Graham Dwyer challenges data-retention law in High Court action

This report is a localnews.ie summary based on public court reporting and records; sources are listed below.

Graham Dwyer’s High Court action challenged provisions of Ireland’s data-retention law after phone data was admitted at his murder trial. The proceedings were reported on 13 March 2018.

Dwyer was convicted of the murder of Elaine O’Hara. He denies killing her. At his 2015 criminal trial, his lawyers applied to exclude retained phone data following a European Court of Justice ruling, but trial judge Mr Justice Tony Hunt allowed the evidence before the jury.

In the separate High Court action against the State and the Garda Commissioner, Dwyer claimed the 2011 Communications (Retention of Data) Act breached his privacy rights and that data obtained under it should not have been used at his trial. He argued that the Act had the same flaws identified when the European Court of Justice held the underlying 2006 data-retention directive invalid, and that subsequent rulings in 2016 strengthened his case.

Brian Murray SC, for the State and the Garda Commissioner, said gardaí investigating Ms O’Hara’s death had retained and accessed data from Dwyer’s personal mobile phone under the 2011 Act. The State maintained that the trial judge’s ruling meant the retention and use of the data was lawful and was a finding Dwyer could not escape.

In submissions on 13 March 2018, Mr Murray said the European Court of Justice had given no evidence about how alternatives to a general data-retention system would work. He said its 2016 rulings did not refer to jurisdictions where less invasive alternatives had been attempted or tested.

Submissions were expected to conclude later that week, after which Mr Justice Tony O’Connor was expected to reserve judgment.