Graham Dwyer sues State and prison service for damages

Convicted murderer Graham Dwyer has brought an action for damages against the Irish Prison Service and the State.

It is understood the case includes claims for damages for alleged negligence, alleged breach of privacy rights and rights under the Data Protection Acts and alleged breach of statutory duty.

The High Court proceedings on behalf of Dwyer, now in the ninth year of a life sentence for the murder of childcare worker Elaine O’Hara, were initiated on Wednesday.

The plenary action, yet to come before the court, is against the Irish Prison Service, the Minister for Justice, Ireland and the Attorney General.

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Dwyer is being represented by the law firm, Harringtons LLP.

The action comes as judgment is awaited from the Supreme Court on Dwyer’s appeal against his 2015 conviction by a unanimous jury verdict at the Central Criminal Court.

A seven-judge Supreme Court heard the appeal over one day last month and will give judgment on a later date, which was not specified.

Dwyer has always denied the murder of Ms O’Hara, who 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.

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

The prosecution argued that phone, and another phone found in the reservoir were secret phones, referred to as ‘Master’ and ‘Slave’ devices that Dwyer and O’Hara used almost exclusively to contact each other. There were more than 1,300 messages between the phones and contact ended on August 22nd 2012, the jury heard.

Last March, in dismissing Dwyer’s earlier appeal against his conviction, the Court of Appeal said phone metadata evidence put before the jury was admissible and rejected Dwyer’s arguments otherwise.

The Court of Appeal said the metadata evidence was “not very significant”. Even if it was excluded, there was enough evidence to link Dwyer to two phones that formed part of the prosecution case, it held.

Several complex legal issues in the Supreme Court appeal arose from the prosecution’s use of the phone metadata evidence.

Dwyer’s lawyers argued this evidence was a crucial part of the prosecution case and it should not have been admitted because the phone data was gathered and retained under a 2011 Act, enacted here to give effect to a 2006 EU directive which the Court of Justice of the EU struck down in 2014 on the basis it breached of EU law concerning privacy and data protection rights.

They relied on several decisions of the Court of Justice of the EU to the effect the general and indiscriminate retention of call metadata is impermissible without appropriate safeguards. Those decisions include one upholding Dwyer’s separate civil challenge to the lawfulness of the data retention regime here.

In opposing the appeal, lawyers for the DPP argued the conviction should be upheld and there was no breach of Dwyer’s rights.

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