A High Court case by convicted murderer Graham Dwyer against the Garda Commissioner and State over the use of mobile phone records could be heard by a three-judge court.
Dwyer was charged in October 2013 with the murder of Elaine O’Hara in August 2012. He was convicted by a jury following a lengthy trial at the Central Criminal Court in March 2015. He was jailed for life, and his appeal against conviction has yet to be heard.
In High Court proceedings initiated in 2015, 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.
The hearing, fixed for February 20th, was briefly mentioned before Ms Justice Caroline Costello at the High Court on Wednesday.
Seán Guerin SC, for the State defendants, said the case raised a number of important legal issues, and the court may want to consider whether it should be heard by a divisional or three-judge court.
Ms Justice Costello agreed to adjourn the matter to early January, when pre-trial issues between the parties will be addressed.
The hearing of Dwyer’s case is expected to last for several weeks. In his action Dwyer claims the ECJ ruling means Irish legislation implementing the directive was illegal, and that data collected on his phone was also, therefore, invalid.
Phone data
Dwyer, formerly with an address in Foxrock, Co Dublin, seeks, if appropriate, damages and, if necessary, a reference of issues to the European Court of Justice.
Many requests for disclosure of mobile phone records were made under the relevant provisions of the 2011 Act by gardaí investigating Ms 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 trial his lawyers argued the mobile phone data was inadmissible as evidence, but those arguments were rejected by the trial judge.
The High Court proceedings are against the Garda Commissioner, Director of Public Prosecutions, Ministers for Justice and Communications, Ireland and the Attorney General.