LAST UPDATE | 16 Jan

LAWYERS FOR GRAHAM Dwyer have told the Supreme Court that the convicted murderer’s rights under the European Charter of Fundamental Rights were breached by the retention of his mobile phone data.

Dwyer’s appeal to overturn his conviction for murdering vulnerable child care worker Elaine O’Hara was heard by the seven-judge Supreme Court today.

Dwyer (51) was convicted of murdering Ms O’Hara by a unanimous jury verdict in March 2015 and sentenced to life in prison.

He appealed his conviction after securing declarations that the retention of mobile phone data is a breach of rights under the European Charter on Fundamental Rights.

His lawyers had argued that the retention of mobile phone data used in the case was an “opportunistic form of mass surveillance” that transforms phones into tracking devices that can reveal a detailed picture of every aspect of a person’s life.

Last March, the Court of Appeal dismissed Dwyer’s conviction appeal on all grounds, including in relation to the admissibility of the call data evidence.

The CoA agreed with the prosecution that there was enough evidence to support the conviction, even if the disputed call data evidence had been excluded, and said the limited call data evidence in controversy was “not very significant” and was properly admitted into evidence.

The CoA also found that there was other evidence to link Dwyer to two phones that formed part of the prosecution case.

There was also evidence to the same effect independent of the call data records that was “as powerful and perhaps more compelling”.

“In summary, we have not been persuaded that any of the issues raised under the theme of “Prejudice in the Trial”, whether in isolation or when considered on a cumulative basis, rendered the trial unfair. For that reason, we reject these grounds of appeal,” the CoA stated in its ruling.

However, following an application by Dwyer’s legal team, the Supreme Court agreed to consider his appeal.

Dwyer was not present in court today.

Opening proceedings this morning, Remy Farrell SC, appearing with Michael Bowman SC for Dwyer, said that it is “absolutely vital” that the Irish courts accept that they are bound by the ruling of the Court of Justice of the European Union (CJEU) on the basis that the domestic courts are European courts. 

He said it was “obvious” that Irish courts are bound by the European Court of Justice, “and in practice that must mean a full acceptance of rulings from that court, even when the domestic courts may have reached a very different ruling.”

He said that EU law is “not some esoteric system”, but argued that it is integral and must be a “vital starting point” when considering the “confected” argument made by the DPP that Dwyer’s rights were not breached under the EU Charter of Fundamental Rights. 

Farrell said that his side would focus almost exclusively on the issue of the retention of the data, and questioned whether that material should have been gathered in the first place and subsequently submitted into evidence. 

He said that the Supreme Court ‘JC’ decision, which states that evidence obtained unconstitutionally can be admissible if there was no deliberate or conscious breach of constitutional rights, cannot be applied to Dwyer’s case due to his rights being breached under the European Charter of Fundamental Rights.

He said the main question in the appeal was not about the accessing of the data, but what he described as “a system of mass surveillance” through the retention of the data.

He said the extent to which a mobile telephone operates in practical terms as a tracking device, showing exactly who someone communicates with and when, is “tantamount” to a tracking device. 

This was questioned by Mr Justice Charleton, who stated that data retention started because telecommunications companies wanted to verify bills.

“It’s nothing to do with surveilling that person,” he said, but rather to do with the verification of the person’s contract.

Michael Bowman SC argued that the State was able to present a case based upon access to Dwyer’s phone data.

He said the phone data was was “inextricably interwoven into the tapestry of the case”.

Bowman said that during the trial, the court heard an observation that Dwyer “rarely goes north of the river”. 

He argued that that observation was only capable of being made by the fact that the State had “the entirety” of his mobile phone data, which were reflective of his movements at that time.

Questioning Bowman’s argument, Ms Justice O’Malley said that one of the “saving features” of the case was that Gardaí had established that the phone belonged to Dwyer, and were satisfied that they could attribute the other phones to him because of the detail in the text messages, such as when his daughter was born.

“Therein lies the difficulty,” Bowman said. “They could have gone to trial on that, but they chose not to.”

When O’Malley suggested that Gardaí did not need the data evidence to arrest Dwyer, Bowman said: “In truth, while that is the case, it is also the case that that evidence was introduced and a decision was made to put that in.”

He said the phone data evidence was “openly embraced and run as part of the evidence”.

Lawyers on behalf of the DPP argued that Dwyer’s rights were not breached under the European charter.

Anne-Marie Lawlor SC told the court that the key to the whole case was “the assessment of who was the author of the texts exchanged, and it was a case that the State found that that was unequivocally Mr Dwyer”. 

“It is our position that the content of those messages allowed the jury to arrive at the determination beyond doubt that the author of those messages was Mr Dwyer,” she said.

She said the assessment that must be engaged in is that whether the evidence in question is integral to the jury’s verdict, adding that there was a “significant and vast amount of evidence” that allowed the jury to conclude who sent the text messages to Ms O’Hara.

The Supreme Court will give its decision at a later date.

Dwyer denies murdering Ms O’Hara.

He also denies buying and using a Nokia phone found in Vartry Reservoir in Co Wicklow in 2013.

His trial was told that the phone was used to send Ms O’Hara messages, including one about stabbing, culminating in a text dated 22 August 2012 – the last day she was seen – to “go down to the shore and wait”.

Timeline

In December 2018, nearly four years after his conviction, Dwyer won his legal action against the Irish State and the Garda Commissioner over the retention and accessing of his mobile phone records.

The data, which was generated by Dwyer’s work phone, placed the phone at a specific place at a particular time. That data was used to link Dwyer to another mobile phone the prosecution says Dwyer acquired and used to contact Ms O’Hara.

The use of the data, Dwyer claimed, was unconstitutional and breached his rights under the EU Charter and the European Convention on Human Rights, including his right to privacy.

The State appealed the High Court decision, and the Supreme Court referred this appeal to the Court of Justice of the European Union (CJEU).

In April 2022, the CJEU ruled in Dwyer’s favour, stating that EU law does not support holding data of electronic communications indiscriminately for the purpose of combating serious crime.

The court found that that Ireland’s Communications Act 2011 is inconsistent with EU law, paving the way for Dwyer to appeal to overturn his conviction.

In December 2022, lawyers for Dwyer told the Court of Appeal that the retention of mobile phone data is an “opportunistic form of mass surveillance” that transforms phones into tracking devices that can reveal a detailed picture of every aspect of a person’s life.

Lawyers for the State argued that there was still “overwhelming” evidence against Dwyer to preserve his conviction and the State was not dependent on mobile phone call data used in his trial.

The Court of Appeal dismissed Dwyer’s appeal in March 2023.

Includes reporting by Eoin Reynolds