State says Graham Dwyer’s case is ‘misconceived’

A challenge by convicted murderer Graham Dwyer to Ireland's data retention law is "misconceived" and is "a re-run" of an application dismissed by the judge who presided at his criminal trial, the High Court has heard.

Brian Murray SC, for the State and the Garda Commissioner, argued Dwyer is not entitled to declarations that the 2011 Communications (Data Retention) Act violated his right to privacy.

Under the Act, data from Dwyer’s personal mobile phone was retained and accessed by gardai investigating the death of Elaine O’Hara and was put before the jury by the prosecution at his trial for Ms O’Hara’s murder.

Mr Murray said his side are "defending every aspect" of Dwyer's High Court judicial review and maintain the declarations being sought by him are "inappropriate."

Dwyer had already sought to have the evidence gathered under the 2011 Act deemed inadmissible at his trial in 2015 but the trial judge, Mr Justice Anthony Hunt, refused that application, he said.

The State also considered there was no need to refer issues for determination by the European Court of Justice and the issues raised should be decided by the High Court.

Counsel was continuing his submissions before Mr Justice Tony O’Connor on the eleventh day of Dwyer’s action aimed at having provisions of the 2011 law struck down.

Dwyer, who denies killing Ms O’Hara, claims the provisions breached his privacy rights and data obtained under the Act should not have been used at his trial.

The court has heard 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 the directive was invalid and that position was further strengthened by subsequent rulings of that court in 2016.

Dwyer claims the 2011 Act suffers from the same flaws identified by the ECJ.

The action is expected to conclude later this week.