Convicted murderer Graham Dwyer has won a significant legal battle
in his attempt to have his conviction for murder of returned.
Europe's top court confirmed this morning that Ireland's system of
retaining and accessing mobile phone metadata breaches EU law.
Such data was a key part of the prosecution's case against wire in 2015
when he was convicted of the murder of Elaine O'Hara in August 2012.
For joining me now is People Before Profit and Solidarity.
TD Mick Barry Green Party TD Neasa Hourigan, Special Correspondent with the Irish
Examiner Mick Clifford and Associate Professor of Law at Trinity College
Dublin Eoin O'Dell. To come to you first Mick, remind us of the key part
that this mobile phone data played in the case and in the prosecution case
against Graham Dwyer for the murder of Elaine O'Hara.
Yeah, I think some of the original evidence that was found was a mobile phone,
and they were able to connect communication between Graham Dwyer and Elaine
O'Hara on a number of locations and track where the phone was, Um so it it
was a large part of the prosecution, but it wasn't the only part of the prosecution,
but it certainly fed into the overall case.
Yeah, there were a lot of details given around text messages and
all of that throughout the course of the trial as well.
It would have.
It would have, as you say, being one of one of the key parts.
I suppose of the case.
Absolutely, as it has been for a number of prosecutions particularly,
um, in some instances, murder prosecutions like this, but
as well to a large extent, organised crime.
A huge amount of prosecutions related to organised crime relies
to a greater or lesser extent on telephonic traffic.
Okay, Eoin O'Dell, take us through this.
This is being seen as a big legal win for Graham Dwyer.
Now that the European Court has confirmed its decision.
It didn't come as a surprise, I think, to many who have been looking at
this case and watching what's happened over the years, how much is weighing
in his favour now that the appeal is due to take place?
Well, it's like, um, it's the end of the first half of the football match and
he's one nil up, and that's that's about as good as it gets for him.
at the moment, there is still the entire second half to go.
That is the Supreme Court decision when it comes back.
And then, um the extent to which he can rely on that to appeal his conviction,
uh, in the court of appeal and then perhaps the Supreme Court again,
and then perhaps even the court of justice again.
So there's a whole other second, half extra time and
maybe even penalties before this is decided.
Now it's interesting listening to Shona Murray there.
When I say, What implications will this have in other European countries?
He said, Well, this has been played out and essentially
has been case law since 2014.
But it's a big deal here today, isn't it?
Because there hasn't been much action since 2014.
Absolutely, there has been, it seems significant
and perhaps even deliberate inaction.
The decision in 2014 was a decision taken by in a case taken by Digital
Rights Ireland against the Irish Data Retention Regime, and the Court
of Justice struck down the underlying directive in 2014.
So we have known since 2014 that there are at least questions
to be asked, Um, we we knew in 2016 when the Court of Justice
reaffirmed it and has reaffirmed it every year since.
So that by the time it got to the Advocate General before Christmas and
the court today, the Advocate General of the court were exasperated.
Oh, no.
Here we are being asked the same questions, and we're giving the same answers again.
Um, so it's been perfectly clear since 2014.
There's a problem.
It's been clear in Ireland at least since 2017, when Mr Justice Murray, the retired
Chief Justice published a report saying that there is a problem.
The government published a bill at that stage which, after
pre legislative scrutiny, has just been gathering dust.
Okay, well, I want to ask you Neasa about that.
Why is this the case we knew about about back in 2014?
It's been back and forth through the courts.
Um, now we've got this European court ruling that was all very expected.
But nothing has been done.
No, and I think it's fair comment, and we need
to move ahead with that legislation now.
I think that what has been useful is to get certainty around what
in what circumstances we can have targeted retention and where you
can have perhaps a freeze on data, um, and the retention.
But I have to say none of those domestic aspects if if and when we do implement them
would really have dealt with the Dwyer case in in the way that we would want.
But I have to say that it's very hard to defend the fact
that we haven't moved forward with that legislation.
And I think it's something that now we need to put pressure.
And I need to put pressure as a backbencher on the government
to move ahead very quickly on Is that a failing?
On behalf of the Department of Justice?
I think what has happened is that we have pushed forward a huge amount
of legislation in the last two years because of the public health pressures
and a whole number of other legislation of issues, and it simply has been
put wrongfully probably on the back burner, ignored.
Yes.
Um, Mick, Barry, what do you take from from all of this?
Clearly it has highlighted the fact that the state has failed to act around this, but
you'd wonder the implications it would have had for court cases over the years.
Since then, Yeah, I think there's two points that I would like to make about this.
Um, first of all, we have to remember the case that we're dealing with here.
The killing of Elaine O' Hara, a brutal killing of a young woman, one of
244 femicide is that we've seen in this state in the last 25 years.
And the idea that there can be any question mark over the conviction
because of the way that this case was handled is it must be extraordinarily
difficult for her family and friends.
I think that's an important point to make.
But in terms of where we are now, I mean, you asked the question, Claire,
their failings on the part of the Department of Justice.
The answer.
That question is, yes.
I mean, for eight years now they have there has been in action, and if
they were taking a gamble that this case was going to break their way,
well, surely that was I'd be interested in hearing Eoin's opinion.
He's a legal expert, but it would seem to me that that was quite reckless.
Very reckless in terms of the cases that have built up since
that time And what might happen with them now?
Yeah, this is the big question about the implications for all cases.
There has been a drop off in the use of this, you know, mobile
phone data retention in the past few years hasn't there.
So there has been some action that investigators aren't using
it as much in cases in order to find prosecutions.
Well, we don't know what other evidence there might have been in some of the cases
that big was talking about where mobile phone data retention was used.
We do know that in the, uh, in the Dwyer case,
there's a lot of other evidence as well.
It was a two month trial.
There was a lot of evidence.
Um, that wasn't just the mobile phone, uh, evidence.
And in the other cases at the moment that are pending, uh, the guards
and the prosecution are relying on other evidence as well.
So, yes, there is now beginning to be a recognition,
but it's It's a very belated recognition.
Um, whether it will make any difference to Graham Dwyer.
I mean, it will make it.
It could make a potential difference to other cases, certainly
where they won't use this mobile phone evidence now.
But whether it will make a difference to Graham Dwyer.
Well, the Supreme Court will have to decide the basis on which the legislation
is incompatible when it comes back to the Supreme Court, and that will
then turn our determine whether the evidence is admissible or inadmissible
in the appeal in the criminal appeal and make.
We've heard from Gardaí on this and who said it is a key part
of fighting crime is to have access to data such as this.
Is this going to be a real problem for them?
It will be a certain problem clear.
I mean, I was attended to for I think it was the first
case where this kind of communication was used.
It was it was the murder trial of Joe Riley back in about 2000 and seven and, well,
I I still clearly remember being in that courtroom for the first two or three days
and saying to myself, the guards very little and this guy at all, and then suddenly
they tracked a mobile phone from Pittsburgh where he claimed to be up to the NOL
where the murder had been committed and back down again.
And I can still recall the feeling inside in the room that day that you realise.
My God, they have this guy.
You know, As far as I was concerned, there is
no way he was going to get off after that.
Now that was the first time I was used.
Was used very successfully.
Would he have been convicted without that?
I don't know.
But it was certainly a central plank of the whole thing.
There have been a number of cases like that since then. As Eoin
says, you know, Okay, perhaps there's other evidence that they
didn't concentrate on much when they had access to this.
But there's no doubt it has been serious dereliction of duty.
I think that has been prioritised over the last eight years and
predicting that this fatal day would come, which puts the guards
in an invidious position one way or the other.