Graham Dwyer ruling: State now weighs up appeal
Attorney General consulted after killer's court win
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 a 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."