Supreme Court refers Graham Dwyer metadata appeal to EU Court of Justice

24 Feb 2020

Image: © Mike Parker/

The Supreme Court will refer the appeal made by Graham Dwyer concerning access to his phone’s metadata to the European Court of Justice.

Ireland’s Supreme Court announced this morning (24 February) that an appeal made by Graham Dwyer regarding the retention and access of his phone’s metadata will now be heard in the Court of Justice of the EU (CJEU).

At a sitting at Waterford courthouse, Chief Justice Frank Clarke said that a definitive ruling in Irish courts could not be given and, because possible answers are tied to EU law, the case must be referred to the CJEU in Luxembourg, which will have seven days to return observations.

According to the Irish Independent, the Supreme Court said that it was upholding the High Court ruling that the data retention system in place and used in the Irish legal system did not meet European standards. While it said that many criminal investigations would be impeded without access to the data as used in the Dwyer case, a lack of independent oversight meant it must be referred to the CJEU.

The observations of the CJEU could have major ramifications for the future serious crime investigations that use mobile phone metadata as evidence. However, the Supreme Court’s observation was that the High Court finding was not retrospective, meaning it cannot be used to overturn Dwyer’s conviction.

A crucial role in the case

Phone data was one of the most significant pieces of evidence in the disappearance of Elaine O’Hara, whose remains were found in the Dublin Mountains in 2013. Dwyer was convicted of her murder in 2015 and given a life sentence.

As part of the case, the 2011 Communications Act allowed Gardaí to obtain phone records and metadata and use it as evidence against Dwyer, who maintains his innocence. The data showed Dwyer and O’Hara were in the same area on the night she disappeared.

The High Court ruled in December 2018 that the 2011 legislation contravened EU law and the European Convention on Human Rights. This was because of a provision in the Act that allowed Gardaí of chief superintendent rank and above to collect user data from mobile network providers.

The Supreme Court ruled with a majority of six to one to refer the case to the CJEU. Meanwhile, Dwyer’s separate appeal regarding his conviction of the murder of O’Hara remains on hold.

Colm Gorey was a senior journalist with Silicon Republic