Saturday 15 December 2018

Graham Dwyer's appeal over use of mobile phone records at trial to begin tomorrow

Graham Dwyer Picture: Collins
Graham Dwyer Picture: Collins

Tim Healy

Convicted murderer Graham Dwyer's High Court challenge against the State over the use of mobile phone records during his trial is due to start on Tuesday.

Dwyer was convicted by a jury of the murder of Elaine O’Hara following a lengthy trial at the Central Criminal Court in March 2015.

In High Court proceedings, Dwyer claims certain provisions of the Communications (Retention of Data) Act 2011 breach his rights to privacy under the Constitution, the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union.

An EU Directive underlying the 2011 Act was struck down by the European Court of Justice (ECJ) in 2015.

Dwyer's case, which was commenced shortly after his conviction, is understood to raise important issues of law. 

The case, expected to last for approximately two weeks, will be heard by Mr Justice Tony O'Connor.

Dwyer will not be present at the hearing. 

Cork-born Dwyer, an architect with an address in Foxrock, Dublin, seeks, if appropriate, damages and, if necessary, a reference of issues to the ECJ.

His action is against the Garda Commissioner, the DPP, Ministers for Justice and Communications, Ireland and the Attorney General, which opposes his claims.

Dwyer claims the ECJ ruling means that Irish legislation implementing the directive was illegal and that data collected on his phone was also therefore invalid.

Many requests for disclosure of mobile phone records were made under the relevant provisions of the 2011 Act by gardai investigating Ms O’Hara’s murder and were granted by the relevant service providers. Phone data was also admitted into evidence during the trial.

During Dwyer’s criminal trial, his lawyers argued the mobile phone data was inadmissible as evidence but those arguments were rejected by the trial judge.

Following his conviction, he was jailed for life and his appeal against conviction has yet to be heard.

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