December date set for Graham Dwyer appeal over murder conviction

Graham Dwyer’s appeal against his conviction for the murder of childcare worker Elaine O’Hara has been fixed for early December.

The December 1st hearing date is conditional on Dwyer’s side having their submissions in by later this week, Court of Appeal president George Birmingham said. The appeal is scheduled to last two days.

Dwyer’s appeal was listed before Mr Justice Birmingham on Monday for the purpose of updating the court as to the state of preparation of the appeal.

The appeal over Dwyer’s 2015 conviction had been on hold pending the outcome of an appeal by the State over a key phone metadata ruling by the High Court in Dwyer’s favour.

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Mobile phone metadata concerning ‘Master’ and ‘Slave’ phones played an important role in securing his conviction for the 2012 murder of Ms O’Hara.

The High Court in 2018 declared that a provision of the Communications (Retention of Data) Act 2011 breached EU law because it allowed for the retention of data on a general and indiscriminate basis without necessary safeguards or independent oversight.

A stay on that declaration, regarded as having enormous implications for the investigation and prosecution of serious crime here, was imposed pending the outcome of the State’s appeal to the Supreme Court against that decision.

The Supreme Court referred EU law issues in the case to the Court of Justice of the EU (CJEU), and the CJEU gave a judgment last April that effectively endorsed the High Court declaration.

In light of that, the State conceded its appeal last May. The sides agreed the Supreme Court could make orders dismissing the appeal, lifting the stay on the 2018 High Court declaration and affirming that declaration.

The CJEU decision effectively signalled the end of the regime sanctioned by the 2011 Act under which gardaí could directly access mobile phone metadata that phone companies had to retain on an indiscriminate basis for two years. A new law has been introduced to address the findings of the CJEU and High Court.

Despite the important phone metadata rulings in his favour, Dwyer’s side will still have to address a Supreme Court decision that allows unlawfully obtained evidence to be admissible if the court accepts it was obtained in good faith by gardaí.