and she was identified from dental records. File picture: Garda/PA Wire 

Last year the Court of Appeal rejected all grounds of Dwyer’s conviction appeal.

The Supreme Court decided a further appeal was warranted as Dwyer raised important points about the admissibility of mobile phone data evidence that was gathered and retained under 2011 legislation that was later found to breach EU law.

The legislation’s infirmity was raised in an earlier leg of Dwyer’s bid to overturn his conviction.

Conviction appeal

A seven-judge Supreme Court heard Dwyer’s conviction appeal last January. In the meantime, the court dismissed a case raising similar objections to the admissibility of phone data evidence at a criminal trial.

Lawyers for Dwyer argued before the court the gathering of phone metadata, under the now-defunct 2011 law, was a breach of his rights under the EU Charter of Fundamental Rights.

“The prosecution cannot be permitted to deploy in evidence material that should never have been admitted in the first place,” he said.

The Director of Public Prosecutions (DPP) contested his appeal, arguing a beach of charter rights could not be relied on by Dwyer as the charter does not have direct effect.

Seán Guerin SC, for the DPP, said the court must strike a balance between the competing interests of protecting the constitutional rights of citizens and ensuring the administration of justice is not brought into disrepute by refusing to admit “highly probative” evidence.

Members of Ms O’Hara’s family, including her father Frank, brother John and sister Anne Charles, were in court for the hearing.