Efforts by Graham Dwyer to reverse his murder conviction may have encountered a significant obstacle, potentially even dealing it a final defeat, at the Supreme Court. The court’s six-to-one refusal on Monday of the arguments set forth in separate but related appeals by Caolán Smyth and Gary McAreavey, stating that phone metadata evidence was not permissible in their trials, could spell trouble for Dwyer.
In their arguments to the Supreme Court, Dwyer’s solicitors made appeals similar, though not equal, to those concerning the permissibility of phone data, in his own separate appeal seeking to nullify his 2015 conviction for the killing of Elaine O’Hara. A ruling regarding Dwyer’s appeal is anticipated within weeks.
In consecutive civil cases that passed via the High Court, the Supreme Court, and the Court of Justice of the European Union, Dwyer had successfully contested the legality of section six of the 2011 Communications (Retention of Data) Act, which allowed for the retention of phone metadata on a “broad and nondiscriminatory basis”. In its April 2022 verdict, the CJEU determined that the Irish data-retention scheme violated EU laws.
The major question in the Smith/McAreavey cases pertained to the conditions under which data acquired in violation of EU charter rights could be used as evidence against a defendant.
Landmark judgments delivered by Justice Maurice Collins established that the test for admissibility of evidence corresponded to the parameters set out by the Supreme Court in the groundbreaking JC case of 2015, which overturned the ‘exclusion’ principle, stating evidence obtained unlawfully was inadmissible. In the JC case, it was ruled that evidence acquired unconstitutionally would be allowed if the prosecution could prove the violation was unintentional, not a wilful act, providing a test in this respect.
The Supreme Court implemented the JC test to determine the reasonable reliance of gardaí on the 2011 Act in the context of the Smyth/McAreavey cases, aiming to identify any determined or intentional breach of the charter. Their conclusion was drawn in favour of the defendants as the violation of charter rights in both incidents was not deemed purposeful or deliberate. The 2011 Act, though not evidently invalid, was applied when the data under query was preserved and utilised in 2017.
The court discovered the illegality was due to subsequent judicial progress, specifically the impact of the CJEU decision supporting Dwyer’s challenge and the Supreme Court’s statement that the 2011 Act contravened the EU charter’s section six. The judicial balancing of fighting rights and concerns could disadvantage Dwyer, as the community’s interest in an effective judicial examination of the Smyth and McAreavey charges held substantial precedence over excluding evidence. Justice Collins suggested that the omission of evidence would tarnish the administration of justice’s reputation.
Data protection and privacy expert, Ronan Lupton, senior counsel, saw limited benefits for Dwyer in Monday’s judgment and stated, “Considering the majority court’s application of the JC test, It doesn’t bode well for Graham Dwyer”. However, Dwyer could gain slight solace from Justice Gerard Hogan’s contrary verdict, which posited the 2011 Act infringement of article eight of the EU charter led to the inadmissibility of phone data in the Smyth/McAreavey proceedings.
Though suppressing criminal activity is a critical public interest, Hogan stated maintenance of the rule of law, the application of EU law, and respect for the charter should also be considered crucial. His criticism echoed the sentiments of the ongoing reckless usage of the 2011 Act as demonstrated by data privacy advocates such as Digital Rights Ireland. They were victorious in a CJEU challenge to the legitimacy of the 2006 European Data Retention Directive, which the 2011 Act aimed to represent.