Graham Dwyer court victory has potential consequences for crime across Europe

Graham Dwyer's European court victory has potentially huge consequences for the investigation and prosecution of serious crime here and across Europe but few expect him to benefit personally.

Barrister Tony McGillicuddy, who specialises in criminal law, says it would be hard to find five criminal lawyers here who believe the European Court of Justice’s (ECJ) mobile phone metadata ruling will mean success for Dwyer in his separate criminal appeal against his conviction in 2015 for the murder of childcare worker Elaine O’Hara in 2012.

“The overwhelming view is that Dwyer faces an uphill battle in seeking to overturn his conviction,” says Mr McGillicuddy.

He is among many lawyers who believe the Supreme Court has little choice but to follow the CJEU decision and to dismiss the State's appeal aimed at overturning the High Court's 2018 ruling striking down the 2011 law under which the phone metadata used to convict Dwyer was retained and accessed.

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Mobile phone metadata retained by service providers and accessed by gardaí, including that relating to two phones, the “master” and “slave” phones, was an important part of the prosecution case against Dwyer.

When upholding Dwyer's challenge to provisions of the Telecommunications (Retention of Data) Act 2011, the High Court ruled in 2018 that the Act breached EU law concerning data privacy rights because it allowed for a general and indiscriminate data retention regime and access to that without any prior independent oversight.

Phone companies

The 2011 Act obliges phone companies to retain telecoms data for two years and meant gardaí could go straight to the companies to request access to the phone metadata of suspects – data showing who a suspect called and when and where the call was made.

The CJEU decision effectively means phone companies can no longer retain general phone metadata indiscriminately. It said EU law does permit targeted data retention subject to time limits, safeguards for those whose data is being accessed and independent prior review.

Gardaí have warned the inability to have general retention of data has serious implications for crime investigations.

Those currently facing trial, or convicted, on foot of phone metadata evidence, will also have an extra card to play in their efforts to avoid conviction or have their convictions quashed. Claims that charges grounded on CCTV evidence cannot be advanced are also expected.

Forthcoming appeals

The three men jailed for lengthy terms earlier this year after being convicted in connection with the abduction and savage assault on Quinn Industrial Holdings executive Kevin Lunney have already signalled they will seek to rely on the CJEU ruling in their forthcoming appeals.

They will argue that inadmissible phone metadata evidence was used to convict them.

Two men convicted in late 2018 of the murder of a man whose body was dumped at a lane at Rathcoole, Co Dublin, in May 2015 are also among those expected to raise the CJEU decision in their bids to overturn their convictions.

Stephen Tynan, Deerpark Lodge, Kiltipper, Tallaght, and Raymond Fitzgerald, Knockmore Grove, Killinarden, were connected to the murder of Andrew Guerrine, Tynan's cousin, through a car, CCTV footage and phone records.

Criminals convicted by phone metadata evidence but who have gone through the full trial and appeal process cannot benefit from the CJEU ruling. Joe O'Reilly, for example, has exhausted all appeal options concerning his conviction for the murder of his wife Rachel Calally in 2004.

There is also no guarantee of success for Dwyer or others in seeking to have their convictions quashed on the back of the CJEU ruling. The European court has said that issues about the admissibility of phone metadata evidence are a matter for the national court.

Obstacle

Dwyer will almost certainly be faced in his appeal with the formidable obstacle of the landmark Supreme Court majority judgment in the DPP v JC case in 2015.

The upshot of the JC decision is that, once the State can show that unconstitutionally obtained evidence was obtained due to an inadvertent breach of an accused’s constitutional rights, it is still admissible in evidence against the accused.

In meeting the JC obstacle, there is some speculation that Dwyer might seek to advance arguments that national law is not effective if it does not provide him with an exclusionary remedy.

Any such submission could lead to yet another outing to the European courts.

Since the High Court ruling, gardaí have reverted to using traditional methods of obtaining phone data. That involves applying to the District Court for warrants to require phone companies to hand over the data. Because a judge is involved, that meets the European law requirement of having independent oversight of data access requests.

The problem for crime investigations, is that if, as now appears almost certain, the 2011 law is struck down by the Supreme Court, phone companies will be unable to retain data generally for police access.

Data privacy campaigners have long criticised the legislature’s delay in addressing the problems with the general data retention regime which they say the State has been on notice of since at least 2014.

The Communications (Retention of Data) Bill 2017, which is aimed at addressing some of the problems identified by the courts, has been on hold pending the CJEU ruling.

Draft proposals include that phone companies would have to retain data for a year and gardaí can only obtain that on foot of a District Court order. However, data privacy campaigners have suggested a one year retention requirement would almost certainly be challenged in the courts.

Internet metadata

The State and gardaí are facing more hurdles in relation to accessing internet metadata. A case by Digital Rights Ireland over the legality of the one year retention by internet service providers of data concerning when a person logged onto the internet, and their IP address, is ready to proceed after the Supreme Court gives its final judgment on the Dwyer case.

Senior counsel Brendan Grehan, who has prosecuted many high profile criminal cases, said that in addition to those cases where the admissibility of phone location data has been challenged, challenges to CCTV evidence in other cases are "waiting in the wings".

Mr Grehan does not share the views of those predicting a Doomsday scenario as a result of the CJEU decision. “While there are probably lots of cases where the data point has been raised, I don’t think it will change a lot of convictions. I don’t believe it’s the end of civilisation as we know it, we’ll have to see who wins out in the end.”