State appeal over ruling in favour of Graham Dwyer likely to proceed next month

Appeal concerns key High Court decision concerning retention of mobile phone data

Graham Dwyer’s appeal against his conviction remains on hold pending the Supreme Court judgment on the State’s appeal. Photograph: Cyril Byrne / THE IRISH TIMES

Graham Dwyer’s appeal against his conviction remains on hold pending the Supreme Court judgment on the State’s appeal. Photograph: Cyril Byrne / THE IRISH TIMES

 

The Supreme Court is likely to proceed next month to hear the State’s appeal against an important ruling which could assist Graham Dwyer in his separate appeal against his conviction for the murder of childcare worker Elaine O’Hara, the Chief Justice has indicated.

The State and Dwyer both want the appeal – which concerns a key High Court decision concerning retention of mobile phone data – to proceed but issues have been raised about the potential impact on it of three cases currently before the Court of Justice of the EU (CJEU).

Those three cases were heard together and an opinion from the Advocate General of the CJEU concerning them is due in January.

During a Dwyer appeal management hearing on Monday, Sean Guerin SC, for the State, noted that opinion could have potential relevance for issues in this case. However, the reliefs being sought by the State are different from those in the CJEU cases and the State wants Dwyer’s appeal to proceed as scheduled in mid December, counsel said.

As the Supreme Court will reserve judgment on Dwyer’s appeal, the Advocate General’s opinion will be available before the Irish court’s judgment is delivered, he also noted.

Remy Farrell SC, for Dwyer, said the three cases before the CJEU could well produce judgments that may “provide enlightenment” on some of the issues in Dwyer’s case but none of the references would be “determinative” of the issues in this appeal.

The Supreme Court may decide to make its own reference to the CJEU of issues arising in this appeal, he also observed. His client remains in custody and while the appeal would not determine Dwyer’s status, it would have an impact on such determination and his side wanted it to go on, he said.

The Chief Justice, Mr Justice Frank Clarke, noted none of the CJEU referrals would lead to a “slam dunk” victory for either side in this appeal. If the appeal is adjourned pending the Advocate General’s opinion, it would delay the outcome, he also noted. His inclination was the appeal should go ahead as planned but he would discuss the matter with the other judges allocated to hear the case, he said. If there was to be any change, the sides would be notified shortly.

Dwyer’s appeal against his conviction remains on hold pending the Supreme Court judgment on the State’s appeal.

The State is appealing Mr Justice Tony O’Connor’s High Court finding that part of the State’s data retention laws concerning information generated by telephones contravenes EU law and provides for an indiscriminate data retention regime.

As well as being an important ruling in relation to Dwyer’s appeal against conviction, it has major implications in relation to the authorities’ ability to retain, access and use information generated by mobile phones in the investigation of serious criminal activities.

Dwyer, who denies killing Ms O’Hara, had claimed data gathered from his phone, under the 2011 Act, should not have been used at his 2015 trial before the Central Criminal Court as that breached his rights, including to privacy, under the Constitution, EU Charter and the European Convention on Human Rights.

Mr Justice O’Connor found sections of the 2011 Act concerning access to retained data contravene EU law and the European Court of Human Rights because there was no prior review by a court of administrative authority.