February date for Graham Dwyer's court challenge to use of phone data

A HIGH Court action brought by convicted West Cork 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 following a lengthy trial at the Central Criminal Court in March 2015. 

In his High Court proceedings, which were commenced in 2015, Dwyer claims certain provisions of the Communications (Retention of Data) Act 2011 breach 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 20th, was briefly mentioned before Ms Justice Caroline Costello at the High Court last week. 

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

Ms Justice Costello agreed to adjourn the matter to early January when pre-trial issues between the parties can be addressed.  

The hearing of Dwyer’s 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 on his phone was also, therefore, invalid.

Many requests for disclosure of mobile phone records were made under the relevant provisions of the 2011 Act by gardaí 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 that the mobile phone data was inadmissible as evidence, but those arguments were rejected by the trial judge.

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

In his action, Bandon native Dwyer, with an address in Foxrock in Co Dublin 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 against the conviction has yet to be heard.