BY Aodhan O’Faoláin
THE State is to ask the Supreme Court to hear its appeal against a High Court ruling in favour of Graham Dwyer, which forms part of his bid to overturn his conviction for the murder of childcare worker Elaine O’Hara.
Brian Murray SC for the State told Mr Justice Tony O’Connor it intends to apply to the Supreme Court to hear ‘a leapfrog appeal’ – a fast-track option – of the finding that the Bandon architect is entitled to certainly limited declarations concerning provisions of Ireland’s data retention laws.
It is believed that the appeal of the finding in Dwyer’s favour could be heard by the Supreme Court some time in the next 12 months. The State is appealing last month’s decision by Mr Justice O’Connor that part of Ireland’s retention laws concerning information generated by telephones contravenes EU law.
Ireland’s current data retention laws provide for an indiscriminate retention regime, the Judge said.
As well as being an important ruling in respect to Dwyer’s appeal against his conviction, the State had argued the action also had major implications in relation to the authorities’ ability to retain, access and use information generated by mobile phones in the investigation of serious criminal activities.
At the High Court, Mr Justice O’Connor, after considering submissions from both sides in the case, said he was satisfied to make a single declaration in favour of Dwyer.
Dwyer was entitled to a declaration that the Communications (Retention of Data) Act, which allows data generated by mobile phone to be retained and accessed, was inconsistent with Articles 7, 8 and 52.1 of the European Charter of Fundamental Rights.
The judge said he was also prepared to make a recommendation under the Attorney General Scheme that Dwyer’s legal costs be paid by the State. Dwyer, who denies killing Ms O’Hara, claimed that data gathered from his phone, under the 2011 Act, should not have been used at his 2015 trial. The data, which was generated by Dwyer’s work phone, placed the phone at specific places at particular times and dates. That data was used to link Dwyer to another mobile phone which the prosecution told the jury during his trial that he acquired and used to contact Ms O’Hara, with whom he’d had an affair.