Graham Dwyer seeks retrial for Elaine O’Hara’s murder over how phone data was allowed into evidence

Killer Graham Dwyer is seeking a retrial because of the manner in which the trial judge in his case decided to allow phone metadata evidence obtained by gardaí to be put before the jury.

The 50-year-old Foxrock architect’s appeal against his 2015 conviction for the murder of childcare worker Elaine O’Hara finally got underway yesterday following his separate and ultimately successful challenge to the law under which his metadata was retained and seized.

The challenge resulted in rulings in Dwyer’s favour by the High Court, Supreme Court and Court of Justice for the European Union (CJEU).

The metadata proved crucial to establishing a link between Dwyer and his victim and also helped detectives to build up a picture of their secret sadomasochist relationship.

The evidence was included in Dwyer’s trial despite opposition from his lawyers.

The Court of Appeal heard Dwyer was no longer arguing for the exclusion of the evidence altogether but believed it should have been the subject to an admissibility test, arising from a Supreme Court case called JC.

Remy Farrell SC, for Dwyer, agreed with the court’s president, Mr Justice George Birmingham, that the “high water mark” of his client’s position was that because he wanted a JC-type test and didn’t get one during the trial, he wanted a retrial. In the JC case, which was ruled upon shortly after Dwyer’s conviction, the Supreme Court found by a narrow majority that evidence obtained unconstitutionally can be admissible, but only if the prosecution can show the breach was inadvertent.

Mr Farrell said his side had to make its case within the existing legal framework.

The barrister told the court that CJEU rulings prior to the seizure of Dwyer’s metadata signalled the “indiscriminate and general retention” regime in Ireland, where mobile providers were obliged to hold on to customer metadata for two years, was impermissible.

This view was reiterated by the CJEU in the challenge brought by Dwyer.

Wearing a navy suit, white shirt and navy tie, and with his greying hair tightly cut, Dwyer looked on attentively as his counsel addressed the court.

His father Sean watched from the public gallery, as did members of the O’Hara family.

Ms O’Hara (36), a vulnerable woman who had been receiving psychiatric care, went missing in August 2012.

Her remains were found 13 months later in a forest at Killakee in the Dublin Mountains.

Using the 2011 Communications Act, gardaí obtained data associated with Dwyer’s work mobile phone and other handsets.

Using cell-site analysis, they were able to pinpoint roughly where Dwyer was at certain points in time based on the movements of his work phone.

This helped investigators establish his routine in the months prior to Ms O’Hara’s disappearance.

Cell-site analysis was also able to link the movements of Dwyer’s work phone to those of a Nokia mobile phone found in the Vartry Reservoir in Co Wicklow in September 2013.

When Dwyer went somewhere, he tended to bring both phones with him, his trial heard. The prosecution case was that this second handset, known as the “master” phone, was used by Dwyer to communicate with Ms O’Hara.

Dwyer is only challenging the seizure of the metadata for his work phone.

He denies using other phones found in the investigation.

Mr Farrell said the retention regime could be characterised as “an opportunistic form of mass surveillance”, where a phone is “transformed into a sophisticated tracking device”.

Mr Farrell said the CJEU had made clear the 2011 Act, which was based on a 2006 EU directive that was later struck down, imposed on mobile providers obligations which were contrary to EU law.

He said Dwyer’s case was “particularly important” as he was not under suspicion when his data was being retained.

“With those records, gardaí built up an intensely detailed picture of everything in Mr Dwyer’s life,” Mr Farrell said.

Mr Farrell said whether one liked the CJEU’s rulings or not, they had to be accepted and EU member states had to “fully internalise the result”.