State fights Dwyer’s bid for freedom
Victory would bolster appeal
DEPRAVED killer Graham Dwyer’s High Court action against the State and Garda Commissioner over the use of mobile phone records in his murder trial may be heard by a threejudge court.
In the High Court yesterday lawyers for the State said that a special divisional court with three judges may be required in February, as his case – concerning how prosecutors obtained his phone records – raises a number of important legal issues.
A divisional court has been used for high-profile cases, including the late right-to-die campaigner and MS sufferer Marie Fleming, and former Rehab CEO Angela Kerins’ action against a Dáil committee.
Dwyer, of Foxrock in south Dublin, was convicted in 2015 of the murder of vulnerable childcare worker Elaine O’Hara in August 2012, in one of the biggest trials ever held in the State.
The decomposed remains of Ms O’Hara, 36, were found on Killakee Mountain, Rathfarnham, Dublin, on September 13, 2013.
Mobile phone records detailing communication between the pair, and placing both at the scene where she met her death, played a vital role in the trial.
He is appealing his conviction on grounds which include the way in which mobile phone records were obtained.
Before that appeal takes place, the High Court will hear the upcoming action concerning the mobile phone records, which is being taken against the Garda Commissioner, Director of Public Prosecutions, Ministers for Justice and Communications and the Attorney General.
In legal argument made in the absence of the jury at his trial, the killer’s lawyers said laws requiring companies to retain data on phone users for two years were introduced following an EU directive in 2005.
The European Court of Justice found in 2014 that this directive breached the EU charter of fundamental rights, and ruled it illegal.
Dwyer’s lawyers claimed this meant the Irish legislation was also illegal, as it allowed the retention and use of data collected on his phone activity.
The prosecution argued that the Act was a continuation of Irish legislation governing data retention. They also argued that the EU charter only applied to EU law and it did not apply in this instance, as the directive no longer existed.
Mr Justice Tony Hunt ruled against Dwyer during the trial, and the phone data was admitted as evidence.
In his High Court action, architect Dwyer claims certain provisions of the Communications (Retention of Data) Act 2011 breach his rights to privacy under the Constitution, the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union. He is seeking damages. A declaration from the High Court that the phone records should not have been used at the trial would also bolster his appeal against his conviction.
The case, which is due to begin on February 20, was briefly mentioned before Ms Justice Caroline Costello at the High Court yesterday.
Seán Guerin SC for the State, said the case raised a number of important legal issues, and that the High Court may want the case to be heard by a divisional or three-judge court.
Ms Justice Costello agreed to adjourn the matter to early January to address this and other pre-trial issues.
The hearing of Dwyer’s case is expected to last for several weeks.
The other grounds of his appeal have yet to be confirmed, but he is said to be convinced he will walk free from court.