Garda HQ has instructed senior officers to conduct a trawl of current investigations that could be impacted by the landmark ruling on mobile phone evidence that was used to convict Graham Dwyer.
A directive was circulated across Garda divisions last Friday to compile a list of cases that might be affected following the High Court ruling that the law relied on to access his mobile data was incompatible with EU regulations.
The architect from Foxrock, Dublin, was found guilty in 2015 of the murder of Elaine O’Hara, a childcare worker.
He wants to use the ruling as part of his appeal of conviction which is to be heard next year but there is no guarantee victory in the Court of Appeal will follow.
The more pressing impact may be on other criminal cases that are relying on mobile phone evidence gathered since the EU directive at the heart of Dwyer’s appeal was challenged.
The level of concern this has caused within An Garda Siochana is reflected in last Friday’s decision. The force’s management wants to assemble urgently a list of live cases that rely significantly on mobile phone evidence, and which are either before the courts or the subject of files to the DPP.
“It is a trawl through the cases requested by the legal section of An Garda Siochana,” said a senior source. “The concern is over cases where the phones are the primary evidence.”
The selected cases will be assessed by the DPP, but it remains to be seen what action could follow.
If mobile phone evidence is deemed to be unsafe, cases that have not progressed to the prosecution stage could be sent back to the drawing board, while cases already before the courts could now be challenged.
Regardless of the impact on his appeal, the ruling is an undoubted victory for Dwyer. Although not in court last week, one source at the Midlands Prison revealed that Dwyer was “restrained but clearly thrilled” when he learned he had won the High Court challenge.
Dwyer has devoted most of his waking hours behind bars to building up his privacy case and his appeal of his conviction, according to a prison source. A vegetarian, Dwyer follows a strict fitness regime in prison – and is one of the most avid clients of the prison library.
“You could see he was absolutely delighted with the result – but he wasn’t over the top about it,” the source said.
“Over recent months he has been totally focused on his High Court privacy challenge and his appeal. It is fair to say he has been a model inmate over recent times.”
Dwyer started legal proceedings challenging the use of mobile phone evidence in January 2015, the same month that his trial opened at the Central Criminal Court.
The basis for his action was a European Court of Justice ruling in April 2014, which struck down an EU directive that required mobile phone companies and internet providers to store data for two years. Experts such as TJ McIntyre, assistant law professor at UCD, warned three years ago that unless the Government addressed the problem with new legislation, more prosecutions and convictions would be put at risk. But new legislation aimed at filling the vacuum is still being drafted.
Dwyer’s case centred on the data taken from his work phone in 2013, when he was identified as a suspect for Ms O’Hara’s murder.
The data was used to link him to another phone, which gardai said he acquired to contact Ms O’Hara. But Dwyer argued that the data should never have been taken from his work phone, claiming that it was unconstitutional and breached his human rights. He had always denied that this other phone was his.
The mobile phones were not the only evidence against Dwyer. The case against him pulled together various strands of evidence, including forensic evidence from Ms O’Hara’s apartment.
But the phones were key in helping to identify him as a suspect five weeks after Ms O’Hara’s body was found in the Dublin mountains in September 2013. She had been reported missing by her family a year earlier.
By coincidence, around the time that her body was found, a bag, various items of clothing and a Dunnes Stores loyalty tag that was later identified as Ms O’Hara’s were recovered from a reservoir in Wicklow. Further searches yielded two Nokia phones. One of the Nokias – which detectives believe was used by Ms O’Hara – was in contact with a third phone, an 083 number.
The text messages yielded by these phones, and Ms O’Hara’s laptop and iPhone, became central to the investigation. They revealed Ms O’Hara, a vulnerable woman, was involved in a world of bondage and S&M, that the person she was in contact with fantasised about stabbing during sex and stabbing a sheep and of “doing a woman next”.
Gardai knew that Ms O’Hara used one of the two Nokias recovered from the reservoir. The key question was who owned the second Nokia and the 083 number.
Detectives identified Dwyer from Ms O’Hara’s phone and her laptop. The 083 number was saved onto her iPhone as David, and on her laptop as Graham. Text messages from the 083 number to Elaine referred to a pay cut at work, and coming fifth in a flying competition. Trawls of model aircraft clubs threw up a Graham Dwyer who came fifth in a flying competition, was an architect and had recently had a pay cut.
CCTV footage showed Dwyer entering Ms O’Hara’s apartment block on eight occasions. His semen was found on the mattress. In one of the CCTV images, he had a backpack similar to the one found at the reservoir at Vartry.
Dwyer’s arrest led to further evidence. Computers revealed videos on his laptop of him cutting Ms O’Hara during sex. There were also text messages from her own phone.
Dwyer is now focused on his appeal.
Mr Justice Tony O’Connor ruled that the legislation allowing authorities to retain and access the data did not meet the requirements of the European Court of Justice and the European Court of Human Rights. He said Dwyer was entitled to certain limited declarations concerning provisions of Ireland’s data retention laws in his appeal of conviction.
But it is not a given that Dwyer’s appeal will succeed. The judgment also said he had not established that the actual operation of the 2011 Act in retaining telephone data from the phone was “inappropriate, unnecessary or disproportionate”. There is legal precedent that, in certain circumstances, evidence that may later be found to be unlawful could be admissible if it was gathered in good faith, under the law that operated at that time.
Dwyer’s appeal will centre on a number of forensic, evidential and technical issues These include how gardai obtained evidence from a bin outside his home; the admission of critical telecommunications data; allowing a key witness to give evidence via video-link; the admissibility of key material obtained from Ms O’Hara’s IT device; the impact of allowing video recordings to be viewed by the jury; and post-trial comments by State Pathologist Dr Marie Cassidy.
The appeal is unlikely to be heard and ruled on before mid-2019. The case could be further stalled if the State appeals against last week’s landmark High Court ruling.
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