A SEVEN-judge Supreme Court will give judgment on a later date on the State’s appeal over a key phone data ruling made by the High Court, which could assist Graham Dwyer in seeking to overturn his conviction for the murder of Elaine O’Hara.
The State said the High Court ruling has implications extending well beyond the Dwyer case and means enormous adverse consequences for investigation and prosecution of serious crime.
When its appeal concluded this week, after almost three days, Chief Justice Mr Justice Frank Clarke said the court was reserving its judgment.
The appeal concerns a December 2018 High Court decision in favour of Dwyer’s challenge to the validity of provisions of a data law, under which certain mobile phone call data records were used in evidence at his criminal trial.
The prosecution attributed two mobile phones to Dwyer following a detailed analysis of call records in order to build up a clear picture of his movements between October 2011 and August 2012.
Ms O’Hara’s remains were found in Killakee mountain, south Dublin, in 2013.
Mr Justice Tony O’Connor held that aspects of the Communications (Retention of Data) Act 2011 governing retention and disclosure of mobile phone data contravened EU law, as they permitted indiscriminate retention of data and a data access regime, without prior review by a court or other independent body. Access to retained data must be requested by a Garda Chief Supt and the Garda Commissioner must report annually to the Minister on all disclosure requests.
The 2011 Act was introduced to have Irish law conform with an EU Directive which was later struck down by the Court of Justice of the EU (CJEU).
