Senior gardaí remain sceptical that Graham Dwyer will be successful in having his conviction for the murder of childcare worker Elaine O'Hara set aside, even though the way evidence was gathered against him almost certainly contravened EU law.
However, Garda officers are very concerned about the impact of an adverse decision by the European Court of Justice (ECJ) regarding Ireland’s mobile phone data retention regime on the force’s ability to investigate future criminal cases.
The concern has arisen in the wake of the news that an advocate general, a senior judicial adviser to the ECJ, had confirmed its case law that general and indiscriminate retention of mobile phone data of the sort used in the Dwyer case is only allowed when there is “a serious threat to national security”.
The ECJ has been asked to rule on the legality of the way retained data was accessed by gardaí investigating Dwyer and also on similar issues by French and German courts. The three cases are all being considered together.
While the ECJ has not yet issued its ruling, legal sources in Ireland said it was likely that ruling would be in line with the advocate general's advice that emerged on Thursday. That advice specifically stated Irish legislation "does not... comply with the directive on privacy and electronic communications".
Garda sources said many forms of criminal investigation were now heavily reliant on accessing mobile phone data. If that “default” mode of inquiry was lost or compromised on a permanent basis, as now appears inevitable, the future investigation of crime would become much harder.
One legal source said the ECJ was very likely to rule in line with the advice that emerged on Thursday. He added this would have a “nuclear” impact on the way the Garda investigated crime as the force had become highly dependent on phone data.
Senior Garda officers now believe a more restricted right of access to mobile phone data, stretching back up to 12 months, would probably emerge for criminal investigators in Ireland as a Bill was already being prepared on that basis.
However, both Garda sources and legal sources said it was far from certain Dwyer would now have his conviction set aside over the legal problems with the mobile phone data retention. Several of the sources believed he would not have his conviction set aside, as mobile phone data was not the only evidence against Dwyer.
They added even though the manner in which retained data was used against Dwyer could not be repeated in the future, as the ECJ was almost certain to confirm it contravened EU law, that did not mean the automatic collapse of the Dwyer conviction.
One legal source pointed to the Supreme Court’s 2015 landmark JC judgment, which overturned the long-standing rule providing for the absolute exclusion of improperly obtained evidence unless there were “extraordinary excusing circumstances”.
The JC ruling means evidence obtained unconstitutionally can be admitted if a court accepts gardaí and other officers of the State had no knowledge of the breach. Effectively, if evidence - which is later ruled constitutional - was gathered in good faith at the time of the investigation, it can stand in historical cases.
Legal sources said Dwyer’s lawyers would make a “respectable argument” that the manner the mobile phone data used against him was gathered was now so undermined it made his conviction unsafe. However, the State was highly likely to fall back on the JC ruling to rebut that approach.
