herald

Sunday 20 October 2019

Supreme Court to rule over Dwyer phone data appeal

Murderer Graham Dwyer
Murderer Graham Dwyer

Three Supreme Court judges will consider next week whether to hear a "leapfrog" appeal by the State against a ruling in favour of convicted murderer Graham Dwyer.

The High Court ruling, given in judicial review proceedings 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.

A leapfrog appeal is one dir- ectly to the Supreme Court and can be heard if the matter raises a point of law of public importance or an appeal is necessary in the interests of justice.

On Monday, Chief Justice Mr Justice Frank Clarke, Mr Justice John MacMenamin and Ms Justice Iseult O'Malley will meet in chambers to consider the State's application.

It is understood Dwyer is not opposing the appeal. The State is appealing against Mr Justice Tony O'Connor's High Court finding that part of the State's data-retention laws concerning information generated by phones contravenes EU law.

As well as being an important ruling in relation to Dwyer's appeal against conviction - a date for which has yet to be fixed - the State says it has major implications in relation to the authorities' ability to retain, access and use information generated by mobile phones.

Last January, Mr Justice O'Connor granted Dwyer a declaration that part of the Communications (Retention of Data) Act 2011, which allows data generated by mobile phone to be retained and accessed, was inconsistent with the European Charter of Fundamental Rights.

Dwyer, who denies killing Ms O'Hara, had claimed that data gathered from his phone should not have been used at his 2015 trial at the Central Criminal Court.

Affair

The data, generated by Dwyer's work phone, placed the device at specific places at particular times and dates.

It was used to link Dwyer to another mobile phone which, the prosecution argued, he had acquired and which he had used to contact Ms O'Hara, with whom he had an affair.

The use of the data, Dwyer claimed, breached his rights, including to privacy, under the Constitution, EU Charter and the European Convention on Human Rights.

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