Following an appeal process that began seven years ago, Graham Dwyer, who murdered endangered childcare worker Elaine O’Hara to fulfill his sexual fantasies, set a date in December to appeal his conviction.
Attorneys for Dwyer, 49, today told the three-judge Court of Appeals that they will file their submissions this week as they prepare for a two-day hearing in which they will argue that Dwyer’s conviction follows a recent ruling by the… Court should be set aside Justice of the European Union (ECJ).
Dwyer, 49, received a major boost in April when the ECJ ruled that the indiscriminate retention of mobile phone data for use in criminal investigations was a breach of EU law.
Phone records were an integral part of the evidence against Dwyer, as they were used to trace his movements and contacts with Ms. O’Hara before and after her disappearance in August 2012.
Brian Gageby BL, for Dwyer, told the court they are “almost” completing their filings and expect to file them this week.
The President of the Court of Appeal, Mr Justice George Birmingham, set December 1 as the date for the appeal but said the date could change if Dwyer’s lawyers do not receive their submissions this week. Dwyer was not in court today, but prisoners can remotely follow and hear the proceedings.
Dwyer, a Cork-born architect with an address in Foxrock, Dublin, was convicted by a Central Criminal Court jury in 2015 of the August 22, 2012 murder of Elaine O’Hara.
His victim had been released from a psychiatric hospital hours earlier. Dwyer fantasized about stabbing a woman during sex and used Ms. O’Hara to fulfill his desires.
After murdering her, he dumped some of her belongings in the Vartry reservoir in Wicklow, trying to make it look like she died by suicide. He dumped her body in a forest where she was found in 2013.
Evidence was heard during his trial that he was sexually obsessed with stabbing a woman and that he had been in an abusive relationship with the vulnerable childcare worker.
Much of the evidence focused on text messages between a “slave” phone used by Ms. O’Hara and a “master” phone used by Dwyer, and the movements of those phones.
Dwyer appealed his conviction, arguing that the use of cell phone metadata at his trial violated EU law.
Since the ECJ decision, there has been a judgment in a murder trial related to the use of cell phone evidence.
Mr Judge Tony Hunt found that the EU Court’s decision did not prevent the use of similar mobile phone data in the Glenshane Drive trial of Wayne Cooney, 31, in Tallaght, who was convicted last month of the murder of 22-year-old Jordan Davis in Darndale in May 2019.
Mr Justice Hunt said that EU data protection rights do not trump all other considerations and are not “a clove of garlic guaranteed to ward off all domestic vampires”. He said privacy rights have nothing to do with investigating serious crimes, pointing out that nobody has the right to privacy while committing a crime.
In his lawsuit, Dwyer alleged that data collected from his phone under the Communications (Retention of Data) Act 2011 should not have been used in his trial.
The law allowed gardaí to access cell phone data from service providers who were required to keep all data for two years. The data gardaí was able to access showed incoming and outgoing calls and texts, and also which mast a phone was being pinged from at any given time. The data could therefore be used to show who a mobile phone was in contact with and approximately where the mobile phone was at certain times.
Dwyer’s lawyers argued that the 2011 law was introduced to implement a 2006 EU directive on data retention and use. The European Court of Justice (ECJ) found the directive to be invalid in 2014, and that position was further strengthened in subsequent rulings by that court in 2016.
According to Dwyer, the use of the data is unconstitutional and violates his rights under the EU Charter and the European Convention on Human Rights, including his right to privacy.
The Irish High Court ruled in favor of Dwyer, but the state appealed that decision and the Supreme Court referred the case to the European Court of Justice.
In April this year, the ECJ ruled that Ireland’s system for storing metadata and giving gardaí access to it breached EU law. The decision cleared Dwyer’s appeal of his conviction.
https://www.independent.ie/irish-news/courts/graham-dwyer-appeal-court-date-confirmed-after-seven-year-process-41865114.html Graham Dwyer appeal: Court date confirmed after seven-year trial