NewsCrime Desk

Graham Dwyer’s ‘early release date’

Crime DeskBy Patrick O'Connell
Graham Dwyer
Graham Dwyer

SADISTIC sex killer Graham Dwyer has claimed a European Court of Justice ruling on the legality of the State’s retention of phone data could see him freed from prison within months.

Dwyer has told fellow inmates that he believes authorities will have no choice but to quash his conviction for the murder of Elaine O’Hara if the Court of European Justice deems Ireland’s stance on the retention of phone data illegal.

“He’s very excited about the phone data challenge,” a source told the Sunday World.

“He’s hanging all his hopes on this and believes the European Court judgement will see him freed.”

Experts in the Dwyer case found evidence of nearly 5,000 texts sent back and forth between the killer and Elaine O’Hara between January 2008 and the night she was murdered, including 64 on the day she disappeared.

Elaine O'Hara

In the texts, which were crucial to Dwyer’s conviction, he repeatedly referred to a sadistic fantasy he had to stab a woman to death, suggesting various potential victims.

Digital Rights Ireland, a campaign group opposed to the retention of phone and email data, is bringing the case to court, following a successful challenge to an EU directive two years ago.

Speaking this week, Digital Rights Ireland chairman and UCD law lecturer TJ McIntyre said: “We are challenging primarily the obligation to retain this information on the entire population. As part of that challenge we are saying the mechanisms governing access to information are also inadequate.”

Under the current data retention regime, Gardaí can access any records, on any person, without having to explain themselves to a judge. No warrant is required to make a request for metadata from a communications provider – and the result is that tens of thousands of requests are made by the Gardaí each year.

In April 2014, the European Court of Justice (ECJ) found the EU Data Retention directive was in breach of the EU charter of fundamental rights, especially in relation to privacy, and ruled it illegal.

And during his trial Dwyer’s defence barrister Remy Farrell SC argued the ECJ ruling meant that Irish legislation implementing the directive was illegal and that data collected on Dwyer’s phone was also, therefore, illegal.

However, prosecutor Sean Guerin SC argued that the Communications (Retention of Data) Act 2011 – which gave effect to the directive – was a continuation of retention legislation in 2005. Trial judge Anthony Hunt found the State had passed primary legislation, which remained in place and allowed the texts as evidence.

Crucially the texts between Ms O’Hara’s phone and a master phone tied to Dwyer and discovered dumped in the Vartry Reservoir, related to the “unusual sexual practices they engaged in”, which he described as “BDSM”.

“The texts tell the story of that relationship,” prosecution solicitor Sean Guerin told the jury.

“Elaine O’Hara’s sexual preference was for a submissive relationship... for restraint, being tied up, being under control of another” he said.

“Graham Dwyer’s preference was different,” he said, reading a text sent to Ms O’Hara from the number attributed to Mr Dwyer.

“I’m a sadist. I enjoy others’ pain. You should help me inflict pain on you and help me with my fantasies,” wrote the author.

Mr Guerin said that later texts showed that she was resisting the relationship.

Garda hopes that Dwyer’s appeals against the retention of his phone data would fail were bolstered by a Supreme Court ruling last year permitting the use of the phone data, even if the material was deemed to have been obtained unconstitutionally.

The majority court decision introduced a new test providing that evidence taken in “deliberate and conscious” violation of constitutional rights should be excluded except in certain exceptional circumstances.