Thursday 17 January 2019

Murderer Dwyer's case over phone records to be heard next February

Murderer Graham Dwyer claims his rights were breached
Murderer Graham Dwyer claims his rights were breached

A High Court action brought by convicted murderer Graham Dwyer against the Garda Commissioner and State over the use of mobile phone records could be heard by a three-judge divisional court.

Dwyer was charged in October 2013 with the murder of Elaine O'Hara and was convicted by a jury in March 2015, following a lengthy trial at the Central Criminal Court.

In his High Court proceedings, commenced in 2015, Dwyer claims certain provisions of the Communications (Retention of Data) Act 2011 breached his rights to privacy under the Constitution, the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union.

The directive underlying the 2011 Act was struck down by the European Court of Justice (ECJ) in 2015.

The matter, which is due to commence on February 20, was briefly mentioned before Ms Justice Caroline Costello at the High Court yesterday.


Sean Guerin SC, for the State defendants, said the case raised a number of important legal issues, and one of the aspects that the High Court may want to consider is that the case be heard by a divisional or three-judge court.

The judge agreed to adjourn the matter to early January, when pre-trial issues between the parties can be addressed.

The hearing of the case is expected to last for several weeks.

In his action, which is opposed by the State, Dwyer claims the ECJ ruling means that Irish legislation implementing the directive was illegal and that data collected from the phone was also therefore invalid.

Many requests for disclosure of mobile phone records were made under the relevant provisions of the 2011 Act by ­gardai investigating Ms O'Hara's ­murder and were granted by the relevant service providers.

Phone data was also admitted into evidence during the trial.

During Dwyer's criminal trial, his lawyers argued the mobile phone data was inadmissible as evidence, but those arguments were rejected by the trial judge.

The High Court proceedings are against Ireland, the Garda Commissioner, Director of Public Prosecutions, Justice and Communications Ministers and the Attorney General.

In his action, Cork-born Dwyer seeks, if appropriate, damages and, if necessary, a reference of issues to the ECJ.

Following his conviction for the murder of Ms O'Hara in August 2012, the married architect was jailed for life. His appeal has yet to be heard.

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