CONVICTED MURDERER GRAHAM Dwyer’s High Court challenge against the Garda Commissioner and the State over the use of mobile phone records during his trial is due to commence tomorrow.
Dwyer was charged in October 2013 with the murder of Elaine O’Hara and was convicted by a jury following a lengthy trial at the Central Criminal Court in March 2015.
In High Court proceedings Dwyer claims certain provisions of the Communications (Retention of Data) Act 2011 breach his rights to privacy under the Constitution, the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union.
The directive underlying the 2011 Act was struck down by the European Court of Justice in 2015. Dwyer’s case, which was commenced shortly after his conviction, is understood to raise important and complex issues of law.
The case, which is expected to last for approximately two weeks, will be heard by Mr Justice Tony O’Connor.
Dwyer will not be present at the hearing.
Cork born Dwyer with an address in Foxrock in South Co Dublin seeks various declarations, if appropriate, damages and, if necessary, a reference of issues to the European Court of Justice.
His action is against the Garda Commissioner, Director of Public prosecutions, Ministers for Justice and Communications, Ireland and the Attorney General, which opposes his claims.
Dwyer claims the ECJ ruling means that Irish legislation implementing the directive was illegal and that data collected on his phone was also therefore invalid.
Many requests for disclosure of mobile phone records were made under the relevant provisions of the 2011 Act by gardai investigating O’Hara’s murder and were granted by the relevant service providers. Phone data was also admitted into evidence during the trial.
During Dwyer’s criminal trial, his lawyers argued the mobile phone data was inadmissible as evidence but those arguments were rejected by the trial judge Mr Justice Tony Hunt.
Following his conviction for the murder of O’Hara, which was committed in August 2012, the architect was jailed for life and his appeal against conviction has yet to be heard.
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