Elaine O’Hara’s family expressed their heartfelt hope that she can finally rest peacefully after the Supreme Court unequivocally declined Graham Dwyer’s appeal, contending his conviction for her murder. It’s been close to 12 years since Elaine was last spotted on the 22nd of August, 2012. Her partial remains were discovered approximately a year later, shifting a missing person’s case to a murder inquiry followed by what the family termed a “gruelling criminal trial.”
Dwyer was found guilty of murdering O’Hara in 2015, but that barely marked the conclusion of the lengthy legal battle. Dwyer then endeavoured to have his conviction overturned, launching civil and criminal litigation in different courts, including the Supreme Court, High Court, EU’s Court of Justice and Court of Appeal. His litigation was effectively put an end to this week when seven Supreme Court judges collectively denied his appeal.
The case built against Dwyer partly hinged on the evidence from text messages and mobile phone traffic and location data, pertaining to five mobile phones, three of which were linked to Dwyer and two to O’Hara. Following his conviction, Dwyer successfully contested the 2011 Act under which the data was kept, in the High Court, which the State unsuccessfully appealed in the Supreme Court and the EU’s Court of Justice, the decision was finally made only in 2022.
In March 2023, Dwyer’s conviction appeal was heard and subsequently rejected by the Court of Appeal, including his claim that the mobile phone data was impermissible. The Supreme Court granted a final appeal on the basis that a conclusive ruling was crucial to public interest regarding the phone data. The final appeal was heard in January, with judgement pending.
Prior to the judgement handed down, the Supreme Court made rulings on substantially similar data matters in two separate appeals in June. The judgement in the Smyth/McAreavey lawsuits, pertaining to the legitimacy of phone traffic and location data, was seen by several data law specialists as a setback to Dwyer’s prospects of success.
Their presumptions were confirmed on Wednesday, as the Supreme Court ruled the evidence from Dwyer’s trial, applying Smyth/McAreavey legal analysis to the phone traffic and location data exhibits, lawful. Dwyer’s argument that indiscriminately retained data was not valid was dismissed, endorsing the position that traffic and location data can be lawfully collected, preserved and accessed under various circumstances for various aims.
The court proffered several justifications for admitting the evidence, including the serious nature of the crime, restricted and intentional access to the data, and the fact that the data was collected while the relevant European Data Retention Directive was still active in the country. Furthermore, the court’s findings undermined Dwyer’s position, as there was corroborative and non-controversial evidence from scores of text messages connecting him to O’Hara, in addition to the disputed phone traffic and location data.
The court found copious and incontrovertible evidence that linked the text messages to Dwyer, which sealed his conviction. Included amongst these messages was a disturbing text sent from a “master” phone, identified as belonging to O’Dwyer, to a “slave” phone, identified as belonging to O’Hara, with the instruction to “go down to the shore and wait”. This text was sent on the last day O’Hara was seen alive, marking the commencement of her family’s tormenting ordeal.