Phone metadata ruling in Dwyer case may be determined within weeks

The State’s appeal against a significant mobile phone metadata ruling in favour of convicted murderer Graham Dwyer may be finally determined by agreement at the Supreme Court within weeks.

Legal sources believe there will be little option outside of having the final orders in the case reflect a High Court and European court data privacy ruling in favour of Dwyer.

Chief Justice Donal O’Donnell, while conducting a case management hearing today, granted the sides application for an adjournment aimed at reaching agreement on final orders in the case without need for any further hearing.

The case was adjourned to May 26th for further case management when the court will be updated on discussions aimed at agreeing those final orders.

Seán Guerin SC, for the State, told the Chief Justice the appeal had heard some days of argument before issues were referred to the European Court of Justice and the European court also heard arguments. It appeared there was no need for further hearing, he said.

Dwyer is now in the seventh year of a life sentence imposed in 2015 for the murder of childcare worker Elaine O’Hara in 2012. Mobile phone data played an important role in securing his conviction.

He won a long-running court battle in Europe last month after the European Court of Justice (CJEU) decided that the Irish 2011 law under which mobile phone metadata was used in his prosecution breaches data privacy requirements of EU law.

Its decision signalled the end of the regime sanctioned by the 2011 Act under which gardaí could directly access mobile phone metadata that phone companies had to retain on an indiscriminate basis for two years.

Separate appeal

Dwyer will be hoping the CJEU decision will assist him in his separate appeal to the Court of Appeal aimed at overturning his 2015 conviction.

Prior to that appeal, he is awaiting the outcome of the State’s separate appeal to the Supreme Court over a 2018 High Court decision allowing Dwyer’s challenge to the 2011 data law.

The High Court ruled the 2011 law breached EU law on data privacy because it allowed for general retention of data without necessary safeguards or independent oversight.

The Supreme Court had referred issues in the data appeal for determination by the CJEU.

Dwyer is then expected to ask the Court of Appeal for a hearing date for his appeal against conviction. Despite the ECJ judgment, many lawyers believe he has a mountain to climb to succeed in that appeal for reasons including that a Supreme Court decision allows unlawfully obtained evidence to be admissible if the court accepts it was obtained in good faith by gardaí.