High Court’s praise of gardaí a factor in killer’s appeal hearing

Experts have said that the Court of Appeal will be informed by a 2015 Supreme Court judgment (JC case) in which evidence which was later deemed to have been obtained unconstitutionally can be admitted if the prosecution can show the breach was inadvertent.

Shane Kilcommins, head of the School of Law at the University of Limerick, said that in February 2015, when the trial judge in Dwyer’s murder case deemed the mobile phone data to be admissible, that the relevant legislation, the Communications (Retention of Data) Act 2011, was “good law”.

Prof Kilcommins said Thursday’s ruling by Mr Justice Tony O’Connor — that the 2011 Act breached EU law — allows Dwyer to make the case in his murder appeal that the data should be excluded.

However, he said it “does not automatically follow” that this will lead to the quashing of his conviction for the murder of Elaine O’Hara.

Prof Kilcommins said: “The assessment as to whether evidence was taken in deliberate and conscious violation of rights requires an analysis of the conduct and state of mind not only of the individual who actually gathered the evidence concerned but also of any other senior official or officials within the investigating or enforcement authority.”

He said this latter group could have been involved in decisions around the accessing or put in place policies regarding the gathering of such evidence.

He added: “Such evidence can be admitted where the prosecution establishes that the evidence was obtained in circumstances where any breach of rights was due to inadvertence or derives from subsequent legal developments, which no doubt will be argued by the State in this case.”

While he made declarations regarding Irish law, Mr Justice O’Connor did stress that Dwyer “has not established to this court that the actual operation of the 2011 act from retention in November 2011 to the date of disclosure in October 2013 for telephony data of the 407 number [his mobile] was inappropriate, unnecessary or disproportionate”.

Of relevance to the Court of Appeal in assessing the “conduct and state of mind” of those involved in accessing Dwyer’s data, Mr Justice O’Connor commended the work of Detective Chief Superintendent Peter Kirwan.

Since retired, Det Chief Supt Kirwan was the head of the Garda’s Security and Intelligence Section and in charge of the Garda Telecoms Liaison Unit, who directed requests with mobile phone companies about accessing Dwyer’s data.

Referring to Det Chief Supt Kirwan, Mr Justice O’Connor said: “The painstaking investigation while adhering to the principles of fairness and having regard to privacy rights as then understood was impressive.”

He said that the senior garda officer “exhibited integrity and diligence of a high standard”.

He said the degree to which Det Chief Supt Kirwan went in investigations to avoid releasing intrusive information on others was “commendable” given the limited statutory direction and requirements in that regard.

Mr Justice O’Connor said Detective Chief Superintendent Tony Howard, who had extensive operational experience investigating serious organised crime, had satisfied the Court that retained data had been “critical” in many investigations of serious crime.

He said the “methodical” work of Sarah Skedd, senior crime and policing analyst, demonstrated the “benefit and necessity of her expertise and work”.

He concluded: “There was no hint from DCS Howard, Conor O’Callaghan, Ms Skedd or any other witness, despite thorough examination before this Court, that access to retained data was abused in the case of the Plaintiff [Dwyer].”

In relation to other cases where mobile phone data was used as evidence, Prof Kilcommins said the JC judgement will apply and that each case would be considered individually.