State set to lose European court case over Graham Dwyer’s mobile phone records

The European Court of Justice is expected to rule against the Irish State in a case referred to it after mobile phone records were used to convict murderer Graham Dwyer.

Mobile phone data was crucial to showing how Dwyer planned and attempted to cover up the murder of 36-year-old childcare worker Elaine O’Hara in August 2012.

The ECJ has ruled in two recent similar cases that member states and service providers do not have broad rights to retain data on citizens.

Irish officials now believe the ECJ is likely to rule against a general data retention scheme as in the Dwyer case. There is considerable concern among prosecutors and police across the EU of the implications of such a ruling for investigating serious crimes and combating national security threats.

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In light of its recent rulings, the ECJ has asked the Irish Supreme Court if it wishes to proceed with its referral of the Dwyer case. The Supreme Court has responded that it wishes the case to proceed and hearings are expected to begin in mid-January.

Appeal

Dwyer was convicted and sentenced to life in prison in 2015. He launched an appeal process shortly afterwards based on the argument that the retention and accessing of his mobile phone data was incompatible with EU law.

The case reached the Supreme Court which referred it to the ECJ last February under the “preliminary reference procedure” as it concerned a matter of EU law.

Last month, the ECJ ruled in two similar cases involving the retention of data by UK, French and Belgian authorities. It stated that legislation requiring the general and indiscriminate retention of data is not compatible with EU law except in very specific circumstances. In such cases, safeguarding legislation must be in place setting out review procedures and time limits for data retention.

The rulings have led to concern among Irish prosecutors. “It seems the European Court of Justice has decided that retention of data must only take place in very considered circumstances and only where there is a level of proof already,” one senior Irish official told an online conference last week.

‘Clairvoyance’

“To put it in crude terms, it reminds me of the movie Minority Report where you need an element of clairvoyance in advance to know that a crime will be committed in the future to apply for retention of the data on today’s date,” they said.

“It is very difficult for the Garda or the police service in each individual member state to access information if the information is never being retained to begin with. It’s a conundrum.”

They added a decision against the Irish State in the matter could have implications for the integration of the European Justice system on a par with Brexit and may cause some member states to question the competency of the ECJ to rule on such matters.

While a ruling against a general data retention scheme would be a boost to Dwyer’s chances of appeal, he still faces multiple legal hurdles.

Any ECJ judgment would be referred back to the Supreme Court for implementation and would factor into Dwyer’s main appeal before the Court of Appeal.

The Court of Appeal may decide there was enough additional evidence aside from the mobile phone data to support Dwyer’s conviction. Or it may decide gardaí and prosecutors acted in good faith when utilising the mobile phone evidence, meaning the evidence could still stand.