Boost for killer’s plan to appeal against his conviction for the murder of Elaine O’Hara
The Supreme Court is to make orders upholding Graham Dwyer’s successful High Court challenge to Ireland’s data retention laws and dismissing an appeal by the State.
Confirmation of the decision came from Chief Justice Donal O’Donnell after a lawyer for the State said it had no objection to the orders being made.
It means the Supreme Court will not have to reconvene for any further hearing in the matter and will simply issue the orders.
Foxrock architect Dwyer, who is serving a life sentence for the murder of childcare worker Elaine O’Hara, plans to use the ruling to bolster a separate challenge he has taken against his conviction.
Mobile phone metadata proved crucial to the identification of Dwyer as a suspect in Ms O’Hara’s disappearance.
His conviction appeal could now get underway as early as the autumn.
In 2018 the High Court found the Irish legislation under which gardaí accessed the records, the 2011 Communications Act, contravened EU law and the European Convention on Human Rights.
This was because the two years mobile phone companies had to retain data was general and indiscriminate and the system used by gardaí to access such data lacked external oversight.
The Supreme Court subsequently heard an appeal against the ruling by the State.
It indicated it would uphold the High Court ruling, but first wanted clarity on key issues of EU law from the Court of Justice for the European Union (CJEU) in Luxembourg.
The CJEU issued its ruling last month, essentially confirming the High Court’s main findings.
At a brief hearing on Thursday, Sean Guerin SC, for the State, said the parties were agreed that a further hearing of the Supreme Court was not required to deal with the matter.
He said that in light of the CJEU judgment, there could be no objection to the court setting aside the stay on the order of the High Court, affirming the declaration made by the High Court and dismissing the appeal by the State.
Dwyer’s counsel Remy Farrell SC said his side had no difficulty with the form of the order.
He said his client’s interest in the case was limited to being able to argue about the admissibility of evidence as distinct from anything wider.
Mr Justice O’Donnell said the five remaining members of the court who heard the appeal would make the orders by consent.
Ms O’Hara disappeared in 2012 and her remains were discovered the following year at Killakee forest in the Dublin Mountains.
Mobile phone metadata was of significant assistance to gardaí in the investigation.
They were able to track the movement of pre-paid phones used to contact Ms O’Hara and found these mirrored those of Dwyer’s work phone as he travelled around the country.
Synced text messages on Ms O’Hara’s laptop revealed they had been involved in an abusive sadomasochistic relationship.
Data enabled investigators to piece together her final journey.
Detectives discovered Dwyer’s work phone pinged off masts in Killakee an hour after one of the pre-paid phones texted that he was going to check out the spot for her “punishment”.
Although the Supreme Court orders will bolster Dwyer’s appeal, they do not necessarily mean his conviction will be overturned.
If the Court of Appeal finds that the data evidence should have been excluded from his trial, it will have to weigh up whether there was enough other evidence to prove the case against Dwyer.
There is also the possibility the court may find that the probative value of the evidence outweighed any prejudice to Dwyer.
Another issue which is likely to arise is a previous Supreme Court ruling in a case called JC.
This found that evidence obtained in breach of a person’s rights could be admissible if the breach was inadvertent, an argument which could be made in the Dwyer case as gardaí used the laws that were in place at the time.