Killer Graham Dwyer’s attempt to have his conviction overturned is a step closer as the Supreme Court is soon to uphold the outcome of his successful challenge to Ireland’s data retention laws.
The court heard today that it was unlikely that further arguments would be required in the case.
Sean Guerin SC’s comments for the state come after a ruling by the Court of Justice for the European Union (CJEU) last month found Ireland’s system for storing and accessing mobile phone metadata breaches EU law.
The system was used to obtain phone data that proved crucial in identifying Foxrock architect Dwyer as a suspect in connection with the disappearance and 2012 murder of childcare worker Elaine O’Hara.
Dwyer will use the ECJ’s findings to support a separate appeal against his conviction before the Court of Appeal. He wants to challenge the admissibility of the phone data evidence.
But he is first waiting for the Supreme Court to formally uphold a 2018 High Court ruling repealing the Data Retention Act 2011.
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The Supreme Court has previously indicated it would do so by dismissing an appeal by the state, but wanted the ECJ to clarify certain issues of EU law first.
After the ECJ has done this, the Supreme Court is able to close the matter.
At a case management hearing today, Chief Justice Donal O’Donnell was told the issues were likely “fully discussed” at this point.
Mr Guerin pointed out that oral arguments have already taken place before both the Supreme Court and the ECJ.
The attorney said the parties would now try to agree on the terms of the final orders to be made and requested a two-week break to allow for this.
Mr Justice O’Donnell noted that all orders would have to be decided by the court and adjourned the matter until 26 May.
The completion of the Supreme Court ruling will pave the way for a hearing of Dwyer’s separate verdict, possibly as early as this fall.
The ECJ’s ruling was significant for Dwyer because it not only upheld the invalidity of Ireland’s data retention laws, but also found 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. Detectives were able to trace the movement of prepaid phones used to contact them 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 their most recent trip.
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”. Ms. O’Hara’s remains were found in the local forest a year later.
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 data 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.
Another issue is that the Supreme Court previously ruled in a case called JC that evidence obtained in violation of a person’s rights could be admissible if the violation was unintentional.
Such an argument could be made in the Dwyer case, since Gardaí applied the laws in force at the time.
https://www.independent.ie/irish-news/courts/graham-dwyer-edges-closer-to-murder-appeal-as-supreme-court-victory-set-to-be-confirmed-41639059.html Graham Dwyer moves closer to a murder appeal as Supreme Court victory is set to be upheld