The Long Legal Battle: Analysis of DPP v Dwyer [2024] IESC 39

Introduction:

Rarely is it the case that a legal challenge will address so many complex and significant issues, garner considerable media attention, and be concerned with a crime of the most serious order. Graham Dwyer’s legal battle breaks this convention. In a 12-year-long-long challenge, Dwyer’s lawyering charge was brought to a halt on 31 July 2024 by the Supreme Court in DPP v Dwyer [2024] IESC 39. This case note will examine the unanimous decision delivered by Collins J with Hogan J issuing a separate concurring judgment. Dwyer provides important commentary on the admissibility of traffic and location data evidence from a mobile phone, as well as guidance on the application of statutory criminal procedure in the context of quashing a conviction on the grounds of a miscarriage of justice.  

Background:

In a long and high-profile trial in the Central Criminal Court before Hunt J in March 2015, Dwyer was sentenced to life imprisonment for the murder of Elaine O’Hara in August 2012.1 At trial the DPP relied, in part, on evidence of traffic and location data relating to five mobile phones connected to Dwyer; including his work phone, which was the central phone relevant to the appeal. Traffic and location data ‘essentially pinpoints the geographical location of both the sender and receiver of these telephone messages and calls.’2 
 

Retention and access of this data was obtained by the Gardaí on foot of s 3 of the Communications (Retention of Data) Act 2011, which had given effect to the Data Retention Directive of 2006.3 However, in the momentous case of Digital Rights Ireland in 2014 – a year before Dwyer’s trial – the Data Retention Directive was found to be invalid by the CJEU since it was a violation of the rights to privacy and protection of data in Articles 7 and 9 of the Charter of Fundamental Rights.4 Notwithstanding this, the Central Criminal Court rejected the argument that the data should be inadmissible, and Hunt J exercised his discretion to admit this evidence.5 And so, the evidence was let in. This gave rise to the beginning of the long legal challenge. 

The Charge:

Dwyer commenced two actions: plenary proceedings and a criminal appeal against his conviction. On the civil front, Dwyer issued proceedings, inter alia, seeking declarations to the effect that the provisions of the 2011 Act were invalid.6 In the case of Dwyer v Commissioner of An Garda Siochana O’Connor J in the High Court held that section 6(1) of the 2011 Act ‘contravene[d] EU law’, and made a declaration that section 6(1)(a) of the Act was inconsistent with EU law, insofar as it relates to data ‘retained on a general and indiscriminate basis’.7 The Supreme Court granted leave for a direct appeal from the High Court and heard arguments from both parties. Thereafter, the Court made a preliminary reference pursuant to Art 267 TFEU to refer several questions to the CJEU concerning the validity of section 6(1)(a), the possibility of limiting the temporal effects of any decision striking that section down, and the admissibility of data accessed under it.8  

The CJEU in GD v Commissioner of an Garda Síochána ruled that EU Law precludes national regimes from drafting legislation which, for the purpose of fighting crime, provides for the ‘general and indiscriminate’ retention of traffic and location data. Rather, what EU law requires, according to GD, is a more ‘targeted regime for the purpose of safeguarding national security’, combating serious crime, and preventing serious threats to public security, insofar as those measures are subject to safeguards.9 The CJEU went on to hold that EU law prevents a national court from limiting the temporal effects of a declaration of invalidity, and that questions of admissibility of evidence are a matter for national level. 

Following the CJEU judgment, the Supreme Court dismissed the appeal from the decision of the High Court and affirmed the declaration made by O’Connor J;10 ie, that section 6(1)(a) of the 2011 Act was inconsistent with EU law. Shortly following suit, the Oireachtas passed the Communications (Retention of Data) (Amendment) Act 2022 in order to fill the gap created by the invalidity of s 6(1)(a) 

Now armed with a declaration of the invalidity of s 6(1)(a), Dwyer’s appeal against his conviction was underway- and which had been postponed awaiting the outcome of his declaratory proceedings. The appeal came to a hearing before Birmingham P and Edwards & Kennedy JJ in the Court of Appeal. On 24 March 2023 they gave judgement; all grounds of appeal were dismissed. The Court was of the view that the impugned traffic and location evidence was ‘not very significant at all’,11 having regard to the totality of the evidence, and the Gardaí could not be faulted for the manner in which they conducted their investigation.12 Having regard to this, and the proviso under s 3(1) of the Criminal Procedure Act 1993 which empowers the court to uphold a conviction where there is no injustice in doing so, the Court of Appeal dismissed Dwyer’s appeal. The Supreme Court granted leave to appeal because Dwyer’s case presented ‘significant issues of general public importance’ as to the admissibility of traffic and location data evidence retained and accessed under the 2011 Act in light of the CJEU’s decision in GD.13 The Supreme Court gave judgment on 31 July 2024.  

The Battle:

Two issues, which leave was granted for, were dealt with by the Supreme Court: (1) whether the Trial Judge had erred in admitting the impugned traffic and location data into evidence, and, if so (2) whether the Court of Appeal erred in concluding, even if the evidence was inadmissible, Dwyer’s conviction should nonetheless be affirmed pursuant to proviso contained in s 3(1) of the 1993 Act on the basis that ‘no miscarriage of justice [had] actually occurred’. Taken together, issues (1) and (2) represent the admissibility and the proviso issue respectively, and one of the key issues was the correct test to be used to determine the admissibility of traffic and location data.14 Both issues will be dealt with separately.  

(1). The Admissibility Issue: 

On the admissibility front, what first had to be determined was whether there was a breach of Dwyer’s Charter rights and, if so, what then was the test to be used when evidence is obtained in breach of a Charter right. Much to the benefit of the Court, it had also heard two appeals in the month of June 2024 which presented ‘materially similar issues’.15 In the cases of DPP v Smyth and DPP v McAvery, the Supreme Court held that the disputed traffic and location data retained under the 2011 Act in those cases had been correctly admitted in evidence by the Special Criminal Court.16 There, and binding on Dwyer’s appeal, it was found that the retention of the controversial traffic and location data, having regard to the invalidity of the 2011 Act CJEU decision, was a breach of the Charter.17 Since this evidence was accessed and retained in breach of the Charter, the Court held the test of admissibility is the one laid out in DPP v JC.18 The JC test is used for where evidence is obtained in breach of constitutional rights, and in Dwyer, Collins J held that, having regard to Ireland’s obligation to give full effect to EU law along with the principles of equivalence and effectiveness, the correct test to be used where there is a breach of Charter rights is also JC. Hence, for the purposes of the admissibility of evidence, constitutional and Charter rights are placed on the same level through the principle of equivalence and the use of the JC test. 

This is fundamentally different from the Court of Appeal’s decision which used a different test: that of the People (AG) v O’Brien from 1965.19 The Court of Appeal held that the telephony data was obtained in breach of a Directive, which is read in light of the Charter.20 On this reading, the Court of Appeal concluded that there was no direct breach of the Charter itself; rather, it was obtained illegally and hence the O’Brien test was used. However, the Supreme Court found that there was a breach of the Charter and stated that the O’Brien is a ‘less exacting test’ than JC and that it would be a breach of Ireland’s EU obligations to use such a test.21 Yet, even on the stricter JC test, the traffic and location data was held to be admissible in Smyth and McAvery - and subsequently in Dwyer. What turned here, forming part of the ratio of Dwyer, is that the access and retention of the data in violation of the Charter was not a ‘deliberate and conscious’ breach in the sense used in JC.22 Instead of intentionally gathering this data in breach of the Charter, the Court was of opinion that, having regard to the JC test, any impropriety of obtaining the evidence can be described as being a result of a ‘subsequent legal development’.23 This development, which was the combined effect of the CJEU’s judgment in GD and the invalidity of s 6(1)(a) of the 2011 Act, meant that in the circumstances, there was no impropriety with the access and retention of the impugned data. In other words, the Gardaí, at the time of conducting their investigation after Elaine O’Hara’s death, were entitled to rely on the 2011 Act. The impropriety arose only due to the subsequent declaration of invalidity and therefore, the traffic and location data was admissible under JC. 

Collins J went on to note that the JC exclusionary rule is not absolute and even if ‘evidence has been obtained in circumstances of unconstitutionality (or in breach of the Charter)’, it does not have to be excluded.24 The determination of admissibility ‘engages compelling interests above and beyond the interests of the accused’, and an absolute exclusionary rule ‘exacts too high a price in terms of the adverse impact on the administration of criminal justice.’25 

Moreover, Collins J stated that the CJEU in GD declared straightforwardly that the admissibility of the disputed data ‘is a matter of Irish law, subject to the principles of effectiveness and equivalence.’26 Because of the reasons decided in Smyth and McAvery, Collins J held, forming the ratio, that the question of admissibility is governed by JC, and therefore, ‘the application of the JC test here leads to the conclusion that the evidence was admissible, notwithstanding that it was obtained in breach of the Charter.’27  

Hogan J delivered a short concurring judgment. He did not make any points on the substantive matters, rather, he considered that the question of Dwyer’s appeal had essentially already been determined by Smyth and McAreavey, in which he had dissented.28 Notwithstanding his previous dissents, Hogan J deferred in Dwyer to the majority in Smyth,29 citing the commentary by Henchy J in Mogul of Ireland Ltd v Tipperary (NR) County Council, that a decision of the full Supreme Court ‘given in a fully argued case on a consideration of all the relevant materials, should not normally be overruled merely because a later Court inclines to a different conclusion.’30 Hogan J opined that it would be ‘importunate’ of him here to insist on adhering to his dissent in Smyth, and therefore, he treated the majority decision in Smyth as binding, and he followed it, ‘if only for reasons of stare decisis’.31 

(2). The Proviso: 

The proviso is represented through s 3(1) of the Criminal Procedure Act 1993 which states that an appellate court in hearing an appeal against a conviction can affirm that conviction, notwithstanding that there may be a point raised in the appeal that might be decided in favour of the appellant, if the court consider that no miscarriage of justice has actually occurred. Collins J delivered a comprehensive examination of the proviso and concluded that it is only engaged where there is actually an error in the course of the trial giving rise to an appeal that might be decided in the appellant’s favour.32 However, not every error ‘will warrant the quashing of the conviction’ and the ‘sole statutory test’ to be used is whether there was actually a miscarriage of justice.33 

Collins J went on to state that no class of error is a priori excluded from the application of the proviso – meaning that it has a broad application – but where there is an error, it must be ‘a departure from the essential requirements of the law ... that goes to the root of the proceedings.’34 This is a high threshold, and if it is made out, then there will be no scope for the proviso and an appeal must be allowed, as per DPP v Sheehan.35 In the event that such an error is made, Collins J made reference to O’Malley J’s obiter commentary in DPP v Forsey that in the clearest of cases where the evidence against the accused was so strong that no real injustice could be said to have occurred, then proviso might be applied even though fundamentally erroneous jury instructions had been given in that case. However, O’Malley J warned that an appellate court should be extremely cautious if it were to use the proviso where a fundamental error was made.36  

At bottom, Collins J stated that the essential issue is whether a properly directed and reasonable jury, on the evidence properly admitted, would ‘without doubt’ have convicted the accused.37 If that cannot be said, then the accused has lost a real chance of acquittal and so an injustice has been done mandating the conviction to be quashed. However, the chance of acquittal must be real rather than remote or fanciful, and this examination is carried out by the appellate court acting ‘as proxy for the reasonable jury.’38 

In the end, having regard to the totality of evidence, Collins J held that there was no question of any lost chance of acquittal for Dwyer and therefore no ‘miscarriage of justice’ had occurred, within the meaning of the proviso.39  In fact, the remaining evidence, independent of the telephony data, was ‘more than sufficient to establish attribution beyond any reasonable doubt’, and this evidence was ‘overwhelming and unanswerable’.40 Hence, Collins J went on to conclude in the alternative that even if the traffic and location data was inadmissible, no miscarriage of justice had actually occurred and thereby the Supreme Court upheld the decision of the Court of Appeal and accordingly dismissed Dwyer’s appeal.41 

Conclusion: 

After Dwyer’s lengthy legal challenge, the Supreme Court decisively did not find in his favour. Dwyer holds that where there is a breach of Charter rights in relation to improperly accessing and retaining traffic and location data on foot of the 2011 Act, the test to be used as to whether this data is admissible is the JC test. The JC test is used for breaches of constitutional rights, and Dwyer confirms that it is also to be used for Charter breaches. On the proviso issue, in the context of a fundamental error at trial, Collins J made clear that the essential matter is whether a reasonable and properly instructed jury would ‘without doubt’ convict the appellant, and if that cannot be said, then there is a real chance that the prospect of acquittal has been lost, and an injustice has been done requiring the conviction to be quashed. Although there may have been impropriety in the manner in which the traffic and location data was accessed and retained, it was admissible under JC and even if it was inadmissible, there was no miscarriage of justice, having regard to the totality of the evidence, leading to upholding of Dwyer’s conviction. Dwyer continues to serve his sentence of life imprisonment. 

 Bibliography:

1 DPP v Dwyer [2024] IESC 39 (Collins J) [1].

2 Ibid, (Hogan J) [2].

3 Directive 2006/24/EC, which amended the earlier E-Privacy Directive 2002/58/EC.

4 To be more particular, the CJEU held in the joined cases of C 293/12 and C 594/12 Digital Rights Ireland that the Directive was invalid because it was a violation of the privacy rights and the principle of proportionality in the light of Articles 7, 8 and 52(1) of the Charter of Fundamental Rights of the European Union.

5 Discretion was exercised under DPP v Kenny [1990] 2 IR 110. Kenny was subsequently overruled by DPP v JC [2015] IESC 31.

6 DPP v Dwyer [2024] IESC 39 (Collins J) [15].

7 [2018] IEHC 685 [3.107].

8 [2019] IESCDET 108.

9 Case C-140/20: GD v Commissioner of An Garda Síochána (ECLI:EU:C:2022:258; CJEU, Grand Chamber; 5 April 2022).

10 DPP v Dwyer [2024] IESC 39 (Collins J) [19].

11 DPP v Dwyer [2023] IECA 70 [116].

12 Ibid, [124].

13 [2023] IESCDET 88.

14 DPP v Dwyer [2024] IESC 39 (Collins J) [27].

15 Ibid, [31].

16 [2024] IESC 22 and [2024] IESC 23 respectively.

17 DPP v Dwyer [2024] IESC 39 (Collins J) [32].

18 [2015] IESC 31; [2017] 1 IR 417.

19 [1965] IR 142.

20 DPP v Dwyer [2023] IECA 70 [129].

21 DPP v Dwyer [2024] IESC 39 (Collins J) [32].

22 DPP v JC [2015] IESC 31 (Clarke J) [5.11]-[5.23].

23 DPP v Dwyer [2024] IESC 39 (Collins J) [32].

24 Ibid [42].

25 Ibid.

26 Ibid, [44].

27 Ibid.

28 Ibid, (Hogan J) [3].

29 Ibid, [4].

30 [1976] IR 260, 272.

31 DPP v Dwyer [2024] IESC 39 (Hogan J) [17].

32 Ibid, (Collins J) [75].

33 Ibid.

34 Ibid.

35 [2021] IESC 49; [2021] 1 IR 33 [138]. See also DPP v Fitzpatrick [2012] IECCA 74; [2013] 3 IR 656 [46] and DPP v Quirke (No. 2) [2023] IESC 20 [9].

36 [2018] IESC 55; [2019] 2 IR 417 [194].

37 DPP v Dwyer [2024] IESC 39 (Collins J) [75].

38 Ibid.

39 Ibid, [98].

40 Ibid, [97].

41 Ibid, [98].