Graham Dwyer begins High Court case to strike down data law, saying it breached his rights

By Ann O'Loughlin

Convicted murderer Graham Dwyer has asked the High Court to strike down a law which allowed data, such as telephone records, to go before the jury during his trial for the murder of Elaine O'Hara.

Dwyer (aged 45) was sentenced to life imprisonment in April 2015 after a jury at the Central Criminal Court found him guilty of Ms O'Hara's murder in 2012 claims the law is unconstitutional and breaches EU laws, including his right to privacy.

He has brought a challenge against provisions of the law that allowed Gardaí investigating Ms O'Hara's death to obtain and use certain data, including phone records, as evidence against him during his lengthy trial.

Cork-born Dwyer, with an address in Foxrock, South Co Dublin, has brought civil proceedings against the Garda Commissioner, Director of Public prosecutions, Minister for Justice and Communications, Ireland and the Attorney General, which oppose the action.

At the opening of the challenge before Mr Justice Tony O'Connor Dwyer's lawyers argue that certain provisions of the Communications (Retention of Data) Act 2011 breach his Constitutional rights, European Convention on Human Rights (ECHR) and rights under the Charter of Fundamental Rights of the European Union to privacy and protection of his personal data.

Dwyer, represented by Remy Farrell SC, bases his claim on decision of the the European Courts of Justice (ECJ) in 2014 to strike down the EU directive underlying the 2011 Act.

The State parties, represented by Brian Murray SC and Sean Guerin SC, reject all of Dwyer's arguments and deny the 2011 Act is incompatible with EU Charter ECHR and the Irish Constitution.

In his action, Dwyer seeks several declarations including that provisions of the 2011 Act are incompatible with EU law and are repugnant to Articles 40.3.1, 40.3.2 and 40.6.1, which include his rights to vindicate his good name, of the Irish Constitution.

He also seeks a declaration that provisions of the 2011 Act are incompatible with the State's obligations under Articles 8, which provides a right to privacy, family life, home and correspondence, and Article 10, which provides a right to freedom of expression and information of the ECHR.

He also wants, if appropriate, damages for a breach of his rights under Article 3 of the ECHR, which prohibits torture and inhuman and degrading treatment, and an order that his legal costs be paid for by the respondents.

If necessary he seeks to have the case referred to the ECJ for determination.

Dwyer was not present at the hearing, and is serving the life sentence he received in April 2015 for Ms O'Hara's murder at the Midlands Prison. The outcome of the action will have an effect on his appeal against his conviction, which has yet to be heard.

Dwyer's action centres around a decision made in 2006 by the EU when it adopted Directive 2006/24/EC on the retention of data.

Opening the case, Mr Farrell said the directive was designed to harmonise the laws of EU member states concerning the retention of certain data on electronic communication services on communication networks, such as mobile phone and internet records.

The directive sought to ensure that all data was available for the prevention, investigation, detection and prosecution of serious crime, such as terrorism and organised crime.

The directive required communication service providers to retain traffic and location data necessary to identify the subscriber or user.

In 2011 the Communications (Retention of Data) Act was enacted by the State.

This, Mr Farrell said, gave effect to the EU Directive, and permitted a Garda not below the rank of Chief Superintendent to request a telecommunications service provider to give the gardaí any retained data believed to be required for the investigation of or prosecution of a serious offence punishable by imprisonment of a period of five years or more.

In 2014 the European Court of Justice found in a case called Digital Rights Ireland Ltd vs The Minister for Communications, Marine and Natural Resources and others that the 2006 EU Directive was invalid.

That court's decision was based on findings including that the directive made it possible to know private, precise, personal information about persons whose data was retained.

The directive interfered in a particular serious manner with the fundamental rights to respect for private life and to the protection of personal data. The fact that data was retained and used without the user being informed was likely to generate a feeling that their private lives were the subject of constant surveillance.

The ECJ found that by adopting the Directive 2006/24 the EU had exceeded the limits of proportionality set down in the Charter of Fundamental Rights of the European Union.

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, and should not have been used at his trial.

During the investigation of Ms O'Hara's murder the Gardaí obtained data under the 2011 Act relating to Dwyer.

Telecommunications service providers gave data to the Gardaí at Blackrock Garda Station who were investigating Ms O'Hara's death following the discovery of her remains at Killakee Mountain in South Dublin in September 2013.

Dwyer claims the decision to arrest him in October 2013 was based to a significant extent on the analysis of data disclosed to the Gardaí under the 2011 Act.

The data analysis concerned the nature of contact between certain phones, including a phone used by Dwyer and two phones attributed to him by the Prosecution, he claims.

The evidence included dates, times, who was contacting whom and if it was a text message, and which networks various contacts were routed through.

The information allowed the prosecution to show the jury that Dwyer's mobile phone was in certain places at certain times, and his location when the calls and texts were made and received.

As the data was included as evidence supporting the prosecution's case against Dwyer his lawyers, citing the ECJ's decision in 2014, applied to the judge presiding over the murder trial, Mr Justice Tony Hunt, to exclude the data and phone analysis evidence.

Over two days at the 2015 trial, Dwyer's lawyers argued the material should be excluded as it breached his rights under the EU Charter.

Mr Justice Hunt dismissed the application and let the evidence go before the jury. He based his ruling on the fact that the relevant provisions of the 2011 Act remained in force and had been subject to any challenge at that time. The procuring of the evidence did not breach Dwyer's rights, the judge also held.

The trial proceeded and the jury found Dwyer guilty on a unanimous verdict.

The case continues.

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