Graham Dwyer murder conviction appeal to go ahead in December

Dwyer (49) was handed a significant boost in April when the CJEU ruled that the indiscriminate retention of mobile phone data for use in criminal investigations is a breach of EU law
Graham Dwyer murder conviction appeal to go ahead in December

Eoin Reynolds

After an appeals process which began seven years ago, Graham Dwyer - who murdered vulnerable childcare worker Elaine O'Hara - has secured a date to appeal his conviction in December.

On Monday, lawyers for Dwyer (49) told the three-judge Court of Appeal that they will file their submissions this week as they prepare for a two-day hearing during which they will argue his conviction should be quashed following a recent ruling by the Court of Justice of the European Union (CJEU).

Dwyer (49) was handed a significant boost in April when the CJEU ruled that the indiscriminate retention of mobile phone data for use in criminal investigations is a breach of EU law.

Phone data was a crucial part of the evidence against Dwyer as it was used to track his movements and contacts with Ms O'Hara in the lead-up to and aftermath of her disappearance in August 2012.

Brian Gageby BL, for Dwyer, told the court that they have "very nearly" completed their submissions and expect to file them this week.

President of the Court of Appeal Mr Justice George Birmingham set a date of December 1st for the appeal but said that date could change if Dwyer's lawyers do not get their submissions in this week. Dwyer was not in court on Monday, but prisoners can view and listen to the proceedings remotely.

Stabbing

Dwyer, a Cork-born architect with an address at Foxrock in Dublin, was convicted by a jury at the Central Criminal Court in 2015 of the murder of Elaine O'Hara on August 22nd, 2012. His victim had been discharged from a mental health hospital hours earlier.

Dwyer fantasized about stabbing a woman during sex and used Ms O'Hara to fulfil his desires. After murdering her, he disposed of some of her belongings in the Vartry reservoir in Wicklow and tried to make it look like she had taken her own life.

He dumped her body in a forest where it was found in 2013.

Evidence was heard during his trial that he was sexually obsessed with stabbing a woman and had been in an abusive relationship with the vulnerable child-care worker.

Much of the evidence focused on text messages between a "slave" phone used by Ms O'Hara and a "master" phone used by Dwyer and on the movements of those phones.

Dwyer appealed his conviction and argued that the use of mobile phone metadata at his trial was a breach of EU law.

There has been one ruling in a murder trial relating to the use of mobile phone evidence since the CJEU's decision.

Mr Justice Tony Hunt found that the EU court's ruling did not prevent the use of similar mobile phone data in the trial of Wayne Cooney (31) of Glenshane Drive in Tallaght, who was convicted last month of murdering 22-year-old Jordan Davis in Darndale in May 2019.

Mr Justice Hunt said that EU privacy rights do not trump all other considerations and are not a "clove of garlic guaranteed to ward off all domestic vampires".

He said that privacy rights have nothing to do with the investigation of serious crimes and pointed out that nobody has a right to privacy while committing a crime.

Right to privacy

In his action, Dwyer claimed that data gathered from his phone, using the 2011 Communications (Retention of Data) Act, should not have been used at his trial.

The Act allowed gardaí to access mobile phone data from service providers who were obliged to retain all data for two years.

The data that gardaí could access showed incoming and outgoing calls and texts and also what mast a phone pinged off at any time.

The data could therefore be used to show who a mobile phone was in contact with and the approximate location of the phone at certain times.

Dwyer's lawyers argued the 2011 Act was introduced to give effect to a 2006 EU directive concerning the retention and use of data.  The European Court of Justice (ECJ) found in 2014 that the directive was invalid and that position was further strengthened in subsequent rulings by that court in 2016.

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 Irish High Court ruled in Dwyer's favour but the State appealed that decision and the Supreme Court referred the case to the European Court.

In April this year, the CJEU ruled that Ireland's system of retaining metadata and allowing gardaí to access it breached EU law. The decision gave the green light for Dwyer's appeal against his conviction to go ahead.

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