Gra­ham Dwyer rul­ing: now State weighs up ap­peal

At­tor­ney Gen­eral con­sulted af­ter killer’s court win

Irish Independent - - Front Page - Shane Phe­lan

OF­FI­CIALS are con­sid­er­ing whether the Garda Com­mis­sioner and State should ap­peal the out­come of con­victed mur­derer Gra­ham Dwyer’s High Court ac­tion.

The Depart­ment of Jus­tice has con­firmed to the Ir­ish In­de­pen­dent ad­vice is be­ing sought from the At­tor­ney Gen­eral about a po­ten­tial ap­peal.

Dwyer’s bid to over­turn his con­vic­tion for the 2012 mur­der of child­care worker Elaine O’Hara re­ceived a boost when the court ruled on Thurs­day that leg­is­la­tion used by gar­daí to ob­tain his mo­bile phone data broke EU law.

The judg­ment could have ram­i­fi­ca­tions not just for the Dwyer ap­peal, but other cases and on­go­ing in­ves­ti­ga­tions. Leg­is­la­tion is be­ing pre­pared to re­place the struck-down law, but it won’t be ready un­til next year.

OF­FI­CIALS are con­sid­er­ing whether the Garda Com­mis­sioner and State should ap­peal the out­come of con­victed mur­derer Gra­ham Dwyer’s High Court ac­tion.

The Depart­ment of Jus­tice has con­firmed to the Ir­ish

In­de­pen­dent ad­vice is be­ing sought from the At­tor­ney Gen­eral about a po­ten­tial ap­peal.

Dwyer’s bid to over­turn his con­vic­tion for the 2012 mur­der of child­care worker Elaine O’Hara re­ceived a boost when the court ruled on Thurs­day that leg­is­la­tion used by gar­daí to ob­tain his mo­bile phone data con­tra­vened EU law.

The judg­ment could have ram­i­fi­ca­tions not just for the Dwyer ap­peal but other cases and on­go­ing in­ves­ti­ga­tions. Leg­is­la­tion is be­ing pre­pared to re­place the struck down law, but it will not be ready un­til some time next year.

Gar­daí are anx­ious the new leg­is­la­tion is in­tro­duced as soon as pos­si­ble to pro­vide cer­tainty for in­ves­ti­ga­tors.

“We are op­er­at­ing in vac­uum at the mo­ment. That is not a good place to be,” a se­nior source said.

Mr Jus­tice Tony O’Con­nor found a sec­tion of the Com­mu­ni­ca­tions (Re­ten­tion of Data) Act 2011, un­der which gar­daí could re­quest telecom­mu­ni­ca­tions data from ser­vice providers, con­tra­vened EU law and the Euro­pean Con­ven­tion on Hu­man Rights. The judge found the regime was gen­eral and in­dis­crim­i­nate, not sub­ject to prior re­view by a court, and lacked ad­e­quate leg­isla­tive safe­guards against abuse.

In a state­ment, the depart­ment said: “The judg­ment of the High Court in this case is lengthy and de­tailed and it raises a num­ber of com­plex le­gal is­sues that will re­quire de­tailed con­sid­er­a­tion.

“The ques­tion of an ap­peal is a mat­ter that will be con­sid­ered based on the ad­vice of the At­tor­ney Gen­eral.”

Should the rul­ing be ap­pealed, po­ten­tially to the Supreme Court, it would de­lay Dwyer’s con­vic­tion ap­peal.

The depart­ment said the rul­ing had to be stud­ied be­fore new leg­is­la­tion is fi­nalised.

It is thought that in a best case sce­nario, the leg­is­la­tion would be ready early in the new year.

Mr Jus­tice O’Con­nor’s rul­ing does not au­to­mat­i­cally mean tri­als will col­lapse or that con­vic­tions will be quashed.

While it does boost one of Dwyer’s grounds of ap­peal, it is un­likely to have a de­ci­sive im­pact on his ap­peal.

Le­gal ex­perts be­lieve ev­i­dence ob­tained un­der the 2011 Act will still be deemed ad­mis­si­ble in the Dwyer case as gar­daí col­lected it in good faith un­der the law that op­er­ated at the time.

How­ever, cases where data was ac­cessed by gar­daí af­ter a 2017 re­port to the Gov­ern­ment by for­mer Chief Jus­tice John Mur­ray – which warned the data re­ten­tion leg­is­la­tion was in breach of EU law – could be open to chal­lenge.

Gar­daí feel the po­ten­tial for ap­peals is less of a con­cern than the po­ten­tial im­pact on cur­rent in­ves­ti­ga­tions while a leg­isla­tive vac­uum ex­ists.

Un­der the 2011 Act, ser­vice providers were re­quired to re­tain in­ter­net data for one year and tele­phone and mo­bile data for two years.

The pro­posed new leg­is­la­tion would re­quire a ser­vice provider to re­tain all sub­scriber data for 12 months. It pro­poses an ap­pli­ca­tion would have to be made to a judge for au­tho­ri­sa­tion be­fore a dis­clo­sure re­quest could be made to a ser­vice provider.

The Ir­ish Hu­man Rights and Equal­ity Com­mis­sion said yesterday that en­hanced safe­guards would “bol­ster pub­lic con­fi­dence in in­ves­ti­ga­tions and the wider crim­i­nal jus­tice sys­tem”.

In a state­ment it said: “Legally ro­bust safe­guards will bol­ster the use of com­mu­ni­ca­tions data ev­i­dence in crim­i­nal tri­als, en­hance pro­tec­tions for vic­tims, and mit­i­gate the risk of mis­car­riages of jus­tice.”

Shane Phe­lan

‘We are op­er­at­ing in a vac­uum. That is not a good place to be’

Guilty: Gra­ham Dwyer mur­dered child­care worker Elaine O’Hara (left) in 2012

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