Graham Dwyer’s legal battle aimed at having his murder conviction overturned is now in its eighth year and it may not be over.
Dwyer has the option of seeking a Supreme Court appeal against his 2015 conviction after the Court of Appeal on Friday dismissed all grounds of his appeal. The widespread view among lawyers is that he will pursue that avenue. As one legal source put it: “He might as well, he has nothing to lose.”
There is no automatic right of appeal to the Supreme Court and a panel of judges of that court must first decide whether the case meets the criteria for such an appeal. These require the case to raise a matter of general public importance or that an appeal is necessary in the interests of justice.
The issues in Dwyer’s case, concerning the balancing of data privacy and society’s right to have serious crime investigated and perpetrators brought to account – and the potential implication for other cases – mean the Supreme Court will likely agree to hear an appeal.
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Earlier this week, the Supreme Court addressed issues concerning online privacy rights in a detailed judgment on the appeal by Co Tipperary farmer Patrick Quirke against his conviction for the murder of Bobby Ryan, a DJ known as Mr Moonlight.
The focus of that appeal was on the validity of a warrant used to take possession of and search a computer at Quirke’s home.
The Supreme Court said such an intrusion into a “virtual”, as opposed to a physical, space required specific authorisation by a court, which was not obtained. It has deferred a final decision on Quirke’s appeal pending submissions as to the consequence of its judgment.
Dwyer’s appeal differs in that it does not concern warrants but rather the impact of a High Court declaration granted to him in 2018, upheld last year by the Court of Justice of the European Union, that the 2011 Act under which certain mobile phone traffic and location data was retained and accessed by gardaí investigating Elaine O’Hara’s death, was in breach of EU law.
In its finding that the disputed phone records were properly admitted into evidence at Dwyer’s trial, the Court of Appeal was following its own decision in a separate case concerning the conviction of Caolan Smyth (31), formerly of Cuileann Court, Donore, Co Meath, for the attempted murder of James “Mago” Gately in north Dublin on May 10th, 2017.
Gately, whom the Criminal Assets Bureau alleges is heavily involved with an organised crime group, was shot by the driver of a car that pulled up beside him at a petrol station. Smyth was alleged to be the shooter.
The Supreme Court will next month hear an appeal by Smyth arguing the use of mobile phone data to secure his conviction breached his right to privacy. A related appeal has been brought by a co-accused, Gary McAreavey (55), formerly of Gort Nua, Co Louth, who was convicted of assisting an offender. It was alleged McAreavey purchased petrol for the purpose of destroying the car involved in the incident.
Senior counsel Ronan Lupton, a specialist in data privacy law, said there was “no surprise” that the Court of Appeal had, in its Dwyer judgment, essentially followed its own reasoning in its earlier judgment upholding the Smyth conviction. He expects the Supreme Court will agree to hear an appeal by Dwyer.
The Quirke, Dwyer, Smyth and McAreavey cases all raise important issues concerning the correct balance between the right to privacy, other constitutional rights and ensuring the effective investigation and prosecution of serious crime.
The right to privacy, the Court of Appeal observed in its Dwyer judgment, “is not an unqualified right but is subject to the constitutional rights of others and the requirements of public order, public morality and the common good”. In accessing the disputed call data, there was no deliberate or conscious violation by the gardaí of Dwyer’s rights and the call data evidence was properly admitted, it held.
Because Dwyer’s conviction occurred just before the Supreme Court delivered an important decision, in the DPP v JC case, introducing a new test for determining when unconstitutionally obtained evidence might be excluded, Dwyer argued he was entitled to a retrial so that test might be applied to the call data evidence. The Court of Appeal ruled, for reasons including the extent of the other evidence, the test could only end with one result, the admission of the call data evidence.
With more cases in the pipeline concerning the extent of data privacy rights, a definitive judgment from the Supreme Court on the issues raised by Dwyer and the other appellants in their separate cases could provide welcome clarity.