Judgment unlikely to lead to Graham Dwyer’s freedom

Ruling on use of phone metadata could severely impact gangland investigations

Graham Dwyer received "limited" relief from the High Court on Thursday in his fight to overturn his conviction for the murder of Elaine O'Hara.

That word – “limited” – is key. Although the court struck down aspects of Ireland’s data laws relating to mobile phone records used in the investigation into Dwyer, he is unlikely to win any future appeal against conviction.

However, that does not mean Mr Justice Tony O’Connor’s ruling is unimportant; far from it. Although it is unlikely to offer a route to freedom for Dwyer, it is almost certain to affect other cases including several high-profile investigations currently ongoing into the Hutch-Kinahan feud.

In lengthy and complex proceedings before the High Court, Dwyer’s lawyers argued the authorities were wrong to use metadata from his work phone which was then was used to place him in particular places at particular times.

Gardaí used this phone data to link Dwyer to another phone which he used to contact Ms O’Hara in the lead-up to her murder.

Dwyer argued, and the High Court agreed, that the law providing for the retention of his phone data was in breach of his rights. He based this on the fact that the European Court of Justice (ECJ) ruled in 2014 that the EU directive on which the law was based was invalid.

Limited help

So does that mean the evidence shouldn't have been admitted at trial? Probably not, according to barrister Fergal Foley. "If the manner in which the evidence is obtained is judged to be unlawful, it doesn't necessarily follow that it can't be used," he said.

The reason Thursday’s judgment is of limited help to Dwyer stems from the Supreme Court’s “JC judgment” which states that in certain cases gardaí can use evidence which was collected in improper circumstances as long as they gathered that evidence in good faith, Mr Foley said.

TJ McIntyre, a lecturer in law at UCD and chair of Digital Rights Ireland (DRI) agrees. It was DRI that brought the case to the ECJ that resulted in the striking down of the directive in 2014.

“I think it is very unlikely the conviction will be overturned,” McIntyre says. “It all comes down to timing.” If, as seems likely, the phone evidence against Dwyer was collected by gardaí “in good faith” and before the ECJ judgment of 2014, it will probably stand, he says.

It is the point at which gardaí obtained the evidence that matters, not the date of the trial which took place in 2015.

It’s not even certain the Court of Appeal will hear Dwyer’s case. It is understood the State intends to appeal Thursday’s ruling.

Even if an appeal is successful the best Dwyer could hope for is a retrial. While the phone metadata evidence played a role in his conviction the prosecution also had extensive additional evidence linking him to the murder including text messages on Ms O’Hara’s phone.

So any investigation using metadata which took place before 2014 is likely safe. Cases such as the 2007 conviction of Joe O’Reilly for the murder of his wife will likely be unaffected despite also relying heavily on mobile phone data.

The problem for the gardaí and the DPP is not Dwyer, it’s all the investigations launched after the 2014 ECJ judgment and a related 2016 ruling.

By 2016, the State was well aware its data retention legislation was deficient yet nothing was done. This could impact dozens of serious criminal cases including investigations into gangland crime which increasingly rely on sophisticated data retrieval methods like those employed in the Dwyer case.

On Thursday, the DPP, Department of Justice and Garda management were poring over the 99-page Dwyer judgment to assess it potential implications.

“As regards the Dublin feud, there’s probably not many convictions which will be affected but there’s certainly a worry that it will affect some live investigations and pending cases,” a senior garda said.