Murderer Graham Dwyer’s quest for freedom is to be strengthened by an EU court ruling

Graham Dwyer is awaiting a verdict that could have a significant impact on his attempt to have his conviction overturned in the murder of Elaine O’Hara.

The judgment will be announced tomorrow by the Court of Justice for the European Union (CJEU). EU) — and it’s widely expected to boost Dwyer’s appeal. It could have far-reaching ramifications for serious crime investigations across the continent.

separately the Irish Independent has learned that Google has removed dozens of online newspaper articles identifying people involved in the Dwyer case.

This followed requests to the internet search engine for an EU privacy law best known as the ‘right to be forgotten’.

The identity of the applicants was not disclosed.

More than 90 articles are affected and will no longer appear in searches using certain undisclosed search terms. The articles still exist online – but will be harder to find via Google.

Foxrock architect Dwyer is serving a life sentence for the 2012 murder of childcare worker Ms O’Hara. Evidence of cellphone data location was key to identifying him as a suspect.

Senior legal experts have warned that many criminal investigations will not be resolved in the future due to the ECJ’s expected stance.

The killer successfully challenged the Communications (Retention of Data) Act 2011, the law under which his data was stored and confiscated, in the High Court in 2018.

He intends to use this ruling to support a separate appeal of his conviction in the Court of Appeals.

The law, passed by the Supreme Court, required cellphone operators to retain data for two years and allowed Gardaí to access it at the request of a Chief Superintendent.

However, Mr Judge Tony O’Connor found Ireland’s data retention regime to be in breach of EU law because it was general, arbitrary and lacked independent oversight by a judge. The state appealed its ruling to the Supreme Court, which referred a number of important questions to the ECJ.

An indication of the likely findings of the Luxembourg court came last November when Advocate General Manuel Campos Sánchez-Bordona, a legal adviser to the court, published an opinion.

The opinion confirmed the Court’s jurisprudence that general and indiscriminate retention of electronic communications traffic and location data is only permissible where there is a “serious threat to national security” that can be demonstrated to be real and present or foreseeable.

This seems to preclude its use in murder cases.

If the CJEU agrees with this opinion – and the European Court usually does – it would pave the way for Dwyer’s lawyers to argue before the Court of Appeal that evidence from the retained data should not have been used in evidence.

The matter is already having an impact on investigations.

The 2011 law was introduced as a result of a 2006 EU directive in response to 9/11 and others
terrorist attack.

This directive was later overturned by the ECJ in 2014 after a case led by privacy campaigning group Digital Rights Ireland. But the 2011 law on which it was based continued to be used until Dwyer’s successful challenge in the High Court. Murderer Graham Dwyer’s quest for freedom is to be strengthened by an EU court ruling

Fry Electronics Team

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