Graham Dwyer clear to appeal murder conviction as State concedes data ruling

Graham Dwyer’s appeal against his conviction for the murder of childcare worker Elaine O’Hara could be heard later this year now that the State has conceded its separate appeal over a key phone metadata ruling in his favour.

Dwyer’s lawyers are expected to seek an early hearing from the Court of Appeal, which currently has hearing dates available in November and December.

Given Dwyer has been in prison for seven years following his 2015 conviction for the 2012 murder, he may get a hearing date before that if his appeal is ready to be heard and if an urgent date is sought and granted.

The Court of Appeal’s next list to fix dates for appeal hearings is July 25th, but that does not preclude Dwyer’s side from applying before then for a hearing date.

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The State’s consent at the Supreme Court on Thursday to the dismissal of its appeal against a significant 2018 High Court mobile phone metadata ruling in favour of Dwyer has cleared the way for his separate appeal against conviction to proceed.

Mobile phone metadata concerning ‘Master’ and ‘Slave’ phones played an important role in securing his conviction.

The High Court’s Mr Justice Tony O’Connor in 2018 declared that a provision of the Communications (Retention of Data) Act 2011 breached EU law because it allowed for the retention of data on a general and indiscriminate basis without necessary safeguards or independent oversight.

A stay on that declaration, regarded as having enormous implications for the investigation and prosecution of serious crime in Ireland, was imposed pending the outcome of the State’s appeal to the Supreme Court against that decision.

The Supreme Court referred EU law issues in the case to the Court of Justice of the EU (CJEU). It gave a judgment on the matter last month effectively endorsing the High Court declaration. The CJEU judgment was widely regarded as tying the Supreme Court’s hands and there was little surprise in legal circles when the Chief Justice, Mr Justice Donal O’Donnell, was told earlier this month that the sides were seeking to agree final orders in the matter.

Seán Guerin SC, for the State, said, in light of the CJEU judgment, the Supreme Court was not required to deal further with the appeal and the sides had agreed on orders for the court to make. He asked for orders dismissing the appeal, lifting the stay on the 2018 High Court declaration and affirming that declaration.

Remy Farrell SC, for Dwyer, said the declaration related to section 6 of the 2011 Act concerning the phone metadata access regime as distinct from the retention regime, but the declaration “pointedly” referenced data retained on a general and indiscriminate basis. His side’s interest was to be able to argue the retention issue in Dwyer’s appeal against his conviction as distinct from a wider context, counsel indicated.

The Chief Justice said he would consult with the other members of the court but expected the orders, as agreed, would be drawn up by the court.

The CJEU decision in Dwyer’s case effectively signalled the end of the regime sanctioned by the 2011 Act under which gardai could directly access mobile phone metadata that phone companies had to retain on an indiscriminate basis for two years.

New laws are being prepared to address the findings of the CJEU and High Court.

Despite the CJEU judgment and the dismissal of the State’s Supreme Court appeal over the High Court declaration, many lawyers believe Dwyer still has a mountain to climb to succeed in appealing his conviction for reasons including a Supreme Court decision which allows unlawfully obtained evidence to be admissible if the court accepts it was obtained in good faith by gardaí.