Graham Dwyer seeks to have laws on trial evidence changed

Man convicted of murdering Elaine O’Hara in 2012 brings High Court challenge


Graham Dwyer has asked the High Court to strike down provisions of the law that allowed data from mobile phones to be used as evidence during his trial for the murder of Elaine O’Hara.

Dwyer was jailed for life in April 2015 after a jury at the Central Criminal Court found him guilty of Ms O’Hara’s murder. He denied killing the childcare worker and a date for his appeal against conviction has yet to be fixed.

In High Court proceedings, Dwyer (45) is challenging provisions of the Communications (Retention of Data) Act 2011 which allowed gardaí investigating Ms O’Hara’s death to obtain and use certain data, including phone records, as evidence against him during his lengthy trial. Under the Act, data may be retained for two years.

Opening the case on Tuesday, his lawyers told Mr Justice Tony O’Connor certain provisions of the 2011 Act breach his rights to privacy and protection of his personal data under the Constitution, European Convention on Human Rights (ECHR) and Charter of Fundamental Rights of the European Union.

His case is against the Garda Commissioner, Director of Public Prosecutions, Ministers for Justice and Communications, Ireland and the Attorney General.

Breach of rights

As well as various declarations of breach of rights, he is also seeking damages and an order for his legal costs.

The action by Dwyer, represented by Remy Farrell SC, Ronan Kennedy BL and Kate McCormack BL, centres on a 2014 decision by the European Court of Justice striking down the EU directive underlying the 2011 Act.

Dwyer’s lawyers, citing the ECJ’s decision, had applied to the judge presiding at his trial, Mr Justice Tony Hunt, to exclude the data and phone analysis evidence. The judge refused their application and let the evidence go before the jury on the basis the 2011 Act remained in force and had not been challenged.

In opposing his High Court proceedings, the State parties, represented by Brian Murray SC, Sean Guerin SC and David Fennelly BL, deny the 2011 Act is incompatible with the Charter, ECHR or the Constitution.

Dwyer, who is serving his sentence in the Midlands Prison, was not in court.

Outlining the case, Mr Farrell said his client was not seeking to challenge his conviction in these proceedings but that was very much “a live issue” in Dwyer’s forthcoming appeal against his conviction.

Location data

Mr Farrell said a 2006 EU directive - 2006/24/EC - concerning the retention of data was designed to harmonise the laws of EU member states concerning retention of certain data on electronic communication services on communication networks, such as mobile phone and internet records.

It sought to ensure all data was available for the prevention, investigation, detection and prosecution of serious crime and required service providers to retain traffic and location data necessary to identify the subscriber or user.

Counsel said the 2011 Act was enacted by the State to give effect to the EU directive and permits a senior Garda to require a service provider to hand over any retained data believed to be required for an investigation of a serious offence punishable by imprisonment of five years or more.

Elaine O’Hara: murdered by Graham Dwyer. Photograph: Garda/PA Wire
Elaine O’Hara: murdered by Graham Dwyer. Photograph: Garda/PA Wire

In 2014, the ECJ found, in a case by Digital Rights Ireland Ltd v the Minister for Communications, Marine and Natural Resources and others, that the 2006 EU directive was invalid, he said.

The 2011 Act suffers from the same flaws as the directive and his client has “a fundamental difficulty” with the “indiscriminate regime” under the Act allowing everyone’s data to be retained for two years, counsel argued.

His side also had complaints about access to this data, particularly the lack of independent oversight in relation to accessing the data.

The decision to arrest and charge Dwyer in October 2013 was based to a significant extent on the analysis of the data disclosed to gardaí by mobile phone providers under the 2011 Act, he said.

The data analysis concerned the nature of contact between certain phones, including a phone used by Dwyer and “two phones attributed to him by the prosecution,” counsel said.

The evidence included dates, times, who was contacting whom and whether it was a text message, and which networks various contacts were routed through, counsel said.

The information allowed the prosecution tell the jury phones were in certain places at certain times and the location of those phones when calls and texts were made and received.

The case continues.