Mobile phone data retention an "opportunistic form of mass surveillance" claims convicted killer Dwyer

Lawyers for Graham Dwyer, who murdered vulnerable care worker Elaine O'Hara for his sexual gratification, have argued that the retention of mobile phone data is an "opportunistic form of mass surveillance" that transforms phones into tracking devices that can reveal a detailed picture of every aspect of a person's life.

Remy Farrell SC, for Dwyer, told the three-judge Court of Appeal that mobile phone data should not have been admitted as evidence in his client's trial as the retention of that data was a breach of his rights under the European Charter of Fundamental Rights. Mr Farrell said that the Court of Justice of the European Union (CJEU) has said "again and again" that the retention of mobile phone data cannot be done and the Irish courts must now "internalise" what the European court has said.

The court also heard from Michael Bowman SC, also for Dwyer, who said that at one point as evidence was being heard in front of the jury, the trial judge Mr Justice Tony Hunt "looked in a very disapproving manner at the defendant" looked away and then "glared back down at the defendant". Mr Bowman said this was a non-verbal communication that "something has triggered the judge" and that a jury can pick up on non-verbal cues.

Mr Bowman said the jury could also have been "overwhelmed" and "overborne" by nine videos of Dwyer being intimate with different women. The videos were introduced in the trial to show the extent of his interest in bondage, discipline and sado masochism (BDSM) and to challenge his claim that he "wasn't really into" BDSM and that it was more Ms O'Hara's interest. Mr Bowman said that a description of the videos would have achieved the prosecution's aims. Showing the actual videos, he said, had introduced "something toxic into the forensic process of a criminal trial" and could have "overwhelmed the ability of the jury to remain impartial".

Mr Bowman further argued that the trial judge should have discharged the jury where there was no forensic evidence as to how Ms O'Hara died. He said that suicide was "live and large in the case and there is nothing in the case that takes it out."

Dwyer (50), a Cork-born architect with an address at Foxrock in Dublin, was convicted by a jury at the Central Criminal Court in 2015 of the murder of 36-year-old Elaine O'Hara on August 22, 2012. His victim had been discharged from a mental health hospital hours earlier. Dwyer fantasized about stabbing a woman during sex and used Ms O'Hara to fulfil his fantasy. After murdering her he disposed of some of her belongings in the Vartry reservoir in Wicklow and tried to make it look like she had committed suicide. He dumped her body in a forest where it was found in 2013.

Dwyer was led into court today by prison officers and was wearing a dark grey suit, black tie and white shirt. He occasionally put on glasses as he entered notes into a folder he had brought with him.

Much of the evidence at Dwyer's trial focused on text messages between a  "slave" phone used by Ms O'Hara and a "master" phone used by Dwyer and on the movements of those phones.

Mr Farrell said today that he is objecting only to the retention of data in relation to a phone with a number ending in 407 which was referred to as Dwyer's work phone. He said information from that phone was used by the prosecution to attribute the other phones to his client. That evidence, he said, should not have been admitted.

He said that the Communications (Retention of Data) Act 2011 which required mobile phone companies to retain data relating to the use and movement of mobile phones for two years, amounted to "general and indiscriminate" surveillance and did not target people suspected of criminal activity but "everyone who has a mobile phone".

Dwyer, he said, was not under suspicion at the time that his mobile phone data was retained but that information was then used to "build up an intensely detailed picture of every aspect of Mr Dwyer's life." Mr Farrell said that "everything the Court of Justice is talking about" in relation to the dangers of data retention had happened in this case.

Mr Farrell said there may be "considerable misgivings" in the Irish courts about the CJEU's findings and, he said, there may be historical reasons why European Union member states such as Germany and Austria had been to the forefront of asserting data rights. But, he said, "one has to accept the result and then fully internalise the result because all State institutions, particularly the courts, are under a duty of loyal cooperation insofar as the Court of Justice is concerned."

Counsel said that in 2014 gardai had sought and received phone records relating to Dwyer's phone from Oct 7, 2011 to Nov 30, 2012. He said those records covered a period in excess of one year and "every aspect of his life, his work, his home. It literally monitored him when he was at home." Counsel said the "wholly indiscriminate nature of the records" had allowed gardai to "build this very detailed picture of his movements, contacts et cetera over a very extended period."

Mr Farrell said such indiscriminate retention of data was never permissible under the charter on fundamental rights and therefore could never have been done constitutionally.  

He added: "If one was looking at a system of mass surveillance and retention where the content was retained for two years so that gardai could go back and find out exactly what sweet little nothings you had whispered over the phone and to whom, that would give rise to very serious concerns." Mr Farrell said the CJEU had put the retention of data under the 2011 Act in "precisely the same category" as that type of intrusion, adding: "There may be disagreement with that proposition but we are bound by that and it is a very important conclusion that the court has reached."

Mr Farrell said it is not up to EU members states to "decide what their view is" or to balance indiscriminate retention against the right to prosecute crimes. "That ship has sailed," he said. "Like it or not, they [the judges of the CJEU] have decided that this form of indiscriminate retention is simply not permissible. It is highly problematic that the Irish courts persist in questioning the logic underpinning that, where expressed doubts are cast on the logic."

Sean Geurin SC for the prosecution will respond to Dwyer's lawyers on Friday in front of the president of the court, Mr Justice George Birmingham sitting with Ms Justice Isobel Kennedy and Mr Justice John Edwards.