THE long-awaited ruling by the Court of Justice of the European Union (CJEU), which has upheld Graham Dwyer’s challenge to the use of phone metadata to convict him, represents a major victory for Ireland’s most infamous killer – and criminals of his ilk everywhere in Europe.
One can only assume Dwyer has been celebrating in the Midlands Prison where he is serving a life sentence, since the CJEU released its judgment this morning.
The Luxembourg court found that the gardaí broke the laws governing the retention of phone data when they accessed text messages and cell-site data.
Those messages ultimately proved, beyond all reasonable doubt, that Dwyer – a misogynistic sadist – was responsible for grooming and then murdering his vulnerable victim, Elaine O’Hara.
The unprecedented ruling has opened the door wide for a potentially successful appeal against his 2015 conviction – and the appalling vista that Dwyer might actually win his freedom on the back of this, the technicality of all legal technicalities.
When one strips away the legal jargon wrapped around this judgement, it means one thing – the right to privacy of the perpetrators of serious crimes takes precedence over the rights of the victims whose lives they destroy; and the traumatised families like the O’Haras who are left to bear the consequences.
In recent months, huge numbers of people took to the streets across Ireland to vent their justifiable anger at the prevalence of male violence against women in Irish society.
We all shouted “enough is enough”, but today people everywhere are screaming for a different reason.
Within an hour of the CJEU announcement this morning, my phone was already cluttered with disbelieving questions.
But if Dwyer ultimately wins his freedom on the back of this judgement – both legal experts and gardaí say his chances of doing so are slim, but only time will tell – we can expect to see even greater crowds of angry people back on the streets and with good cause.
For if there ever was a ruling that showed the law up to be an ass – or likely to fuel Euroscepticism – it is this one.
But this case also raises serious questions as to why the Department of Justice did not draft legislation to block off this issue as effectively as possible in the years since the issue over data retention was first highlighted by the CJEU.
The prospect of Dwyer’s acquittal – a monster aptly described by Ms O’Hara’s traumatised family as having a “depraved and diseased mind” – would be a travesty of justice.
Graham Dwyer's text messages to Elaine O'Hara offered a clear insight into a man obsessed with thoughts of violence during sex. Photo: Collins Courts.
Indeed, while he is already a household name in Ireland, soon his name will be known and celebrated by criminals across the European Union as this judgement effectively hobbles law enforcement everywhere in the bloc.
The court ruled that imposing obligations on phone companies to retain data for use by law enforcement would “seriously interfere with the fundamental rights of the persons whose data have been retained”.
Today’s judgement will be sent back to the Irish Supreme Court which, legal experts say, will have little option but to endorse the ruling.
Then it will be left to the Court of Criminal Appeal to decide whether Dwyer has grounds for an appeal or not – and ultimately whether he should go free.
Many believe this will not happen and that there is still enough evidence to sustain Dwyer’s conviction without the phone data, but that really isn’t the point.
Needless to say, Dwyer will be the first in a long line of convicted rapists, murderers and organised crime figures rushing for the doors of the Court of Criminal Appeal, and similar courts across the EU, over the coming months and years.
Last year, in what was seen as an unprecedented move, Ireland’s legal representatives were supported by lawyers from 13 other member states and the European Commission in challenging the Court’s findings against data retention.
Irish Attorney General Paul Gallagher warned that the legal restrictions could have catastrophic consequences for the investigation of serious crime across the EU.
The multi-national effort to convince the court to review its position came about after the High Court in Dublin ruled that the State breached EU law by using Dwyer’s phone data to convict him.
So let’s remind ourselves of how Dwyer was unmasked and brought to justice.
The data at the heart of the CJEU case includes 2,600 text messages which Dwyer exchanged with his victim on two unregistered mobile phones he acquired purely for contact with Ms O’Hara.
The phones were used by Dwyer over a 17-month period up to the day of her murder in August, 2012.
The often obscene and grotesque content of the texts was central to the State’s case against Dwyer, who thought he had carried out the “perfect murder”.
It provided the chilling narrative of how the depraved former architect had stalked, manipulated and groomed a troubled young woman to satisfy his twisted fantasy to stab a sexual partner to death.
Dwyer had been the “master” in a warped relationship with his victim – his “slave” – which centred on BDSM: bondage, domination and sado-masochism.
The Garda investigation of the murder, which involved the use of a wide range of specialist forensic methods and good old-fashioned detective foot-slogging, exemplified the highest standards of police investigation and earned the officers involved universal admiration and praise.
Detectives identified Dwyer from personal details contained in the text messages – facts about his life which were corroborated both independently and by the killer himself when he was questioned.
Apart from the texts in which Dwyer repeatedly talked about committing murder and inflicting stab wounds on his “slave”, the data also tracked his movements at crucial times.
Cell-site analysis showed that wherever Dwyer’s official phone went within the country, it was shadowed by the unregistered phones being used by the “master”.
It built into an impenetrable wall of evidence against him which was reflected in the jury’s unanimous verdict of murder following one of the longest trials in Irish criminal justice history.
His lawyers have argued that Dwyer’s phones had been used as “personal tracking devices” and the gathering of the data breached his rights.
They told the CJEU that the data was accessed before their client was identified as a suspect, which they said amounts to indiscriminate retention of his data.
In his submission, the attorney general summarised the stark concerns of governments across the EU when he described the dire consequences of the law as it currently stands.
“There are serious crimes, we are telling you now, that will not be capable of being detected and prosecuted. And the reason is that modern technology has outpaced the means of investigation,” Mr Gallagher said.
“There is evidence out there that we will not be able to get. Europol has said that the member states have told you that. How can it be ignored without undermining a core union value? ”
Lawyer Tanguy Stéhelin, who represented the French Government, pointed to the fact that the Dwyer case showed the “tragic consequences” that such restrictions could have by hobbling police work in the investigation of serious crime and national security issues.
He said a judgement that favoured Dwyer’s argument could undermine public confidence in the justice system and the authority of the court.
Today’s ruling will have come as a major blow to the other victims of Dwyer’s appalling crime – the O’Hara family and his former wife – all of whom want to see him remain behind bars for the rest of his life.
The judgement will be referred back to the Irish Supreme Court to assess what implications it might hold for Dwyer’s case.
Graham Dwyer’s trial for the murder of Elaine O’Hara stands out as probably the most harrowing and grotesque drama ever to unfold in an Irish courtroom.
In the words of Seán Guerin, who prosecuted the case against Dwyer – and was part of the Irish legal team who argued the State’s case in Luxembourg – it was “almost the perfect murder” and she was “almost the perfect victim”.
Was it not for an extraordinary confluence of events involving a long hot summer, a curious angler, an inquisitive dog and a diligent cop we would never have known about the monster that lay hidden behind the facade of an unremarkable ‘Mr Nobody’.
To the casual observer, Dwyer was the quintessential Mr Average: a successful architect and family man living a comfortable life in upmarket suburbia. A proverbial twig in the forest.
But on the other side of his dual existence, and well hidden from view, was a cold-blooded predator.
Ms O’Hara was ideal for his nefarious purpose: a vulnerable, fragile woman whose life had been blighted by depression, anxiety and a chronic lack of self-esteem since childhood.
Her mental health issues first manifested as self-harm which escalated to a number of suicide attempts followed by long periods in a psychiatric hospital. Her medical records noted that she suffered from suicidal ideation.
The absence of self-worth and chronic personality disorder made her socially withdrawn and untrusting. She had few close friends and no boyfriends.
She also suffered from asthma and diabetes.
Somewhere along the way she was drawn into the twilight world of sexual fetishism.
She joined BDSM websites where she interacted with others who shared similar interests.
Her profile proclaimed that she wanted someone who could train her “to be the best submissive slave”. That drew Dwyer’s attentions – and the horror story began.
Dwyer took full advantage of her willingness to serve him. Like a parasite, he nourished himself by feeding on her insecurity and helplessness. He played with her like a cat with a mouse.
His sordid predilection was more extreme than BDSM – he derived sexual gratification by stabbing a woman during sex, and drawing blood.
Psychologists describe the condition as ‘piquerism’, which is defined as paraphilic disorder – a sexual desire to cause an unwilling victim psychological distress, injury or death.
The distressing text messages shed light into the darkest recesses of a deranged mind.
"I am a sadist. I enjoy others’ pain. You should help me inflict pain on you and help me with my fantasy," went one of Dwyer’s earlier texts to his victim.
Another read: "I want to stick my knife in flesh while I am turned on. Blood turns me on and I would love to stab a girl to death sometime." On another occasion he wrote: "My urge to rape, stab or kill is huge. You have to help me control or satisfy."
There was considerable evidence of how Dwyer deliberately exploited Ms O’Hara’s mental state, especially her suicidal tendencies.
"If you ever want to die promise me I can do it," Dwyer wrote, to which she replied: "Yes I promise Sir."
When she texted that she was no longer suicidal, he replied: "I'll have everything ready if it becomes too much, just think, all your worries gone."
Mr Justice Tony Hunt, who presided over the trial in 2015, noted that there had been no psychiatric examination of Dwyer.
“I don't know what's up with him. He is in his place of denial. He is in his place of arrogance and delusion and there he will stay for the life sentence that I am going to commit him to in a moment,” the judge said.
“It's now time to face his responsibilities. He is committed to a sentence of life imprisonment dating from September 17, 2013. It is a sentence he richly deserves.”
