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Ireland 'Enormous amount' at stake in in State's appeal against key ruling in favour of murderer Graham Dwyer, Supreme Court hears

18:40  16 december  2019
18:40  16 december  2019 Source:   independent.ie

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Murderer Graham Dwyer wins legal action against State and Garda Commissioner over phone data © Independent.ie Murderer Graham Dwyer wins legal action against State and Garda Commissioner over phone data

The Supreme Court has been told an “enormous amount” is at stake for the fight against serious crime in the State’s appeal against a key ruling in favour of convicted murderer Graham Dwyer.

If a High Court judgment in favour of Dwyer’s challenge to a data retention laws stands, that means a “virtual space” in which criminality exists cannot be accessed by the State authorities, Paul Gallagher SC said.

Counsel said phone data had played a "significant" role in Dwyer's trial for the murder of childcare worker Elaine O'Hara but there was also other evidence. The trial had heard three phones were connected to Dwyer and Ms O'Hara, including two phones referred to as the "Master" and "Slave" phones, he outlined.

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He was opening the State’s appeal before a seven judge Supreme Court against the High Court ruling, which could assist Dwyer‘s separate appeal against his conviction for the murder of Ms O'Hara.

Dwyer was not in court on Monday.

a man wearing a suit and tie: Graham Dwyer © www.collinsphotos.com Graham Dwyer The State’s appeal concerns a decision of Mr Justice Tony O’Connor in December 2018 that part of the State’s data retention laws concerning information generated by telephones contravenes EU law and provides for an indiscriminate data retention regime.

As well as being an important ruling in relation to Dwyer’s appeal against conviction, the High Court finding has major implications in relation to the authorities’ ability to retain, access and use information generated by mobile phones in the investigation of serious criminal activities.

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Dwyer, who denies killing Ms O’Hara, claims data gathered from his phone, under the Communications (Retention of Data) Act 2011, should not have been used at his 2015 trial because that breached his rights, including to privacy, under the Constitution, EU Charter and the European Convention on Human Rights.

Mr Justice O’Connor found sections of the 2011 Act concerning access to retained data contravene EU law and the European Court of Human Rights because there was no prior review by a court of administrative authority.

  'Enormous amount' at stake in in State's appeal against key ruling in favour of murderer Graham Dwyer, Supreme Court hears © PA He suspended a declaration to that effect pending the outcome of the Supreme Court appeal.

In opening the appeal on Monday, Mr Gallagher, with Sean Guerin SC, said the case raises fundamental questions about retention of and access to telecoms metadata.

“It is no exaggeration to say there is an enormous amount at stake in this appeal,” he said. This applied not just concerning Dwyer’s conviction but more generally in relation to the powers of the State providing for retention of telecoms metadata and accessing that, particularly for investigating serious crime.

Court to rule later in State's phone data appeal

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We now effectively live in a digital society where communications are largely via mobile phone s and the internet and, if the High Court ruling stood, there would be a virtual space in which criminality exists which cannot be accessed by the State authorities.

The State’s position was the High Court erred in several respects, including in not having made findings of fact which, counsel argued, would be crucial to deciding whether the declaration granted to Dwyer was a proportionate response.

The appeal continues and is expected to run until Wednesday.

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