Supreme Court decision on phone data admissibility may be fatal blow to Graham Dwyer appeal

Graham Dwyer’s protracted bid to overturn his murder conviction may have suffered a significant setback, perhaps even a fatal blow, at the Supreme Court.

In long-running civil proceedings that went to the High Court, Supreme Court and Court of Justice of the European Union, Dwyer had successfully challenged the validity of section six of the 2011 Communications Act which permitted phone metadata to be retained “on a general and indiscriminate basis”. In its April 2022 judgment, the CJEU found Ireland’s data-retention regime breached EU law.

In JC, the Supreme Court held evidence obtained unconstitutionally would be admissible if the prosecution could show the breach was due to inadvertence, not deliberate or conscious, and it set out a test in that regard. The illegality, the court said, arose as a result of a subsequent legal development, the combined effect of the CJEU decision upholding Dwyer’s challenge and the Supreme Court’s declaration that section six of the 2011 Act breached the EU charter.

Dwyer may find a crumb of comfort in the dissenting judgment of Mr Justice Gerard Hogan, who found the 2011 Act breached article eight of the EU charter and the phone data was inadmissible at the Smyth/McAreavey trials.

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