Graham Dwyer’s appeal against his murder conviction was open to hearing earlier this autumn after the Court of Justice of the European Union (ECJ) delivered a landmark ruling in his favour.
The Luxembourg court yesterday confirmed that Ireland’s “universal and indiscriminate” system for storing and accessing mobile phone metadata breaks EU law.
The finding will strengthen Dwyer’s appeal against his 2015 murder conviction of Elaine O’Hara, in which he intends to challenge the admissibility of key cellphone evidence linking him to the childcare worker.
But the impact of the ECJ Grand Chamber ruling will also have far-reaching implications for serious crime investigations across the continent.
The court confirmed that EU law precludes the general and arbitrary storage of traffic and location data related to electronic communications for the purpose of fighting serious crime.
It made the finding in response to questions from the Supreme Court, which is now set to finalize a ruling.
Lawyers are expecting the Supreme Court to reconvene shortly after Easter to deliver its ruling upholding a 2018 High Court decision in favor of Dwyer.
Once that is done, Dwyer can apply to the Circuit Court of Appeals for a hearing date for his appeal of his conviction, and the matter is expected to receive a hearing date in October or November.
The ECJ ruling was significant for Dwyer because it not only upheld the invalidity of Ireland’s data retention laws, but ruled that the Supreme Court could not “limit in time” that finding.
In other words, the Supreme Court cannot prevent the finding from applying retrospectively, which would have cast doubt on Dwyer’s ability to appeal the High Court’s decision.
The ECJ ruling did not completely rule out data retention for the purpose of fighting serious crime, but noted that this was only possible in limited cases.
Cellphone metadata was a key aid to gardaí in connecting Foxrock architect Dwyer to Ms O’Hara’s disappearance in August 2012. Detectives were able to trace the movement of prepaid phones used to contact Ms O’Hara, and found that these mirrored those of Dwyer’s work phone as he traveled around the country.
Synced text messages on Ms O’Hara’s laptop revealed their relationship. The data allowed investigators to piece together her recent trip to the coast in Shanganagh, Co Dublin.
Detectives also discovered that Dwyer’s work phone was pinging from poles in Killakee in the Dublin mountains an hour after one of the prepaid phones texted that he was checking out the location for her “punishment”. Mrs. O’Hara’s remains were found a year later in the Killakee Forest.
Although the ECJ’s decision strengthens Dwyer’s appeal, it does not necessarily mean that his conviction is overturned.
If the appeals court finds that the metadata evidence should have been excluded from its trial, it must consider whether there was enough other evidence to prove the case against Dwyer.
There is also a possibility that the court will determine that the probative value of the evidence outweighs any harm to Dwyer.
Ronan Lupton SC, a lawyer specializing in telecoms law, said: “Despite the judgment of the ECJ, this is not a bull’s eye for Dwyer.”
He pointed to a significant Supreme Court ruling in a case called JC, which held that evidence obtained in violation of a person’s rights could be admissible if the violation was unintentional.
Such an argument could be made since the Gardaí investigation applied the laws in force at the time.
https://www.independent.ie/irish-news/courts/graham-dwyer-set-for-autumn-murder-appeal-hearing-after-european-court-ruling-41525051.html Graham Dwyer has scheduled a murder appeal hearing in the autumn following the European Court’s verdict