Irish Supreme Court hears appeal for Graham Dwyer murder conviction

Lawyers for Graham Dwyer have told the Supreme Court that his rights were breached through a system of “mass surveillance” involving the retention of mobile phone data which was used to support his conviction for the murder of childcare worker Elaine O’Hara in 2012.

Dwyer was convicted on March 27 2015 after a lengthy high-profile trial.

Data held in the Cork-born architect’s work phone was used in the trial to demonstrate how it placed the device at specific places at particular times and dates.

However, in April 2022, Dwyer won a case in Europe about the mobile data retention practices used in the case against him.

The Court of Justice of the EU ruled that law in the union precludes the general and indiscriminate retention of traffic and location data relating to electronic communication for the purpose of combating serious crime.

Dwyer subsequently launched an appeal in Ireland on numerous grounds, including the admissibility of the mobile phone data evidence.

This was dismissed by the Court of Appeal in March, which found that the admission of the call data was very limited and could not be perceived as arising to a miscarriage of justice in the case – but the matter was further brought to the Supreme Court.

The contents of 2,620 text messages and data retained by mobile phone companies for billing purposes in relation to five phones were used in the trial.

The phones included what was referred to as Dwyer’s work phone, a phone attributed to Ms O’Hara that was left in her apartment, an additional “green phone” that the prosecution sought to attribute to Dwyer, as well as a “master phone” and “slave phone”, which the prosecution said could be attributed to Dwyer and Ms O’Hara respectively.

The user of one of the phones had arranged to meet Ms O’Hara on August 22 2012 with the purpose of taking her up the mountains to be “stabbed and or punished”.

She was last seen alive on that date.

At the Supreme Court in Dublin on Tuesday, Dwyer’s lawyers said call data relating to the work phone could not have been lawfully collected.

Remy Farrell SC said the regime for collecting the information at the time had resulted in the “general and indiscriminatory retention” of mobile phone data which was in contravention of the Charter of Fundamental Rights of the European Union.

Mr Farrell said the prosecution came into possession of substantial amounts of evidence that should not have been gathered and which was in contravention of the charter’s respect for private life and protection of personal data.

He said: “The question is whether the prosecution can be permitted to employ in evidence material that should not have been gathered in the first place.”

He said the main question in the appeal was not about the accessing of the data but what he described as systemic “mass surveillance” through the retention of mobile phone data at the time of the investigation and trial.

He said the extent to which a mobile phone operates, in practical terms, as a “tracking device” by recording where people are, who they talk to and when they do it was almost tantamount to surveillance.

Under the EU’s 2002 ‘ePrivacy Directive’, there are exceptions for specific and targeted retention of data for a range of purposes, but Mr Farrell argued that if the retention of Dwyer’s work phone data had not been general and indiscriminate, it would have been of no use to the prosecution in the case.

Mr Farrell said it was obvious that Irish courts are bound by and are essentially subordinate to the European Court of Justice, meaning there must be a full acceptance of its rulings “in a full-throated way”.

He said EU law is not “some esoteric system of parallel law” as it had appeared to have been treated by the trial judge in Dwyer’s case.

Dwyer’s lawyers also argued that the significance of the data linking the phones was a central and integral part of the prosecution case.

Michael Bowman SC said the phone data was “inextricably interwoven into the tapestry of the case”.

He said the prosecution was able to present a case based upon access to records of Dwyer’s work phone.

He said the defence had used thousands of communications from the call data of the work phone as a “foundation” in its case.

The Director of Public Prosecutions did not dispute that it played a role in the case, but said the part it played was relatively minor.

It put forward that while there was evidence from the parallel movements of the work phone with other mobiles in the case, there was separate evidence that independently verified Dwyer’s movements at key points.

For the State, Sean Guerin SC did not concede that there had been a breach of the charter.

He said the appellant’s case lacked any appreciation for the intricacies or sophistication of EU law.

He said Mr Farrell had sought to undermine an essential distinction between the directive which creates a right to the destruction of data for the protection of privacy, which is effective in Ireland, and the charter right which is not directly effective.

He also said that it was perfectly clear that there were circumstances under the charter by which data could be retained on a person, without a link to criminality.

He said this could be a geographic basis, for example national security purposes on individuals located near Government Buildings.

For the DPP, Anne-Marie Lawlor SC said the call-data records were “not so inescapably integral” to the jury’s verdict.

She said the “key to whole case” was determining the author of the text messages and that there was other “overwhelming evidence” that allowed the jury to conclude it was Dwyer.

The courts have heard that Ms O’Hara had experienced certain mental health difficulties since her teenage years.

Evidence has been given as to what was described as a “very unusual sexual relationship”, which included acts of stabbing perpetrated on Ms O’Hara.

In the weeks before her disappearance, she had been admitted to hospital.

It was the prosecution’s case that with the ending of Ms O’Hara’s hospital admission, Dwyer began to put in place a plan to use her for the purpose of obtaining sexual gratification by stabbing a woman to death.

A decision on the appeal will be made at a later date.