Graham Dwyer ‘cannot escape’ data ruling made during trial

Man convicted of Elaine O’Hara’s murder argues phone data should not have been used

Convicted murderer Graham Dwyer. File photograph: Cyril Byrne/The Irish Times.

Convicted murderer Graham Dwyer. File photograph: Cyril Byrne/The Irish Times.

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Graham Dwyer “cannot escape” a ruling that data generated by his mobile phone could be used as evidence against him during his trial for the murder of Elaine O’Hara, the High Court has been told.

Brian Murray SC, for the State and the Garda Commissioner, said telecommunication data from Dwyer’s personal mobile phone was retained and accessed, under the 2011 Communications (Retention of Data) Act by gardaí investigating Ms O’Hara’s death.

At the relevant time, Ireland was mandated by the EU to have such an Act in relation to retained data for the investigation, prevention and prosecution of serious crimes, he said.

Counsel said the European Court of Justice (ECJ) had in 2014 made certain adverse findings about the 2006 EU directive underpinning the 2011 Act.

Dwyer’s lawyers later applied to have the retained data excluded from his 2015 criminal trial based on the ECJ’s decision but the trial judge, Mr Justice Tony Hunt, allowed the contested evidence go before the jury.

The State maintains that meant the retention and use of Dwyer’s data at his trial was lawful and that is a finding Dwyer “cannot escape”.

Counsel was making submissions on the 10th day of Dwyer’s action aimed at having provisions of the 2011 Act struck down.

Dwyer, who denies killing Ms O’Hara, claims the provisions breach his privacy rights and data obtained under the Act should not have been used at his trial.

He claims the 2011 Act suffers from the same flaws identified by the ECJ in holding the 2006 data retention directive was invalid and his case is further strengthened by subsequent rulings the ECJ made in 2016.

During his submissions on Tuesday, Mr Murray said no evidence had been given by the ECJ concerning how alternatives to a general data retention system would work.

The 2016 ECJ rulings did not refer to any jurisdictions where alternative retention regimes which would be deemed less invasive of privacy rights had been attempted or tested, he said.

Submissions in the case are expected to conclude later this week after which it is expected Mr Justice Tony O’Connor will reserve his judgment.

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