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Killer Graham Dwyer edges closer to overturning murder conviction

Indications suggest the Supreme Court will soon confirm the outcome of his successful challenge to Ireland’s data retention laws

Shane Phelan and Tim Healy

Killer Graham Dwyer’s bid to overturn his conviction has moved a step closer amid indications the Supreme Court will soon confirm the outcome of his successful challenge to Ireland’s data retention laws.

The court heard today it was unlikely there would be a need for further arguments in the case.

The comments by Sean Guerin SC, for the State, came after a ruling by the Court of Justice for the European Union (CJEU) last month that Ireland’s system of retaining and accessing mobile phone metadata breached EU law.

The system was used to obtain phone data which proved crucial to identifying Foxrock architect Dwyer as a suspect in the 2012 disappearance and murder of childcare worker Elaine O’Hara.

Dwyer is set to use the CJEU findings to bolster a separate appeal he is taking against his conviction in the Court of Appeal. He is seeking to challenge the admissibility of the phone data evidence.

However, he much first wait for the Supreme Court to formally uphold a 2018 High Court ruling striking down of the 2011 data retention law.

The Supreme Court has previously indicated it would do so, rejecting an appeal by the State, but wanted the CJEU to clarify certain matters of EU law first.

Now that the CJEU has done this, the Supreme Court is in a position to finalise the matter.

At a case management hearing today, Chief Justice Donal O’Donnell was told the issues had likely been “fully argued” at this stage.

Mr Guerin noted that oral arguments have already been given in both the Supreme Court and the CJEU.

The barrister said the parties would now seek to agree on the terms of appropriate final orders to be made and sought a two-week adjournment to allow this to happen.

Mr Justice O’Donnell noted that any orders would need to be ruled on by the court and adjourned the matter to May 26.

The finalisation of the Supreme Court’s ruling will pave the way for Dwyer’s separate conviction appeal to be heard, possibly as early as this autumn.

The CJEU ruling was significant for Dwyer as not only did it confirm Irish data retention laws were invalid, it also found the Supreme Court could not put a “temporal limitation” on this finding.

In other words, the Supreme Court cannot prevent the finding from having retrospective effect, something which would have cast doubt on Dwyer’s ability to use the High Court decision as a ground of appeal.

The CJEU ruling did not rule out the retention of data entirely for the purposes of combating serious crime but found this could only be done in limited instances.

Mobile phone metadata was of significant assistance to gardaí in linking Foxrock architect Dwyer to the disappearance of Ms O’Hara. Detectives were able to determine track the movement of pre-paid phones used to contact her and found these mirrored those of Dwyer’s work phone as he travelled around the country.

Synced text messages on Ms O’Hara’s laptop revealed their relationship. The data enabled investigators to piece together her final journey.

Detectives also discovered Dwyer’s work phone pinged off masts in Killakee in the Dublin mountains an hour after one of the pre-paid phones texted that he was going to check out the spot for her “punishment”. Ms O’Hara’s remains were found in the forest there a year later.

Although the CJEU decision bolsters Dwyer’s appeal, it does not necessarily mean his conviction will be overturned.

If the Court of Appeal finds that the data evidence should have been excluded from his trial, it will have to weigh up whether there was enough other evidence to prove the case against Dwyer.

There is also the possibility the court may find that the probative value of the evidence outweighed any prejudice to Dwyer.

A further issue is that the Supreme Court has previously ruled, in a case called JC, that evidence obtained in breach of a person’s rights could be admissible if the breach was inadvertent.

Such an argument could be made in the Dwyer case as gardaí used the laws that were in place at the time.

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