Dwyer ‘won’t be out any time soon’
Judge rules Garda access to killer’s phone data broke EU law... but experts doubt it will lead to appeal victory
KILLER Graham Dwyer’s appeal is unlikely to be successful, a legal expert has said, despite a High Court ruling that gardaí’s access to his telephone data broke EU Law.
The High Court found that Irish legislation, which enabled gardaí to track his mobile phone contact with his victim, Elaine O’Hara, and to show the location of his phone at key times, contravened EU Law and the European Convention on Human Rights (ECHR).
The judgment is likely to feature in Dwyer’s upcoming appeal against his conviction for the murder of Ms O’Hara in the Dublin mountains in 2012.
Evidence relating to his mobile phone records played a huge role in securing his conviction, after gardaí discovered that he had extensive communications with the childcare worker right up until the time she disappeared.
The mobile phone data also allowed gardaí to show that both Dwyer and Ms O’Hara were in Shankill, Co. Dublin, on the night of her disappearance.
A prison source last night said that Dwyer, who did not attend yesterday’s hearing, reacted with apparent ‘delight and glee’ when he heard the ruling.
Dwyer, who is detained in the Midlands Prison, also boasted to fellow prisoners that he would ‘soon be a free man’, the source added.
Gardaí had obtained Dwyer’s phone information under the Communications (Retention of Data) Act, which put into effect an earlier EU directive. The law obliged service providers to hold on to the data for two years.
However, Judge Tony O’Connor said the Court of Justice of the European Union (CJEU) ruled in 2014 that even the objective of fighting serious crime could not justify the indiscriminate regime of retaining data, which Ireland had adopted in 2011.
He said the Act, still effective in Ireland at the time of Ms O’Hara’s murder investigation in 2013, breached EU law and the ECHR, because it did not require any review by a court or an independent authority before it could be accessed.
‘In addition, there are no adequate legislative guarantees against abuse,’ he said. ‘Too much is left to those who implement and utilise the access provisions.’
Judge O’Connor said there was an ‘unsatisfactory’ system in which a garda who handled applications for phone records often received such an application from a higher ranking officer, who was directing a criminal investigation.
Last night, however, legal experts said yesterday’s ruling does not mean Dwyer will automatically have his murder conviction quashed.
Speaking to the Irish Daily Mail, TJ McIntyre, law lecturer in University College Dublin and chair of privacy campaign group Digital Rights Ireland, said it was ‘unlikely’ Dwyer would be able to use the High Court ruling in his appeal against his conviction.
He pointed to a 2015 Supreme Court ruling, known as ‘JC’, which found that evidence obtained unconstitutionally will be admissible if the prosecution can show the breach was inadvertent.
Mr McIntyre said: ‘The standard in Irish law is that the evidence obtained illegally was set out in the JC case. In the JC case, the Supreme Court was very hostile to the idea that evidence would be inadmissible due to later judgments, even if there are doubts.
‘JC held that when the guards are acting in good faith at the time, then the evidence, and legal basis, should not be struck out.’
This would mean that the telephone data used to build a case against Dwyer, who was charged in 2013, could be relied upon for his conviction.
He added: ‘It would be very unlikely that Graham Dwyer’s case would be overturned. In the JC case, the fact there were doubts about legislation isn’t enough.’
Mr McIntyre said those responsible for Dwyer’s High Court result yesterday are the Department of Justice, which failed to address the CJEU ruling before now.
Barrister, Irene Sands, said the ruling does not necessarily mean Dwyer would walk free.
She said: ‘The knock-on reality of it is, it will certainly give him grounds to argue his appeal, because the phone records and use of his phone data, was a ground of
‘Mobile evidence could be relied on’
argument in his substantive appeal. However, she said Dwyer would bring his appeal on a number of grounds.
‘It does not automatically mean his conviction will be overturned. What it does, it brings Irish law in line with the EU position that we know was there; this day was coming.’
She added; ‘Even if the conviction is overturned, the reality is that he could face a retrial and then there would be an argument of the admissibility of that evidence.’
Ms Sands said some gardaí are worried that more recent cases could be undermined by yesterday’s ruling. ‘Garda colleagues of mine would be concerned that they have a number of cases where they have concerns in relation to their reliance on [mobile phone] metadata.
‘But they have to show they were acting in good faith, but it is something that can be argued and it would be up to the trial judge.’
A spokesman for the Department of Justice yesterday said that an appeal against yesterday’s High Court decision had not been formally ruled out yet.
‘The question of an appeal is a matter that will be considered based on the advice of the Attorney General,’ he said. But the Minister for Justice Charlie Flanagan said that the drafting of a new Data Retention Bill was at an advanced stage and on the Government’s priority legislation list.
And he said that many aspects of the Dwyer judgment from the High Court were already referenced in the draft Bill, and the Attorney General’s advice would be taken regarding further changes.
‘It is clear that the current legal
framework allowing for access to communications metadata to combat criminals and terrorists needs to be modernised in light of evolving jurisprudence,’ he added.
In his ruling yesterday, Judge O’Connor said it did not necessarily mean he would be able to overturn his conviction for murder.
He said that in all cases, the trial judge was best placed to determine whether it was fair and right to adduce specific evidence.
He also referenced the JC Supreme Court ruling which had been relied on in a recent high-profile banking case where warrants had been found to be faulty.
The judge added that he accepted
‘Grounds to argue his appeal’
evidence from Dwyer’s counsel that the ‘writing has been on the wall for the Act for some very considerable time now’.
Judge O’Connor warned that the State should tread carefully in matters that concerned people’s dignity and privacy in the sphere of telephony data retention and access. Privacy and the rights of free expression and association by actual, feared and mandatory surveillance cannot be underestimated, he said.
A date has not yet been set for Dwyer’s appeal against his conviction.
IN what must be seen as a alarming development, murderer Graham Dwyer yesterday was successful in a High Court challenge to the mobile phone data used as evidence to convict him of the 2012 murder of Elaine O’Hara.
The court found that Irish legislation allowing for the retention and access to mobile phone data breached European Union law and the European Convention on Human Rights because such retention was general and indiscriminate, and not subject to prior review by a court or independent authority before it could be accessed, and because there are no legislative guarantees against abuse.
Specifically, the European Court of Justice has previously ruled that even organised crime cannot be targeted in this way, when it declared invalid a European directive obliging service providers to retain data for two years.
Judge Tony O’Connor said it was not an automatic consequence of his ruling that trials would collapse or that convictions would be declared unsafe, but that has to be the worry.
Privacy is an important right, and one not to be sacrificed lightly, but as we saw in the cases both of Dwyer and Joe O’Reilly, who murdered his wife Rachel Callaly, the location of their mobile phones was crucial in the conviction process.
This established, in the first instance, that an anonymous so- called burner phone could be traced to Dwyer by crossreferencing its location to his contract phone, and in the second that O’Reilly’s movements contradicted his own account of his whereabouts.
It would be a slap in the face to the brilliant detectives in both cases if their forensic tracing came to naught. The right to privacy must be balanced by An Garda Síochána’s right to pursue all avenues of inquiry to ensure justice is served and savage killers are taken off our streets.