Graham Dwyer appeal over murder conviction may be heard this year

Graham Dwyer looks set to get a hearing date later this year for his appeal against his conviction for the murder of childcare worker Elaine O’Hara.

Remy Farrell SC, for Dwyer, told the Court of Appeal on Monday he would have his submissions for the appeal lodged by July 15th next and would be seeking a hearing date for the appeal after that.

Sean Guerin SC, for the DPP, indicated his side would file their submissions 10 days after receiving those from the Dwyer side.

Mr Justice John Edwards said he would list the case in the next court list to fix dates on July 25th when the sides could update the court as to the state of preparation of the appeal.

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The judge said he believed the appeal was unlikely to get a hearing date until sometime in the next court term, beginning early October and concluding on December 21st .

Earlier, Mr Farrell briefly updated the court on what he described as the complex procedural history of the case.

The appeal over the 2015 conviction had been on hold, pending the outcome of an appeal by the State over a key phone metadata ruling by the High Court in Dwyer’s favour.

Mobile phone metadata concerning “Master” and “Slave” phones played an important role in securing his conviction for the 2012 murder of Ms O’Hara.

The High Court in 2018 declared that a provision of the Communications (Retention of Data) Act 2011 breached EU law because it allowed for the retention of data on a general and indiscriminate basis without necessary safeguards or independent oversight.

A stay on that declaration, regarded as having enormous implications for the investigation and prosecution of serious crime here, was imposed pending the outcome of the State’s appeal to the Supreme Court against that decision.

The Supreme Court referred EU law issues in the case to the Court of Justice of the EU (CJEU) and the CJEU gave a judgment in April which effectively endorsed the High Court declaration.

In light of that, there was little surprise in legal circles when the State conceded the appeal last month. The sides agreed the court could make orders dismissing the appeal, lifting the stay on the 2018 High Court declaration and affirming that declaration.

The CJEU decision effectively signalled the end of the regime sanctioned by the 2011 Act under which gardaí could directly access mobile phone metadata that phone companies had to retain on an indiscriminate basis for two years. New laws are being finalised to address the findings of the CJEU and High Court.

Despite the CJEU judgment and the dismissal of the State’s Supreme Court appeal over the High Court declaration, Dwyer’s side will still have to address a Supreme Court decision which allows unlawfully obtained evidence to be admissible if the court accepts it was obtained in good faith by gardaí.