Graham Dwyer’s protracted bid to overturn his murder conviction may have suffered a significant setback, perhaps even a fatal blow, at the Supreme Court.
The court’s six to one rejection on Monday of arguments, in separate but linked appeals by Caolán Smyth and Gary McAreavey, that phone metadata evidence was inadmissible at their trials could herald bad news for Dwyer.
Lawyers for Dwyer made similar, although not identical, arguments to the Supreme Court about the admissibility of phone data, in his separate appeal aimed at overturning his 2015 conviction for the murder of Elaine O’Hara. Judgment on Dwyer’s appeal is expected within weeks.
In long-running civil proceedings that went to the High Court, Supreme Court and Court of Justice of the European Union, Dwyer had successfully challenged the validity of section six of the 2011 Communications (Retention of Data) Act which permitted phone metadata to be retained “on a general and indiscriminate basis”. In its April 2022 judgment, the CJEU found Ireland’s data-retention regime breached EU law.
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A core issue in the Smith/McAreavey cases concerned the circumstances in which data obtained in breach of EU charter rights is admissible in evidence against an accused.
In judgments delivered by Mr Justice Maurice Collins, the majority ruled the test for admissibility was as set out by the Supreme Court in the landmark JC case of 2015 overturning the ‘exclusionary’ rule that unconstitutionally obtained evidence is inadmissible.
In JC, the Supreme Court held evidence obtained unconstitutionally would be admissible if the prosecution could show the breach was due to inadvertence, not deliberate or conscious, and it set out a test in that regard.
The application of the JC test to the Smyth/McAreavey cases involved an “objective assessment” by the Supreme Court of whether it was reasonable for gardaí to rely on the 2011 Act, or whether such reliance involved a deliberate or conscious breach of the charter.
That assessment resulted in the court concluding the breach of charter rights in both cases had not been “deliberate or conscious”. The 2011 Act was law in 2017 when the data in question was retained and accessed and was not so “manifestly invalid” it was unreasonable or not proper for gardaí to rely on it.
The illegality, the court said, arose as a result of a subsequent legal development, the combined effect of the CJEU decision upholding Dwyer’s challenge and the Supreme Court’s declaration that section six of the 2011 Act breached the EU charter.
The court’s balance of competing rights and interests is also potentially adverse to Dwyer. The community’s interest in the effective adjudication of the merits of the cases against Mr Smyth and Mr McAreavey “weighed decisively” in favour of admitting the evidence, Mr Justice Collins said. Excluding it would “bring the administration of justice into disrepute”.
Senior counsel Ronan Lupton, a specialist in data-protection and privacy law, sees few positives for Dwyer in Monday’s judgment. “Considering the majority court’s application of the JC test, It doesn’t bode well for Graham Dwyer,” he said.
Dwyer may find a crumb of comfort in the dissenting judgment of Mr Justice Gerard Hogan, who found the 2011 Act breached article eight of the EU charter and the phone data was inadmissible at the Smyth/McAreavey trials.
Although the suppression of crime is an important public interest, so too was the maintenance of the rule of law and respect for the application of EU law and the charter, he said.
His criticism of the continuing use in 2017 of the 2011 Act as “reckless and grossly negligent” echoes concerns about the Act voiced over years by data privacy campaigners, including Digital Rights Ireland. In 2014, the group won a CJEU challenge to the validity of the 2006 European Data Retention Directive that the 2011 Act was introduced to transpose.
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