Monday 22 October 2018

Dwyer data retention challenge is misconceived, says State

Murderer Graham Dwyer. Pic: Sunday World
Murderer Graham Dwyer. Pic: Sunday World

Tim Healy

Convicted murderer Graham Dwyer challenge against Ireland's data retention laws is "misconceived" and is "a re-run" of an application dismissed by the judge presiding at the Cork born architect's 2015 trial, the High Court has heard.

Brian Murray SC for the State and the Garda Commissioner is not entitled to declarations that the 2011 Communications Act violated his right to privacy.

Under the 2011 Act telecommunication data from Dwyer's personal mobile phone was retained and accessed by the gardai investigating Ms O'Hara's death. Data generated by his phone was put before the jury by the prosecution during his trial at the Central Criminal Court for Ms O'Hara's murder.

Counsel said that his clients are "defending every aspect" of what Dwyer has challenged, and it is their case that the declarations Dwyer seeks are "inappropriate."

Counsel said Dwyer had already sought to have the evidence gathered under the 2011 deemed inadmissible at his 2015 trial, but the trial Judge Mr Justice Anthony Hunt had rejected that application.

Counsel added that it is the state's view that case did not require a reference to the European Court of Justice and the issues raised in the proceedings should be decided by the Irish High Court.

Counsel was continuing his submissions before Mr Justice Tony O'Connor on what was the 11th day of Dwyer's action against the State and the Garda Commissioner aimed at having provisions of Ireland's data retention laws struck down.

Dwyer, who denies killing Ms O'Hara, claims the 2011 Communications (Retention of Data) Act, breached his privacy rights.

Data obtained under that Act should not have been used at his trial, he claims. Dwyer argues the Act was introduced to give effect to a 2006 EU directive concerning the retention and use of data.

The European Court of Justice (ECJ) found in 2014 the directive was invalid and that position was further strengthened in subsequent rulings by that court in 2016. He claims the 2011 Act suffers from the same flaws identified by the ECJ.

In proceedings against the Garda Commissioner, and the State, Dwyer seeks various declarations that his privacy rights under the Irish Constitution, European Convention on Human Rights and the EU Charter have been breached.

The action continues.

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