Lawyers for Graham Dwyer, who was convicted of murdering a vulnerable care worker, have argued that the retention of mobile phone data is an “opportunistic form of mass surveillance” that transforms phones into tracking devices that can reveal a detailed picture of every aspect of a person’s life.
Remy Farrell SC, for Dwyer, told the three-judge Court of Appeal that mobile phone data should not have been admitted as evidence in his client’s trial as the retention of that data was a breach of his rights under the European Charter of Fundamental Rights.
Mr Farrell said the Court of Justice of the European Union (CJEU) has said “again and again” that the retention of mobile phone data cannot be done and the Irish courts must now “internalise” what the European court has said.
Michael Bowman SC, also for Dwyer, said that at one point as evidence was being heard in front of the jury in his client’s trial, Mr Justice Tony Hunt “looked in a very disapproving manner at the defendant”, looked away and then “glared back down at the defendant”. Mr Bowman said this was a non-verbal communication that “something has triggered the judge” and that a jury can pick up on non-verbal cues.
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Dwyer (50), a Cork-born architect with an address at Foxrock in Dublin, was convicted by a jury at the Central Criminal Court in 2015 of the murder of Elaine O’Hara on August 22nd, 2012. Ms O’Hara had been discharged from a mental health hospital just hours earlier.
His trial heard that Dwyer fantasised about stabbing a woman during sex and used Ms O’Hara to fulfil his fantasy. After murdering her, he disposed of some of her belongings in the Vartry reservoir in Wicklow and tried to make it look like she had taken her own life. He dumped her body in a forest where it was found in 2013.
Much of the evidence at Dwyer’s trial focused on text messages between a “slave” phone used by Ms O’Hara and a “master” phone used by Dwyer and on the movements of those phones.
Mr Bowman on Thursday said the jury could also have been “overwhelmed” and “overborne” by nine videos of Dwyer being intimate with different women. The videos were introduced in the trial to show the extent of his interest in bondage, discipline and sadomasochism (BDSM) and to challenge his claim that he “wasn’t really into” BDSM and that it was more Ms O’Hara’s interest.
He said that a description of the videos would have achieved the prosecution’s aims. Showing the actual videos, he said, had introduced “something toxic into the forensic process of a criminal trial” and could have “overwhelmed the ability of the jury to remain impartial”.
Mr Farrell said on Thursday that he was objecting only to the retention of data in relation to a phone with a number ending in 407 which was referred to as Dwyer’s work phone. He said information from that phone was used by the prosecution to attribute the other phones to his client but that evidence should not have been admitted.
Indiscriminate surveillance
He said a 2011 law that required mobile phone companies to retain data relating to the use and movement of mobile phones for two years amounted to “general and indiscriminate” surveillance and did not target people suspected of criminal activity but “everyone who has a mobile phone”.
Dwyer, he said, was not under suspicion at the time that his mobile phone data was retained but that information was then used to “build up an intensely detailed picture of every aspect of Mr Dwyer’s life”.
Mr Farrell said that “everything the Court of Justice is talking about” in relation to the dangers of data retention had happened in this case. Counsel said there may be “considerable misgivings” in the Irish courts about the CJEU’s findings and that there may be historical reasons why European Union member states such as Germany and Austria had been to the forefront of asserting data rights.
But, he said, “one has to accept the result and then fully internalise the result because all State institutions, particularly the courts, are under a duty of loyal co-operation insofar as the Court of Justice is concerned”.
He said it is not up to EU members states to “decide what their view is” or to balance indiscriminate retention against the right to prosecute crimes.
“That ship has sailed,” he said.
Sean Geurin SC, for the State, will respond to Dwyer’s lawyers on Friday in front of the president of the court, Mr Justice George Birmingham sitting with Ms Justice Isobel Kennedy and Mr Justice John Edwards.