Graham Dwyer phone data appeal ruling due next week

A seven judge Supreme Court will give judgment on Monday on the State's appeal over a key phone data ruling which could assist Graham Dwyer in seeking to overturn his conviction for the murder of childcare worker Elaine O'Hara.

The State says the High Court ruling has implications extending well beyond Dwyer's case and means enormous adverse consequences for investigation and prosecution of serious crime. The appeal was heard last December over two and a half days and judgment was reserved. Judgment will now be given on Monday during the Supreme Court's first ever sitting in Waterford.

The appeal concerns a December 2018 High Court decision in favour of Dwyer’s challenge to the validity of provisions of a data law under which certain mobile phone call data records were put into evidence at his criminal trial.

The prosecution attributed two mobile phones to Dwyer following a detailed analysis of call records in order to build up a clear picture of his movements between October 2011 and August 2012.

Ms O’Hara was last seen alive in a public park in Shanganagh, Dublin on August 22nd, 2012. Her remains were found in Killakee mountain, south of Dublin, in September 2013. In his High Court judgment, Mr Justice Tony O’Connor held that aspects of the Communications (Retention of Data) Act 2011 governing retention and disclosure of mobile phone data contravene EU law as they permitted indiscriminate retention of data and a data access regime without prior review by a court or other independent body.

Not unlawful

Access to retained data must be requested by a Garda Chief Supt and the Garda Commissioner must report annually to the Minister for Justice on all disclosure requests.

The 2011 Act was introduced to have Irish law conform with an EU Directive which was later struck down by the Court of Justice of the EU (CJEU). The interpretation of various CJEU decisions concerning retention of, and access to, data is in dispute between the sides in the State’s appeal.

Both sides have agreed, if the Supreme Court considers a lack of clarity arises from the CJEU decisions, it should refer issues to the CJEU.

The State maintains the CJEU decisions do not render general data retention unlawful once that is justified by a proportionality assessment involving balancing data privacy/protection rights on the one hand and, on the other, the rights to life and personal protection, and the State’s interest in investigating and prosecuting serious crime Having carried out such an exercise, it says the Supreme Court should conclude the 2011 provisions are not disproportionate.

Dwyer accepts the High Court decision has profound consequences beyond his case but says his concern is limited to asserting that data from one phone was inadmissible at his trial.

The Supreme Court was told, if Dwyer’s trial was to be heard now,the High Court decision would mean none of the call data from five phones accessed by gardaí would be admissible as evidence.