“We hope that Elaine can now, at last, rest in peace” was the poignant response of Elaine O’Hara’s family to the Supreme Court’s trenchant rejection of Graham Dwyer’s appeal against his conviction for her murder.
Almost 12 years have passed since the family lost Elaine, who was last seen on August 22nd, 2012. When her partial remains were found about a year later, a missing persons case turned into a murder investigation followed by what the family described as a “long, arduous criminal trial”.
Although Dwyer was convicted in 2015 of O’Hara’s murder, that was far from the end of the legal saga. Over the next nine years, Dwyer fought to overturn his conviction, via civil and criminal proceedings, in the High Court, Supreme Court, the Court of Justice of the European Union and the Court of Appeal.
This week, seven Supreme Court judges unanimously brought what many lawyers regard as finality to Dwyer’s litigation when they dismissed his conviction appeal.
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The prosecution case against Dwyer relied, in part, on evidence of text messages and traffic and location data related to five mobile phones, three attributed to Dwyer and two to O’Hara.
After his conviction, Dwyer successfully challenged, in the High Court, the 2011 Act under which the traffic and location date was retained. That High Court decision was unsuccessfully appealed by the State to the Supreme Court and the Court of Justice of the EU in proceedings only finally determined in 2022.
Dwyer’s appeal against conviction was then heard by the Court of Appeal but, in March 2023, it dismissed all grounds of appeal, including his argument that the phone traffic and location data was inadmissible.
He secured a further appeal to the Supreme Court because it considered a final determination of the phone data issues of general public importance. The appeal was heard last January and judgment was reserved.
Before that judgment was given, the Supreme Court ruled last June on “materially identical” data issues in two other appeals.
Its findings in the Smyth/McAreavey cases concerning admissibility of phone traffic and location data were regarded by many data law experts as having delivered a blow to Dwyer’s chances of success.
That prediction proved accurate on Wednesday when the Supreme Court, having applied the Smyth/McAreavey analysis to the admissibility of the phone traffic and location data at Dwyer’s trial, ruled the evidence was admissible.
Rejecting Dwyer’s claim the data was inadmissible because it was retained on a general and indiscriminate basis, the court ruled traffic and location data may be lawfully gathered, retained and accessed in various circumstances and for various purposes.
Other factors in favour of the evidence being admitted included the gravity of the crime in this case, the limited and targeted nature of access to the data and the fact it was gathered when the relevant European Data Retention Directive was still law here, the court said.
In a further blow to Dwyer, the court found that, apart from the disputed phone traffic and location data, there was “substantial”, “unchallenged and uncontradicted” evidence from hundreds of text messages linking him to O’Hara.
[ Graham Dwyer loses final appeal against conviction for murder of Elaine O’HaraOpens in new window ]
There was “overwhelming and unanswerable” evidence for the jury to attribute text messages to Dwyer and, having done so, to convict him, it said.
Those messages included a chilling text from August 22nd, 2012, sent from a “master” phone, attributed to O’Dwyer, to a “slave” phone, attributed to O’Hara, to “go down to the shore and wait”.
That was the last day she was seen alive, and the first day of the her family’s agonising ordeal.
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