Killer Dwyer’s bid for freedom delayed as data case referred to EU
KILLER Graham Dwyer’s bid to overturn his murder conviction will be delayed for up to two years after the Supreme Court referred key legal questions on the retention of communications data to a European court.
The referral will also delay the introduction of a new legislative regime for gardaí to access such data.
Hundreds of investigations, including many related to the distribution of child sexual abuse material, have been stifled since Dwyer secured a High Court declaration in 2018 that legislation used by gardaí to access his phone data, the 2011 Communications Act, contravened EU law and the European Convention on Human Rights.
The data was crucial to proving he murdered childcare worker Elaine O’Hara.
Dwyer wants to rely on that ruling in a separate challenge to his conviction, where he intends to argue the data should not have been admitted in evidence at his trial.
In a significant judgment delivered by Chief Justice Frank Clarke yesterday, the Supreme Court upheld the High Court ruling that the manner in which gardaí accessed retained phone data did not meet EU standards due to a lack of independent oversight.
However, Mr Justice Clarke also signalled the Supreme Court’s view that a system of universal but limited retention of data was not, in and of itself, incompatible with EU law.
He also said he believed an Irish court making a finding that an Irish law was inconsistent with EU law had the power to decide any such invalidity was not retrospective.
In other words, such a decision would only apply from the date of the decision, ruling out the prospect of Dwyer being able to rely on it as a ground of appeal.
But the court will not finalise its ruling until three questions have been considered by the Court of Justice of the European Union (CJEU).
The Chief Justice said the court was obliged under EU treaties and case law to make a referral to the CJEU on an issue of EU law unless there was already a “clear” answer to the issue.
While the average waiting time for a referral to be processed is around 15 months, lawyers say it can take anywhere between 12 months and two years, depending on the case.
Dwyer (47) was jailed for life in 2015 for the murder of Ms O’Hara (36), who was last known to be alive on August 22, 2012. Her remains were discovered at Killakee in the Dublin Mountains 13 months after her disappearance.
In a statement, Justice Minister Charlie Flanagan said it was clear the current legal framework needed to be modernised. He said drafting of legislation to replace the 2011 Communications Act was “well advanced”, but now needed to take account of the CJEU referral.
In the absence of new legislation, gardaí have no other means for lawfully accessing communications data.
Mr Flanagan previously announced new legislation was being drafted in December 2018, after Dwyer’s successful High Court challenge.
Asked about the delay in bringing forward a new law, the Department of Justice said in a statement that data issues were presenting challenges for law enforcement agencies across the EU.
“Data retention and access measures reach deep into member states’ criminal justice systems, requiring a high level of legal certainty because of their significant implications for criminal investigations and prosecutions,” it said.
“The CJEU’s consideration of the questions referred will assist in bringing clarity to an evolving area of jurisprudence.”
Yesterday’s decision came after the State appealed the 2018 High Court ruling.
The main issue highlighted by the High Court was a provision which allowed gardaí of chief superintendent rank and above to request user data from providers. Mr Justice Tony O’Connor found the data retention regime was general and indiscriminate, with no prior review by a court or an independent body and no adequate legislative guarantees against abuse of such data.
In its ruling the Supreme Court found there must be independent prior permission given for such access.
“I express the view that the Irish access regime does not meet that standard, not least because of the fact that, albeit access permission is granted by a separate unit within the force, such permission is nonetheless granted from within An Garda Síochána so that there is insufficient independent review in advance of the need for access,” Mr Justice Clarke said.
In addition to the Chief Justice, the seven-judge panel was also made up of Supreme Court judges Donal O’Donnell, William McKechnie, John MacMenamin, Peter Charleton, Iseult O’Malley and Mary Irvine. Mr Justice Charleton was the only judge who felt the court’s findings should not be referred to the CJEU.