Graham Dwyer’s appeal against his conviction for the murder of childcare worker Elaine O’Hara opens at the Court of Appeal this morning.
The appeal will be heard by a three-judge court, comprising Court of Appeal president, Mr Justice George Birmingham, sitting with Mr Justice John Edwards and Ms Justice Isobel Kennedy.
Dwyer was convicted in 2015 but his appeal was on hold for some time pending the outcome of a separate appeal by the State. This was ultimately conceded by the State earlier this year, over a key phone metadata ruling by the High Court in Dwyer’s favour four years ago.
From Stepaside, Co Dublin, Ms O’Hara (36) was last seen on August 22nd, 2012, near Shanganagh Cemetery in south Dublin. She had been discharged from a psychiatric hospital just hours earlier.
A year later, her remains were discovered in the Dublin mountains.
Mobile phone metadata concerning ‘Master’ and ‘Slave’ phones ultimately played an important role in securing Dwyer’s conviction for the murder of Ms O’Hara.
The High Court 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 here, 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) and the CJEU gave a judgment last April which effectively endorsed the High Court declaration.
In light of that, the State conceded its appeal last May.
The Supreme Court made orders, agreed between the sides, dismissing the State’s appeal, lifting the stay on the 2018 High Court declaration and affirming that declaration.
The CJEU decision effectively signalled the end of the regime sanctioned by the 2011 Act under which gardaí could directly access mobile phone metadata that phone companies had to retain on an indiscriminate basis for two years. A new law has been introduced to address the findings of the CJEU and High Court.
Despite the phone metadata rulings in his favour, Dwyer’s side will still have to address a Supreme Court decision which allows unlawfully obtained evidence to be admissible if the court accepts it was obtained in good faith by gardaí.
