Supreme Court Ruling - Graham o dwyer

An Old Grey Mare

Anyone explain to me the judgement as simply as possible.... cheers

10000maniacs

The judge just said that it was his opinion that the 2014 ECJ judgement should not be used to dismantle old cases retrospectively because EU law was different at the time, but will refer Graham Dwyer's case over the retention and accessing of his mobile phone metadata to the Court of Justice of the European Union.
That's my take on it, but If I am wrong, apologies.

amusicalfrog

The legal question was whether or not the law (the Communications (Retention of Data) Act 2011) on which the Gardaí relied when they accessed Graham Dwyer's phone data during their investigation of the O'Hara murder violated EU law on data protection (In my opinion, in the face of recent case law of the Court of Justice of the EU it appears obvious that it does). In any event, the Supreme Court decided today to refer the question of whether or not the law was invalid to the European court.

If it is found by that court that the law is in breach of EU law then Dwyer can use that ruling to challenge evidence in his appeal of his conviction for the murder of Elaine O'Hara. If and when this happens, it will require the Court of Appeal to assess whether or not the evidence can still be relied on.

Water John

He did it, he killed Elaine O'Hara. I find it difficult to process that people who obviously committed some heinous crime, feels in some way justified in using legal loopholes. I know justice is blind and all that but, have some bit of humanity and accept the grevious wrong you've done.

An Old Grey Mare

amusicalfrog wrote: »

The legal question was whether or not the law (the Communications (Retention of Data) Act 2011) on which the Gardaí relied when they accessed Graham Dwyer's phone data during their investigation of the O'Hara murder violated EU law on data protection (In my opinion, in the face of recent case law of the Court of Justice of the EU it appears obvious that it does). In any event, the Supreme Court decided today to refer the question of whether or not the law was invalid to the European court.

If it is found by that court that the law is in breach of EU law then Dwyer can use that ruling to challenge evidence in his appeal of his conviction for the murder of Elaine O'Hara. If and when this happens, it will require the Court of Appeal to assess whether or not the evidence can still be relied on.

This can have huge consequences surely for alot of cases? Other murders, fraud, pornography, drugs etc etc? The garda criminal bureau where they examine all these cases forensically are on a "pause". What could be the outcome for them if the European Court decides it stands?

Also will it take long? I can imagine Graham O Dwyer is not too happy (good). By the time this is all sorted he'l prob be out!

An Old Grey Mare

Water John wrote: »

He did it, he killed Elaine O'Hara. I find it difficult to process that people who obviously committed some heinous crime, feels in some way justified in using legal loopholes. I know justice is blind and all that but, have some bit of humanity and accept the grevious wrong you've done.

Yeah completely agree. He is obviously a sadist and should never see the light of day again!

BUT

If people admire and uphold the law to that degree would it not be hypocritical of people to turn a blind eye to this possible breach in the law?

In other words loophole or not, should we break laws to convict others who have broken laws?

Dont get me wrong, i think he should rot for what he did to that poor woman. Its just a question im putting out there.

Guy:Incognito

Water John wrote: »

He did it, he killed Elaine O'Hara. I find it difficult to process that people who obviously committed some heinous crime, feels in some way justified in using legal loopholes. I know justice is blind and all that but, have some bit of humanity and accept the grevious wrong you've done.

If we're going with he humanity angle, then surely he wouldn't have killed her in the first place, or he would have owned up straight after doing it?

Tork

I assume they've sent this to Europe because it has enormous implications throughout the EU?

amusicalfrog

An Old Grey Mare wrote: »

This can have huge consequences surely for alot of cases? Other murders, fraud, pornography, drugs etc etc? The garda criminal bureau where they examine all these cases forensically are on a "pause". What could be the outcome for them if the European Court decides it stands?

Also will it take long? I can imagine Graham O Dwyer is not too happy (good). By the time this is all sorted he'l prob be out!

This is much more conjectural, but even if the EU court rules that the law is invalid, I can't see the Court of Appeal overturning Dwyer's conviction. In 2015 there was a case called DPP v JC which significantly changed the law on evidence which is obtained in breach of rights. Now, evidence obtained in breach of a defendant's rights can still be admitted if the breach was 'inadvertent or arises from subsequent legal developments'. I would predict that this is what the Court of Appeal would rely on in allowing the evidence. That being said this is all an undergraduate law student's prediction lol.

As regards how long it will take, I'm not really sure - probably a year or two?

TheAsYLuMkeY

An Old Grey Mare wrote: »

should we break laws to convict others who have broken laws?.

An amendment to the law should be made that in special circumstances where the body of evidence is so great that gives reasonable assumption of guilt then personal data can be accessed to further add to it and ensure a conviction.

If the wheels of bureaucracy turn the way they normally do we should get ten years out of this before its decided anyway.

NUTLEY BOY

Water John wrote: »

He did it, he killed Elaine O'Hara. I find it difficult to process that people who obviously committed some heinous crime, feels in some way justified in using legal loopholes. I know justice is blind and all that but, have some bit of humanity and accept the grevious wrong you've done.

Whoa - not so fast.

This matter has potentially quite a number of hearings to go through before final determination on the criminal side. Be aware that this might end up with the conviction being overturned without an order for a retrial. That will restore the legal presumption of innocence. Will you stand over your presumptuous observations in that event ?

Water John

I will still know that he did it even if his appeal wins on a legal technicality.
This is the same basis I apply to Joe O'Reilly, Molly Martens and her father.

NUTLEY BOY

Water John wrote: »

I will still know that he did it even if his appeal wins on a legal technicality.
This is the same basis I apply to Joe O'Reilly, Molly Martens and her father.

You cannot dismiss the successful appeal of a conviction as being a mere [my word] legal technicality.
The laws of evidence, inter alia, apply to all cases and are there for good reasons.
If the final determination is that a conviction is reversed and no retrial is ordered the legal position will be that the accused enjoys the same position that he occupied one second before being charged i.e. the legal presumption of innocence.
No amount of second-guessing or opining alters this very important and fundamental principle.

You have the right to form and express an opinion on the merits of an issue and what you believe.
However, that right can be seriously constrained where it comes in to jarring conflict with alternative competing legal rights such as those protected by the tort of defamation.
Put another way - you can think what you like but be careful about how far you go in what you say

KWAG2019

As it is a point of EU law the SC has used that card to get a definitive ruling and keep Dwyer in jail. As pointed out in this thread the JC ruling would seem to have an avenue of release pending retrial blocked off but that might hinge on “inadvertent”.

amusicalfrog

KWAG2019 wrote: »

As it is a point of EU law the SC has used that card to get a definitive ruling and keep Dwyer in jail. As pointed out in this thread the JC ruling would seem to have an avenue of release pending retrial blocked off but that might hinge on “inadvertent”.

I would say that the 'subsequent legal developments' branch of the JC test would be much more easily relied upon - the Gardaí were acting within the bounds of the law as it was at the time of the investigation, and any breach found would only be as a result of the ECJ finding the law invalid.

Peregrinus

Tork wrote: »

I assume they've sent this to Europe because it has enormous implications throughout the EU?

Not really.

It has been sent to the CJEU because it involves a point of EU law, and if you want a definitive ruling on a point of EU law, the CJEU is where you go to get it. There's a well-established procedure whereby, when a national court finds that a case before it will turn on a point of EU law, it refers the question of EU law (not the whole case, just the question of EU law) to the CJEU and then, when it gets an answer from the CJEU, hears the case before it.

In this case the question is "Is the Communications (Retention of Data) Act 2011 contrary to EU law?" On the face of it, that's not a question that has enormous ramifications throughout the EU; it only directly affects those Member States who have laws similiar to the Communications (Retention of Data) Act 2011 and, for all I know, Ireland may the only state with such a law. So the reason for referring the question to the CJEU is not that the question matters to other member states; it's that the question matters to the particular case that is before the Irish court, and the Irish court would like an answer.