State appeal over Graham Dwyer mobile data ruling fixed for December

The State's appeal against an important ruling in favour of convicted murderer Graham Dwyer will be heard in December.

The High Court ruling, given in judicial review proceedings by Dwyer concerning the use of mobile phone data at his trial, forms part of his bid to overturn his conviction for the murder of childcare worker Elaine O’Hara.

His appeal against conviction remains on hold pending the outcome of the separate Supreme Court appeal.

The State is appealing Mr Justice Tony O’Connor’s High Court finding that part of the State’s data retention laws concerning information generated by telephones contravenes EU law and provides for an indiscriminate data retention regime.

As well as being an important ruling in relation to Dwyer’s appeal against conviction, the State says it has major implications in relation to the authorities’ ability to retain, access and use information generated by mobile phones in the investigation of serious criminal activities.

During a case mangement hearing on Tuesday for the appeal, the Chief Justice, Mr Justice Frank Clarke, said it would be heard over three days during the week beginning Monday December 16th.

Pending the outcome, the Chief Justice continued a stay on a High Court declaration in favour of Dwyer.

Brian Murray SC, for the State, said continuation of the stay was necessary to ensure clarity for gardai in relation to accessing phone data in the interim.

The State’s concern was, if the declaration was to take effect, there would be no legal basis for telecoms providers to retain the data and there might possibly be an obligation to destroy it, he said.

While gardai, in a very small proportion of cases, can use a warrant power from the District Court to direct production of information, the State is anxious the stay continues, he said.

Remy Farrell SC, for Dwyer, did not object to the stay.

The Chief Justice, for reasons including there was no objection by Dwyer and he would suffer no prejudice by the stay continuing pending appeal, agreed to continue the stay.

If a stay was refused and the State won its appeal, it was “difficult to predict the difficulties that might cause”, he said.

If the State loses its appeal, Dwyer will have the benefit of the declaration for whatever purpose he chooses, he added. .

Earlier, Mr Murray said the appeal raised very fundamental issues never previously analysed by the courts, including concerning proportionality.

There was an urgency as Dwyer’s appeal against conviction remains suspended, he said. The Court of Justice of the EU will in October consider certain issues of relevance to the appeal, he also noted.

Mr Farrell argued the issues are simpler than the State contends.

Last January, Mr Justice O’Connor granted Dwyer a declaration that Section 6. 1(a) of the Communications (Retention of Data) Act 2011, which allows data generated by mobile phone to be retained and accessed, was inconsistent with Articles 7, 8 and 52.1 of the European Charter of Fundamental Rights. A stay applies on that declaration.

Dwyer, who denies killing Ms O’Hara, claimed data gathered from his phone, under the 2011 Act, should not have been used at his 2015 trial before the Central Criminal Court as that breached his rights, including to privacy, under the Constitution, EU Charter and the European Convention on Human Rights.

Mr Justice O’Connor found sections of the 2011 Act concerning access to retained data contravene EU law and the European Court of Human Rights because there was no prior review by a court of administrative authority.