Graham Dwyer ruling: does it make his conviction unsafe?

Why is Graham Dwyer in the news again?

Dwyer was jailed for life in 2015 after being convicted of the murder of Elaine O'Hara in 2012. Mobile phone metadata played an important role in securing his conviction. He later challenged the 2011 law under which that metadata was retained and won in the High Court, which ruled that the 2011 law breached EU law on data privacy because it allowed for general retention of data without necessary safeguards or independent oversight. The State appealed to the Supreme Court, which referred issues of EU law to the European Court of Justice. This week, the ECJ ruled that the data retention regime provided for in the 2011 Act breaches EU law.

What happens now?

The case will go back to the Supreme Court, which has to make a final ruling on the State’s appeal. Lawyers and data privacy campaigners believe the court has little option, given the emphatic European decision, but to reject the State’s appeal and strike down the 2011 law.

That sounds serious?

It is. Gardaí are concerned about the impact on serious crime investigations relying on mobile phone metadata and are sceptical whether the more limited data retention regime allowed for by the ECJ will meet their requirements. The implications of the Dwyer case, and of separate cases from the French and German courts over data retention issues, were regarded as so serious for the investigation of serious crime that several European states made submissions supportive of Ireland’s arguments in favour of a more liberal data retention regime than allowed for by the ECJ.

Bad news for the State but good news for Dwyer?

Not necessarily. He is almost certain to defeat the State’s appeal over the phone data issue in the Supreme Court, and the ECJ ruling will boost his separate criminal appeal against his conviction, to be heard by the Court of Appeal. However, he has other legal obstacles to overcome. The DPP is likely to argue at his appeal that there was other evidence against him at trial and may also seek to rely on a significant Supreme Court judgment, DPP v JC, allowing certain evidence to be admissible, even if obtained in breach of rights provided that gardaí can show the breach of rights was inadvertent. Because the European directive on which the Irish 2011 law was based was struck down in 2014, a year after gardaí obtained the metadata evidence used at Dwyer’s trial, the prosecution is likely to make the case they acted in good faith throughout.

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Surely others convicted on foot of phone metadata are ringing their lawyers?

That's a safe bet. The three men convicted of the abduction and assault of Quinn Industrial Holdings executive Kevin Lunney raised the Dwyer data issue during their trial and will seek to benefit from the ECJ ruling at their appeal. There was other evidence against them so there is no certainty of success. The data point is certain to feature in other trials and appeals, although, since the High Court decision, gardaí have generally reverted to more traditional methods of accessing phone metadata via District Court warrants, which meet the requirement of independent scrutiny. The problem for future investigations is that phone companies will be unable to retain metadata indiscriminately and for long periods for the purposes of serious criminal investigations.

What do data privacy advocates say?

“I told you so” springs to mind. They say the State has known of this problem for at least eight years and has yet to finalise a Bill to reform the law on data retention. The final form of the Bill will be published after the Supreme Court judgment in Dwyer’s case.