Dwyer’s le­gal case to be heard be­fore one judge

Irish Examiner - - News - Ann O’Lough­lin

A three-judge divi­sional court will not be con­vened to hear a High Court ac­tion brought by con­victed mur­derer Gra­ham Dwyer against the Garda Com­mis­sioner and the State over the use of mo­bile phone records.

Dwyer was charged in Oc­to­ber 2013 with the mur­der of Elaine O’Hara and was con­victed by a jury fol­low­ing a lengthy trial at the Cen­tral Crim­i­nal Court in March 2015.

In High Court pro­ceed­ings com­menced in 2015, Dwyer claims that 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 EU. The direc­tive un­der­ly­ing the 2011 act was struck down by the Euro­pean Court of Jus­tice in 2015. The case is un­der­stood to raise is­sues of law.

The prospect of Dwyer’s case be­ing heard by a three­judge divi­sional court was raised when the ac­tion was men­tioned be­fore Ms Jus­tice Costello in De­cem­ber.

When the case re­turned be­fore the High Court on Fri­day morn­ing Ms Jus­tice Caro­line Costello said she had spo­ken to the Pres­i­dent of the High Court, Mr Jus­tice Peter Kelly, about the pos­si­bil­ity. Mr Jus­tice Kelly, she said, did not think it was an ap­pro­pri­ate case to be heard by a divi­sional court. There are also is­sues in re­gards to the avail­abil­ity of judges.

The case will pro­ceed be­fore Mr Jus­tice Tony O’Con­nor on Fe­bru­ary 20. The case was be­fore the court af­ter the State brought a mo­tion aimed at en­sur­ing it runs as ef­fi­ciently as pos­si­ble. The hear­ing of Dwyer’s case is ex­pected to last for six to eight days.

In his ac­tion, which is op­posed by the State, Dwyer claims the ECJ rul­ing means Ir­ish leg­is­la­tion im­ple­ment­ing the direc­tive was il­le­gal and data col­lected on his phone is there­fore in­valid. Many re­quests for dis­clo­sure of mo­bile phone records were made un­der the pro­vi­sions of the 2011 Act by in­ves­ti­gat­ing gar­daí and were granted by the ser­vice providers. Phone data was also ad­mit­ted into ev­i­dence dur­ing the trial.

Dur­ing Dwyer’s crim­i­nal trial, his lawyers ar­gued that the mo­bile phone data was in­ad­mis­si­ble as ev­i­dence but those ar­gu­ments were re­jected by the trial judge.

The High Court pro­ceed­ings are against the Garda Com­mis­sioner; Di­rec­tor of Pub­lic Pros­e­cu­tions; Min­is­ters for Jus­tice and Com­mu­ni­ca­tions; Ire­land; and the At­tor­ney Gen­eral.

In his ac­tion, Cork-born Dwyer, with an ad­dress in Foxrock in south Co Dublin, seeks, if ap­pro­pri­ate, dam­ages and, if nec­es­sary, a ref­er­ence of is­sues to the Euro­pean Court of Jus­tice.

Fol­low­ing his con­vic­tion for the mur­der of Ms O’Hara in Au­gust 2012, the mar­ried ar­chi­tect was jailed for life and his ap­peal against con­vic­tion has yet to be heard.

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