herald

Friday 13 December 2019

State appeal of Dwyer data ruling 'likely' next month

Murderer Graham Dwyer. Photo: Collins
Murderer Graham Dwyer. Photo: Collins

The State's appeal against a ruling that could help killer Graham Dwyer in his separate appeal against his 2015 conviction for the murder of Elaine O'Hara is likely to begin in the Supreme Court next month.

The State and Dwyer want the appeal - which concerns a key High Court ruling about retention of mobile phone data - to go ahead, but issues have been raised about the potential impact on it of three similar cases before the Court of Justice of the EU (CJEU).

An opinion from the Advocate General of the three-court CJEU about them is due in January.

During a Dwyer appeal management hearing yesterday, Sean Guerin, for the State, said that as the Supreme Court will reserve judgment on Dwyer's appeal, the Advocate General's opinion will be available before the Irish court's judgment is delivered.

Victory

Remy Farrell, for Dwyer, said the Supreme Court may decide to make its own reference to the CJEU on issues arising in this appeal.

The Chief Justice, Mr Justice Frank Clarke, who had indicated the appeal is likely to begin next month, warned that none of the CJEU referrals would lead to a "slam dunk" victory for either side in this appeal.

If the appeal is adjourned pending the Advocate General's opinion, it would delay the outcome, he also noted.

Dwyer's appeal against his murder conviction is on hold pending the Supreme Court judgment on the State's 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 indiscriminate data retention.

As well as being an important ruling in relation to Dwyer's appeal, 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.

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