'Significant' | 

Murderer Graham Dwyer’s bid for freedom to be bolstered by EU court ruling

It could have far-reaching consequences for the investigation of serious crime across the continent.

Graham Dwyer appears at Dun Laoghaire District Court in Dublin charged with the murder of Elaine O’Hara (Niall Carson/PA)

Shane Phelan

Graham Dwyer is awaiting a judgment that could have a significant bearing on his bid to overturn his conviction for the murder of Elaine O’Hara.

The ruling will be delivered on Monday by the Court of Justice for the European Union (CJEU) – and is widely expected to bolster Dwyer’s appeal. It could have far-reaching consequences for the investigation of serious crime across the continent.

Separately, sundayworld.com has learned dozens of online newspaper articles identifying people caught up in the Dwyer case have been delisted by Google.

This followed requests to the internet search engine under an EU privacy law best known as the “right to be forgotten”.

The identity of the requesters has not been disclosed.

Graham Dwyer. Photo: Collins Courts.

More than 90 articles are affected and will no longer show up in searches when certain undisclosed search terms are used. The articles still exist online – but will be harder to find via Google.

Foxrock architect Dwyer is serving a life sentence for the murder of childcare worker Ms O’Hara in 2012. Mobile phone data location evidence was key to identifying him as a suspect.

Senior legal figures have warned many criminal investigations won’t get solved in future due to the stance the CJEU is expected to take.

The killer mounted a successful High Court challenge in 2018 to the Communications (Retention of Data) Act 2011, the law under which his data was retained and seized.

He plans to use this ruling to support a separate appeal against his conviction, in the Court of Appeal.

The law struck down by the High Court required mobile operators to keep data for two years and allowed gardaí access it on the request of a chief superintendent.

However, Mr Justice Tony O’Connor found the Irish data-retention regime breached EU law because it was general and indiscriminate, and lacked independent oversight from a judge. The State appealed his ruling to the Supreme Court, which referred a number of significant questions to the CJEU.

An indication of the likely findings of the Luxembourg court was given last November when advocate general Manuel Campos Sánchez-Bordona, a legal adviser to the court, published an opinion.

The opinion confirmed the court’s case law that general and indiscriminate retention of electronic communications traffic and location data is permitted only where there is “a serious threat to national security” that is shown to be genuine and present or foreseeable.

This would appear to rule out its use in murder cases.

If the CJEU agrees with this opinion – and the European court usually does – it would pave the way for Dwyer’s lawyers to argue in the Court of Appeal that evidence from the retained data should not have been entered in evidence.

The matter is already having implications for investigations.

The 2011 Act was brought in as the result of a 2006 EU directive, which was a response to 9/11 and other terrorist attacks.

That directive was later struck down by the CJEU in 2014 following a case led by privacy campaign group Digital Rights Ireland.

But the 2011 Act it was based on continued in use until Dwyer’s successful High Court challenge.

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