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'Leapfrog' appeal sought over Dwyer phone ruling

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Challenge: Graham Dwyer was boosted by last month’s ruling as he tries to overturn  his murder conviction in the court of appeal

Challenge: Graham Dwyer was boosted by last month’s ruling as he tries to overturn his murder conviction in the court of appeal

Challenge: Graham Dwyer was boosted by last month’s ruling as he tries to overturn his murder conviction in the court of appeal

A High Court ruling on the retention and use of mobile phone data, which boosts Graham Dwyer's bid to appeal against his murder conviction, is to be appealed by the State.

The High Court heard yesterday that the Garda Commissioner and other State defendants in the action would be seeking a "leapfrog" appeal.

This will involve applying to bypass the Court of Appeal to have the matter determined by the Supreme Court.

Last month's ruling was significant for former Foxrock-based architect Dwyer (46), who plans to challenge his conviction for the murder of childcare worker Elaine O'Hara in the Court of Appeal.

Mobile phone data obtained by gardaí had a large bearing on the investigation into her murder. Gardaí managed to link the movements of Dwyer's phone with that of a second phone found in Vartry Reservoir in Co Wicklow which he had used to communicate with Ms O'Hara.

His trial heard he met Ms O'Hara online and stabbed her to death for his own sexual gratification.

But Mr Justice Tony O'Connor found the provisions set out in Section 6 of the 2011 Communications Act, which allowed senior gardaí to request user data from telecommunications providers, contravened EU law and the European Convention on Human Rights.

The judge found the retention of data was general and indiscriminate, with no prior review by a court or an independent administrative authority for access to data and no adequate legislative guarantees against abuse of such data.

Yesterday, Mr Justice O'Connor put a stay on declarations arising from his ruling taking effect until an appeal is lodged and until the first hearing before the Court of Appeal or the Supreme Court. It will be up to the higher court to grant any further stays, he said.

Remy Farrell SC, counsel for Dwyer, said his client intends to argue against the retention and access of data in his conviction appeal.

While last month's ruling could potentially have implications for Dwyer's appeal and other cases, it does not automatically mean any convictions will be quashed.

In his ruling last month, Mr Justice O'Connor said Dwyer would be obliged, in his appeal, to address rules regarding admissibility of evidence. The judge referred to a case know as JC, where the Supreme Court ruled that evidence obtained in breach of an accused's constitutional rights does not necessarily have to be excluded at trial if the breach was not conscious and deliberate.

Irish Independent