The Supreme Court will soon make final orders dismissing the State’s appeal against a significant mobile phone metadata ruling in favour of convicted murderer Graham Dwyer.
The orders, on consent between the parties, include setting aside a stay of the order of the High Court, which was continued in the Supreme Court. The court was also asked to affirm the High Court’s declaration that a section of Ireland’s data 2011 retention laws breached EU law on data privacy.
In a case management hearing on Thursday, Chief Justice Donal O’Donnell was told the parties had agreed that further hearing was not necessary in the appeal, which has already been argued in the Supreme Court and later, when issues were referred, in the European Court of Justice (ECJ).
Remy Farrell SC, for Dwyer, said the affirmation of a High Court declaration expressly relates to the regime of data access by gardaí, under section 6 of the 2011 Act, as distinct from the system of data retention.
This was on the basis that his team were going to be able to “at least argue” grounds relating to both retention and access of data in appealing Dwyer’s criminal conviction for the 2012 murder of childcare worker Elaine O’Hara.
He is serving a life sentence imposed on him in 2015.
Seán Guerin SC, representing the State, said his side could not object to final orders being made in light of last month’s ECJ ruling, which upheld Dwyer’s challenge to the legality of the metadata regime sanctioned by the 2011 law. He said the State was consenting to the orders.
Mr Justice O’Donnell said he would consult with the five members of the Supreme Court who heard Dwyer’s appeal. In all likelihood those judges will make the orders on consent, he said.
Mobile phone metadata played a central role in securing Dwyer’s 2015 conviction for the murder of Ms O’Hara in 2012.
Finalisation of this long-running legal battle expands Dwyer’s options in his separate appeal to the Court of Appeal aimed at quashing his murder conviction.