When Graham Dwyer was convicted of murder in 2015, it was a triumph for Ireland’s police and judicial system.
The architect had committed what prosecutors called “almost the perfect murder” but was caught and sentenced to life in prison thanks to a meticulous investigation. Yet five years later, the sentence risks falling apart over the use of phone data, a twist that could set Dwyer free and also have an impact on data privacy rules across Europe.
A successful and respectable professional in appearance, Dwyer had killed Elaine O’Hara in August 2012 after grooming her for sadomasochistic fantasies that included stabbing women during sex.
He hid her body in a forest in the mountains of Dublin and dumped items that identified and connected her into a warehouse: phones, keys, a store loyalty card, sex toys and bondage accessories.
In August 2013, a dog walker discovered the skeletal remains and fishermen snagged some of the items in the reservoir, which was unusually low after a dry summer.
A police search found two telephones in the mud, from which they extracted texts between a “slave” and a “master” that took them to Dwyer. There were no witnesses or physical evidence, but text messages and phone details about his movements helped secure a conviction.
Dwyer has filed an appeal alleging that the retention and access to his mobile phone data violated EU law.
Ireland’s supreme court referred the appeal to the European court of justice, which is expected to rule in Dwyer’s favor in the coming weeks. The case may be about to cause the Irish state a major legal headache.
The Luxembourg-based ECJ has ruled in recent cases involving Belgium, France and the UK, that governments and service providers do not have broad rights to withhold data on citizens, and legal experts hope that Dwyer’s decision will follow that pattern. “They are not going to change their mind about massive data retention,” said Fred Logue, a leading information lawyer in Dublin.
The court laid out its position on indiscriminate data retention, curtailing the ability of police and intelligence agencies to extract large amounts of data, in a landmark 2014 ruling, a year before Dwyer’s conviction, on a case taken by advocacy group Digital Rights Ireland. Along with the UK and several other EU member states, Ireland, however, ignored the ruling.
“The blame falls squarely on the Irish authorities for disregarding the CJEU ruling,” said Johnny Ryan, a member of the Irish Council for Civil Liberties. “Because the Irish state never updated the law to reflect that ruling, it now faces the possibility that the convictions could be challenged. It is a lesson in what happens when legislators are intransigent. “
The Irish authorities may now have to “face painful consequences,” he said, adding that the fact that the 2014 ruling was based on an Irish case made the subsequent inaction of the state even more unforgivable. “The Irish state did not do the necessary homework and strengthened its data retention law.”
Victory in Luxembourg will not automatically release Dwyer. It would be included in his main appeal, which is pending in Ireland’s court of appeal, and will weigh whether additional evidence, in addition to mobile phone data, justified a conviction.
Dwyer’s victim, O’Hara, was a 36-year-old child care worker with a history of mental health problems. She came under his influence, her family said, because she wanted to be loved.
Dwyer almost got away with the crime. After O’Hara was reported missing, his car was found near his mother’s grave south of Dublin, prompting the assumption that he had committed suicide by jumping off nearby cliffs into the Irish Sea.
The possibility of a killer walking free should not obscure society’s right to data privacy, Logue said. “Difficult cases make a bad law, the means are justified. That is a slippery slope to authoritarianism. In an open society, you have to be able to do your business without being watched. That may mean that in certain cases a crime can’t be solved, but that’s the price you pay for an open society. “
Digsmak is a news publisher with over 12 years of reporting experiance; and have published in many industry leading publications and news sites.