A Supreme Court judge said a recent ruling on mobile-phone evidence required the court to dismiss Graham Dwyer’s appeal against his murder conviction.
In a judgment delivered on 31 July 2024, Gerard Hogan J. said he would follow the Supreme Court’s decision in The People (Director of Public Prosecutions) v. Smyth, [2024] IESC 23. Although he had dissented in Smyth, he said its majority decision was binding on the issue before the court.
The appeal concerned mobile-phone evidence used at Dwyer’s trial in the Central Criminal Court. The prosecution relied on text messages attributed to exchanges between Dwyer and Elaine O’Hara, as well as traffic and location data relating to the phones. Hogan J. described the evidence as having been accessed in breach of Article 8 of the EU Charter of Fundamental Rights.
In Smyth, the Supreme Court had held that telephone metadata obtained in breach of Article 8 was nevertheless admissible under the principles governing evidence obtained in breach of constitutional rights. Hogan J. said the same result followed in Dwyer’s case. He noted that the disputed phone material had been accessed in 2013, before the Court of Justice of the European Union’s April 2014 ruling in Digital Rights Ireland.
Hogan J. acknowledged that he had previously considered the domestic data-retention regime legally vulnerable and had concluded in his Smyth dissent that the evidence in that case should have been excluded. But he said the doctrine of precedent required him to accept the majority’s decision, which he considered to have been fully argued and decided by a seven-judge court.
The judgment is a concurring opinion on the admissibility issue. Hogan J. said that conclusion was sufficient to dispose of the appeal and that he did not need to address other arguments, including the possible application of a proviso under the Criminal Justice Act 1993. He joined Collins J.’s judgment and would dismiss the appeal. The source excerpt does not set out Collins J.’s full reasoning or the court’s separate formal order.