Graham Dwyer wins legal action against State, receives boost in bid to appeal murder conviction

Graham Dwyer has received a boost in his bid to appeal his murder conviction after the High Court found Irish legislation used to access his phone records contravenes EU law and the European Convention on Human Rights (ECHR).

However, the court said it was not an automatic consequence of its decision that any convictions would be quashed.

Architect Dwyer (46) was sentenced to life imprisonment in April 2015 after a jury at the Central Criminal Court found him guilty of the murder of Elaine O’Hara.

Evidence relating to the use of mobile phones formed a crucial part of the case against him.

Dwyer, who denies killing the childcare worker, brought a challenge against provisions of 2011 Communications Act which allowed gardaí investigating Ms O’Hara’s death to obtain and use certain data, including phone records, as evidence against him during his lengthy trial.

This morning the High Court ruled provisions set out in Section 6 of the 2011 Act contravene EU law and the ECHR because there is no prior review by a court or an independent administrative authority for access to the telephony data.

In the proceedings, lawyers for Dwyer also argued sections of the Act were repugnant to the Constitution.

However, Mr Justice Tony O’Connor said the court would not be making a declaration on this issue.

Dwyer was not seeking to challenge his conviction in the proceedings.

However, today’s ruling is likely to have a bearing on a challenge to his conviction set to be heard by the Court of Appeal.

He was not present in court as the ruling was delivered and is currently incarcerated at the Midlands Prison.

Mr Justice O’Connor said it was not an automatic consequence of his decision that trials would collapse or that convictions would be quashed.

He said Dwyer would be obliged, in his appeal, to address rules regarding admissibility of evidence.

The judge referred to a Supreme Court case know as JC, which related to the admissibility of evidence.

In that case 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 involved was not conscious and deliberate.

Dwyer’s case centred on the European Courts of Justice’s decision in 2014 to strike down the EU directive underlying the 2011 Act.

Among the flaws that court identified was that the directive interfered more than was strictly necessary with fundamental rights to respect for private life and the protection of personal data. It also found the directive did not provide sufficient safeguards against the risk of abuse or unlawful access of data.

While other EU countries have taken steps to amend their national laws, Ireland has not done so.

Dwyer met childcare worker O’Hara online.

She disappeared in August 2012 and her remains were not found until 13 months later in a forest at Killakee in the Dublin Mountains.

Mobile phone data obtained by gardaí had a large bearing on the investigation of her murder.

Using this 2011 Act, gardaí obtained data associated with Dwyer’s work mobile phone and other handsets discovered during the course of their investigation.

Using cell-site analysis, detectives were able to pinpoint roughly where Dwyer was at certain points in time based on the movements of his phone.

This assisted investigators to establish his routine in the months prior to Ms O’Hara’s disappearance.

Crucially, cell-site analysis was also able to link the movements of Dwyer’s work phone to those of a Nokia mobile phone discovered in the Vartry Reservoir in Co Wicklow in September 2013.

When Dwyer went somewhere, he tended to bring both phones with him.

This second handset, known as the “master” phone, was used by Dwyer to communicate with Ms O’Hara.

She used another Nokia handset, known as the “slave” phone, which gardaí recovered during the investigation. Both the “master” and “slave” phones were detected in Shankill, Co Dublin, on the night Ms O’Hara disappeared.

Detectives were also able to “resurrect” text messages from the phones, as well as messages that were backed up on a computer.

This enabled them to reconstruct conversations between Dwyer and his victim.

In a statement this afternoon, Justice Minister Charlie Flanagan described the ruling as “a very detailed and lengthy judgment in what is a very complex and dynamic area of the law”.

“The Court’s judgment will have to be considered very carefully in order to identify exactly what actions are necessary and the advice of the Attorney General will have to be taken in that regard.”

Mr Flanagan said it is “clear that the current legal framework allowing for access to communications meta-data to combat criminals and terrorists needs to be modernised in light of evolving jurisprudence”.

He said the Government is at an advanced stage in drafting a new Data Retention Bill which takes accounts of some aspects of today’s judgment.

“Mr Dwyer is, in separate legal proceedings, appealing against his conviction for murder and in those circumstances it would not be appropriate to make any comment on those details of the case. That appeal is a matter for the Courts,” the minister said.

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