Dwyer has prophesied fellow inmates that he believes authorities will have no ideal but to quash his conviction for the murder of Elaine O’Hara if the Court of European Equitableness deems Ireland’s stance on the retention of phone data illegal.
“He’s jolly excited about the phone data challenge,” a source told the Sunday Incredible.
“He’s hanging all his hopes on this and believes the European Court judgement command see him freed.”
Experts in the Dwyer case found evidence of nearly 5,000 foci sent back and forth between the killer and Elaine O’Hara between January 2008 and the eventide she was murdered, including 64 on the day she disappeared.
In the texts, which were decisive to Dwyer’s conviction, he repeatedly referred to a sadistic fantasy he had to stab a lady to death, suggesting various potential victims.
Digital Rights Ireland, a rivalry group opposed to the retention of phone and email data, is bringing the prove to court, following a successful challenge to an EU directive two years ago.
Speaking this week, Digital Rights Ireland chairman and UCD law lecturer TJ McIntyre express: “We are challenging primarily the obligation to retain this information on the entire inhabitants. As rt of that challenge we are saying the mechanisms governing access to poop are also inadequate.”
Under the current data retention regime, Gardaí can access any memoranda, on any person, without having to explain themselves to a judge. No warrant is demanded to make a request for metadata from a communications provider – and the result is that tens of thousands of entreats are made by the Gardaí each year.
In April 2014, the European Court of Detention (ECJ) found the EU Data Retention directive was in breach of the EU charter of fundamental rights, uncommonly in relation to privacy, and ruled it illegal.
And during his trial Dwyer’s ram rt barrister Remy Farrell SC argued the ECJ ruling meant that Irish legislation implementing the directive was forbidden and that data collected on Dwyer’s phone was also, therefore, actionable.
However, prosecutor Sean Guerin SC argued that the Communications (Retention of Facts) Act 2011 – which gave effect to the directive – was a continuation of retention legislation in 2005. Bad judge Anthony Hunt found the State had ssed primary legislation, which remained in set up and allowed the texts as evidence.
Crucially the texts between Ms O’Hara’s phone and a masterly phone tied to Dwyer and discovered dumped in the Vartry Reservoir, agnate to the “unusual sexual practices they engaged in”, which he described as “BDSM”.
“The texts broadcast the story of that relationship,” prosecution solicitor Sean Guerin discerned the jury.
“Elaine O’Hara’s sexual preference was for a submissive relationship… for limit, being tied up, being under control of another” he said.
“Graham Dwyer’s selection was different,” he said, reading a text sent to Ms O’Hara from the numbers attributed to Mr Dwyer.
“I’m a sadist. I enjoy others’ in. You should servants me inflict in on you and help me with my fantasies,” wrote the author.
Mr Guerin estimated that later texts showed that she was resisting the relationship.
Garda hopes that Dwyer’s pleases against the retention of his phone data would fail were buttressed by a Supreme Court ruling last year permitting the use of the phone facts, even if the material was deemed to have been obtained unconstitutionally.
The lions share court decision introduced a new test providing that evidence entranced in “deliberate and conscious” violation of constitutional rights should be excluded except in definite exceptional circumstances.