State to appeal Graham Dwyer data-retention ruling

Dwyer claimed data gathered from his phone should not have been used at his trial

The State is to ask the Supreme Court to hear its appeal against a High Court ruling in favour of Graham Dwyer, which forms part of his attempt to overturn his conviction for the murder of childcare worker Elaine O'Hara.

Brian Murray SC, for the State, told Mr Justice Tony O’Connor it would ask the Supreme Court to hear “a leapfrog appeal” against his finding that Dwyer is entitled to certain declarations concerning provisions of Ireland’s data-retention laws. If the Supreme Court agrees the appeal could be heard later this year.

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

As well as being an important ruling in respect to Dwyer’s appeal, the State argued the action had 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.

Mr Justice O’Connor having heard submissions from both sides about the precise declaration to be granted arising from his findings, said he was satisfied to make a single declaration in favour of Dwyer.

A stay applies on the declaration pending a hearing concerning Dwyer’s appeal, and any further stay will be decided on later.

The judge said Dwyer was entitled to a declaration that Section 6.1(a) of the Communications (Retention of Data) Act 2011, which allows data generated by mobile phone to be retained and accessed, was inconsistent with Articles 7, 8 and 52.1 of the European Charter of Fundamental Rights.

He noted that Dwyer’s lawyers had stated the declaration was sought for use as part of his pending appeal against his conviction, and was not some wider public interest point. As the matter was to be appealed, his ruling should not be used as a reason for retained telephony data to be destroyed, he said.

The judge also made a recommendation under the Attorney General’s legal aid scheme that Dwyer’s legal costs be paid by the State.

Dwyer, who denies killing Ms O'Hara, claimed that data gathered from his phone under the 2011 Act should not have been used at his 2015 trial before the Central Criminal Court.

Work phone

The data, which was generated by Dwyer’s work phone, placed the phone at specific places at particular times and dates. That data was used to link Dwyer to another mobile phone which the prosecution told the jury during his trial that he acquired and used to contact Ms O’Hara, whom he had an affair with.

The use of the data, Dwyer claimed, was unconstitutional and breached his rights under the EU Charter and the European Convention on Human Rights, including his right to privacy.

Dwyer’s lawyers argued the Act was introduced to give effect to a 2006 EU directive concerning the retention and use of data. The European Court of Justice (ECJ) found in 2014 that the directive was invalid, and that position was further strengthened in subsequent rulings by that court in 2016.

Dwyer claimed the 2011 Act suffered from the same flaws identified by the ECJ.

Mr Justice O’Connor held the 2011 Act provides for an indiscriminate retention regime, and said the ECJ had found such regimes were prohibited under articles of the European Charter.

He found Garda practices of applying for and obtaining mobile phone data were not enough to satisfy the decisions of the European courts in regard to access.

He ruled the sections of the 2011 Act concerning access to retained data contravened EU law and the European Court of Human Rights because there was no prior review by a court of administrative authority for access to telephony data.