Judge recuses himself from Dwyer case at last minute after 'forgetting' he spoke in favour of law

The Irish judge at the European Court of Justice (ECJ) has recused himself from presiding over a case involving a challenge to the legality of data-retention practices that helped convict Graham Dwyer of murder.

Eugene Regan served as a Fine Gael senator from 2007-2011 and was the party's Seanad spokesman on justice, equality and law reform.

In a Seanad debate in 2011 he spoke in favour of the Bill which allowed for certain mobile-phone data to be stored and accessed for the purposes of combating serious crime, which would become the Communications (Retention of Data) Act 2011.

The Act is being challenged by Dwyer’s legal team and was under scrutiny at an ECJ hearing on Monday at which Mr Regan was one of the judges.

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When asked by The Irish Times whether the judge had disclosed his prior position on the legislation to the court, an ECJ spokesman said the judge had forgotten about his involvement but had now recused himself from the case.

“Until it was brought to his attention this week by your query, Judge Regan had no recollection of his involvement in the passage of the Communications (Retention of data) Act 10 years ago,” the spokesman said.

“However, to avoid any doubt as to his independence, Judge Regan has informed the president, pursuant to article 18 of the statute of the court, that he is recusing himself from this case with immediate effect.”

‘Genuine oversight’

The judge said it had been “a genuine oversight” on his behalf. “Had I known when I was included in the judges I would have absolutely dropped out of it,” he said. He said the fairness of the case should not be affected as deliberations had not yet begun. “There’s no harm done, I think, in terms of the equity of it.”

In the Seanad, Mr Regan described the Bill as “one of the key instruments in the interception and retention of data” and “a means of detecting some of the most serious forms of crime”.

He also described the period of data retention it allowed for as “appropriate, balanced and reasonable”. The two-year retention period is a specific point of challenge of Dwyer’s legal team that the ECJ has been asked to assess.

Mobile-phone data was key to revealing how Dwyer planned the murder of Elaine O’Hara, a 36-year-old childcare worker, in 2012.

Dwyer's legal team claims the Irish law that allowed for his data to be retained and accessed is contrary to European Union law, and the Supreme Court referred the case to the ECJ. It is to publish an advisory opinion on the case on November 18th, with a ruling to follow.