Convicted Killer Graham Dwyer’s Appeal Given Boost Following ECJ Advice

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Photograph: Cyril Byrne

Mobile phone data that led to the conviction of Graham Dywer were not in line with European Law, a court has ruled.

The European Court of Justice (ECJ) advisory ruling stated that the retention of mobile phone data is “permitted only in the event of a serious threat to national security” according to Advocate General Manuel Campos Sánchez-Bordona.

Dwyer was convicted in 2015 of murdering childcare worker Elaine O’Hara, with mobile phone data forming the basis of the State’s case against him.

He has launched a case saying that the mobile phone data that was used to convict him should never have been allowed to be heard in his trial.

The case was then referred to the ECJ as Dwyer challenged Irish law saying it allowed the retention of his data contrary to EU law.

The Supreme Court then sought clarity from the ECJ on matters of EU law.

A statement from the ECJ today said: “By permitting, for reasons going beyond those inherent in the protection of national security, the preventive, general and indiscriminate retention of traffic and location data of all subscribers for a period of two years, Irish legislation does not therefore comply with the Directive on privacy and electronic communications.”

The Supreme Court has said that any ruling on data retention should only impact future cases, but the Advocate General rejected this, pointing to case law.

He said: “the referring court cannot apply a provision of national law empowering it to limit the temporal effects of a declaration of illegality.”

The opinion issued today (Thursday) will assist judges to come to a verdict on this appeal.