Ronan Daly Jermyn solicitors Ricky Kelly and Katie O’Neill explain what the latest legal development means for Bandon murderer Graham Dwyer

GRAHAM Dwyer’s attempt to have his conviction overturned on the basis of a legal technicality was furthered last Thursday when an advocate general of the Court of Justice of the EU, assigned to Mr Dwyer’s case, submitted his opinion. Unlike judges however, an advocate general has an advisory role only and will not take part in the ultimate decision making process.

Before his conviction in March 2015 for the murder of Elaine O’Hara, Mr Dwyer launched a legal challenge against the Irish legislation which allowed gardaí to retain and access his mobile phone data, which was used in the case against him.

The legislation in question, the Communications (Retention of Data) Act 2011, was introduced pursuant to an EU directive. While that directive was later declared invalid, the Irish 2011 Act remains in force.

The 2011 Act requires mobile phone service providers to store specified mobile phone data in relation to its customers for a period of two years.

The data collected includes the source, the recipient and the time and date of a communication as well as the geographical location of the mobile phones used in the communication. This data may be accessed and disclosed to gardaí on the basis of a disclosure request in circumstances where a chief superintendent garda is of the opinion that it is required for the prevention, detection, investigation or prosecution of a serious offence.

Gardaí, investigating the murder of Elaine O’Hara, accessed the mobile data of Mr Dwyer held by his service provider, under this data retention regime.

Mr Dwyer argues that the data retention regime and the unhampered access of gardaí to the data is inconsistent with EU law and, therefore, that his mobile phone data should not have been used as evidence in his criminal trial. In 2018, the Irish High Court agreed with Mr Dwyer’s argument and declared the data retention regime inconsistent with EU law.

The State appealed this decision to the Supreme Court, which in turn referred questions regarding the data retention regime to the Court of Justice.

Evidence was heard by the Court of Justice of the EU in September of this year. The Irish State argued that retention and use of mobile phone data was essential for the prevention and detection of crime.

The advocate general appointed to Mr Dwyer’s case is Manuel Campos Sánchez-Bordona.

In his opinion, delivered on November 18th 2021, he stated that the general and indiscriminate retention of mobile phone data is only permissible where there is a serious threat to national security and that the retention of mobile phone data for the prosecution of an offence is not justified.

He did not consider the State’s argument persuasive and concluded that any legislation which requires service providers to retain all traffic and location data of users for any purpose, other than the safeguarding of national security, is inconsistent with EU law. Furthermore, he stated that EU law only permits authorities to access such data in circumstances where a prior review has been carried out by a court or independent body– in other words, it is not sufficient for a chief superintendent garda to approve the disclosure.

Notably, the advocate general stated that any decision the Supreme Court makes in relation to the data retention regime must be retrospective, and therefore cover the period of the garda investigation into Mr Dwyer.

The decision of the court is expected prior to March 2022. Once it makes its decision, the matter will be referred back to the Supreme Court to make its decision in relation to Mr Dwyer’s appeal.

• Ricky Kelly leads Ronan Daly Jermyn’s cyber and data protection group and has broad experience advising a clients across a range of sectors. Ronan Daly Jermyn is a top 10 Irish law firm, with a team of more than 250 and offices in Cork, Dublin, Galway and London.