Friday 20 July 2018

State does not accept Graham Dwyer's right to privacy was breached, High Court hears

Graham Dwyer
Graham Dwyer

Aodhan O'Faolain

The State does not accept Graham Dwyer's constitutional right to privacy was breached when retained data generated by his mobile phone was accessed by gardai investigating the murder of childcare worker Elaine O'Hara.

Sean Guerin SC, for the State and the garda Commissioner, told the High Court on Thursday that his side was not making a submission to the court that Dwyer's privacy had not been in some way interfered with when his phone data was accessed.

Under the 2011 Act telecommunication data from Dwyer's personal mobile phone was retained and accessed by Gardai investigating Ms O'Hara's death.

Data generated by his phone was put before the jury by the prosecution during Dwyer's 2015 trial at the Central Criminal Court for Ms O'Hara's murder.

Dwyer's right to privacy in relation to his phone data had to be weighed against other competing rights, counsel said.

In the hierarchy of rights under the Constitution, the right of gardai investigating Ms O'Hara's death to access retained data generated by Dwyer's phone, which placed him at certain places at certain times, came ahead any right to privacy Dwyer enjoys under Constitution, counsel said.

Counsel said gardai investigating Ms O'Hara's murder established Dwyer had an extra marital affair with Ms O'Hara.

While the State had no business to look into any extra marital affair, in this case where Ms O'Hara went missing before her body was discovered , the State had a clear right to look into the relationship between her and Dwyer and seek data retained by the telecommunications provider in relation to his phone.

In all the circumstances it could not be said that the retention of the data and the access of such data by gardai breached Dwyer's right to privacy counsel said.

Mr Guerin was making submissions before Mr Justice Tony O'Connor on the aspects of Dwyer's challenge against Ireland's data retention laws concerning the Irish Constitution.

In his action against the State and the Garda Commissioner the Cork born architect,  who denies killing Ms O'Hara, claims the 2011 Communications (Retention of Data) Act, is unconstitutional and breaches his rights under the EU Charter and the European Convention on Human 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.

The action continues.

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