Convicted murderer Graham Dwyer will find out in October if his action against the State and the Garda Commissioner aimed at having provisions of Ireland's data retention laws struck down has been successful.
The Cork-born architect, who denies killing childcare worker Elaine O’Hara, seeks various declarations and orders for use as part of his appeal against his murder conviction.
Dwyer claims data gathered from his phone under the 2011 Communications (Retention of Data) Act should not have been used at his 2015 trial before the Central Criminal Court. The data, 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 claims, was unconstitutional and breaches his rights under the EU Charter and European Convention on Human Rights, including his right to privacy.
Dwyer argues the 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 the directive was invalid and that position was further strengthened in subsequent rulings by that court in 2016.
He claims the 2011 Act suffers from the same flaws identified by the ECJ.
‘Misconceived’
The State does not accept his arguments and says Dwyer’s application is misconceived and should be dismissed. It also argues Dwyer cannot escape the fact his application to exclude evidence generated by his mobile telephone from the jury at his 2015 trial was rejected by the judge presiding over the trial.
It further argues the laws that allow the authorities to access and utilise retained data, which Dwyer seeks to have struck down, are extremely important in the detection of serious crime.
On Thursday, following the conclusion of submissions by Brian Murray SC for the State and Remy Farell SC for Dwyer, Mr Justice Tony O’Connor said he was reserving judgement in the matter.
Evidence in the case concluded last March but the case was since adjourned from time to time to allow for submissions on recent relevant decisions from the European Court of Justice and European Court of Human Rights concerning issues raised in the case.
The case was also put back to allow the parties provide written replies to questions from the judge.
On Thursday, Mr Murray said recent opinions and adjudications on cases from Spain, the UK, Slovenia, and Sweden strengthened further the State’s case that the declarations sought by Dwyer “should not be granted”. Mr Farrell said the answer to whether those decisions undermined the general thrust of his client’s case was a “resounding no”.
Mr Justice O’Connor said he would give his decision in October when the new legal year commences.