Barrister says Graham Dwyer's victory does not mean he will get out of jail any time soon

The Court of Justice for the European Union (CJEU) published a judgment this morning ruling in favour of the convicted killer in his challenge against Ireland’s data retention laws.

The Luxembourg court said EU law precludes the general and indiscriminate retention of traffic and location data relating to electronic communications for the purposes of combating serious crime.

Ireland’s Supreme Court had intended on making a similar finding, upholding a 2018 High Court ruling in Dwyer’s favour.

The Supreme Court signalled it wanted to limit its ruling so that the finding would not have retrospective effect – which would have potentially stopped Dwyer from using the finding as a ground of appeal.

However, the CJEU said the Supreme Court could not impose “a temporal limitation on the effects of a declaration of invalidity of a national law that provides for such retention."

This means Dwyer will be able to use the High Court and Supreme Court rulings as a ground of appeal against his conviction for the murder of childcare worker Elaine O’Hara in 2012.

However, barrister Ronan Lupton said this is not a “home run for Dwyer”.

“Much turns on what the Supreme Court will do next because that's where the case is going,” Mr Lupton said.

“But in answer to the question is Dwyer getting out immediately? The answer is No. The judicial process in Ireland has to grind away, as it does, nice and slowly, and I don't think anyone is going to be giving themselves whiplash to help Mr Dwyer.

“And the courts have a lot to do in relation to the admissibility criteria which are there for the records that have been obtained.

“The judgment was expected to come out the way it did,” Mr Lupton added.

“The law in relation to data retention was annulled in 2014 in a case called Digital Rights Ireland and Ireland.

“And what that did was effectively set the cat among the pigeons relating to the wholesale mass and indiscriminate recording of phone and internet data which the State brought into law here in 2011.

“Effectively what happens is that, for two years call records are retained for one year, data records are retained, now it’s meta data so there's no personal communication, it's not detailed, but at the same time it means it shouldn't be done.

“The main principle arising from this morning’s finding is that there is no proper, safe, oversight. In other words, wholescale and mass indiscriminate recording should only be done for state security reasons, not for the investigation of crime.

“But the key thing I think in relation to the Dwyer case is what is admissible and what's not.

"So the court in Europhas pointed out that it is a matter for member States to decide the question of admissibility, once the legal principles of equivalence and effectiveness are met.

“But once it can be established that the gardai did not interfere with the collection of evidence in an unlawful or a mischievous way it's probably likely to be admitted.

“Now we know in recent times that call records have been excluded on the basis of the Dwyer kind of logic, however, much will turn on what the Supreme Court says when the case goes back there in the next number of weeks for another hearing and probably a judgment.

“The Supreme Court could deal with this in its entirety and scupper Mr Dwyer but what I think is more likely to happen is that they'll make findings that will inform the court of appeal.

“This is not a home run for Dwyer, by any stretch of the imagination it's just not,” Mr Lupton added.

“In terms of the impact on the gardai doing their jobs on a day to day basis it doesn't leave them with any clearer view of the world. As far as they are concerned they’re still operating on a law that's defunct.

"The State has a job to do just to shore up this problem," Mr Lupton said. (Justice Minister) Helen McEntee put a statement out this morning saying we're going to consider what the Supreme Court does before we start drafting new laws.

"But there was a bill before the Oireachtas in 2017 which sought to amend the current regime under the 2011 act but that bill wasn't met before the Dail went into election mode so it effectively fell apart.

“But there were lots of lawyers and academics before the Oireachtas committee basically saying that the proposal wasn't fitting with the four or five cases that had been handed down from the Court of Justice interpreting what the position should be after 2014.

"But if you went before a court and asked did the gardai do anything nefarious in relation to the collection of the phone records, the answer on its face is no, they didn't.

“They were following the law as they thought the law to be. So it is now a question of what will the courts do?

"The court may have no choice but to say that the records were obtained in curious circumstances but that we're going to allow them in.

"That may visit an injustice on Dwyer, but at the same time, this is a murder, this is not something straightforward.

“And the other thing I think we need to focus on is that not all the evidence was phone evidence. So you have to ask yourself, even if it was set aside, does this unpick the entirety of his conviction? The answer might be no."