herald

Tuesday 10 December 2019

Top court to hear appeal against Dwyer data ruling

Murderer Graham Dwyer. Photo: Gary Ashe
Murderer Graham Dwyer. Photo: Gary Ashe

The Supreme Court has agreed to hear a 'leapfrog' appeal by the State against an important ruling in favour of convicted murderer Graham Dwyer.

The High Court ruling, given in judicial review proceedings by Dwyer 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 an appeal to the Supreme Court instead of taking the normal route to the Court of Appeal.

The Supreme Court can hear an appeal directly from a High Court decision if it considers the matter raises a point of law of general public importance or an appeal is necessary in the interests of justice.

In a recently published determination, three Supreme Court judges said the issues raised met those criteria.

Implications

The State, they noted, had said the case raised complex and novel questions of constitutional and EU law with significant implications affecting many others apart from the parties, making a Supreme Court appeal almost inevitable.

Dwyer's lawyers agreed and were not opposing a leapfrog appeal, the judges added.

The State is appealing Mr Justice Tony O'Connor's High Court finding that part of its data retention laws concerning information generated by telephones contravenes EU law and provides for an indiscriminate data retention regime.

As well as being an important ruling in relation to Dwyer's appeal, the State says it has major implications for the authorities' ability to retain, access and use information generated by mobile phones in the investigation of serious criminal activities.

Last January, Mr Justice O'Connor granted Dwyer a declaration that Section 6 1(a) of the Communications (Retention of Data) Act 2011 was inconsistent with Articles 7, 8 and 52.1 of the European Charter of Fundamental Rights.

Noting the intention to appeal, the judge said his ruling should not be used as a reason for retained telephony data to be destroyed.

Dwyer, who denies killing Ms O'Hara, had claimed that data gathered from his phone, under the 2011 Act, should not have been used at his 2015 trial before the Central Criminal Court.

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

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