Retaining and accessing mobile phone metadata breaches EU law

10000maniacs

Europe's top court confirmed this morning that Ireland’s system of retaining and accessing mobile phone metadata breaches EU law.

Ok, But what I don't understand how a vicious killer who was convicted using this technology suddenly becomes less of a killer and is less dangerous on the streets if let out because the EU has passed this ruling.

Effects

The evidence should have been inadmissible. It's got nothing to do with with how dangerous the killer is. It's all about what you can prove in a court of law. People get away with crimes all the time as there isn't enough evidence to convince a jury of guilt.

MarkEadie

https://www.boards.ie/discussion/comment/118883984#Comment_118883984

Agreed. Dwyer will probably get released and a nice sum of compensation.

Effects

I hadn't thought about compensation, just that he may get released. He'll have to undergo a retrial though, and won't just be let out on the basis of this finding on the mobile data.

Sleeper12

The murder took place in 2012. Government knew in 2012 that they needed to bring in legislation on this matter. They didn't & they still haven't. If government brought in legislation then Gardai could have used phone records.

Podge_irl

https://www.boards.ie/discussion/comment/118884054#Comment_118884054

Couldn't have made the legislation retroactive though, they would have had to do it before the murder.

Anyway, he will get a retrial I suspect and we will see. It is an unfortunate downside of behaving under the rule of law, but it is dwarfed by the upsides.

10000maniacs

But surely if the prosecution proves beyond reasonable doubt that the circumstances in which the identification was made has produced a reliable identification, this EU ruling should hold no water. Surely this is the common sense approach. Otherwise we have people whom we all know to be vicious and dangerous murderers and are a danger to us all are roaming the streets.

CarProblem

"But surely if the prosecution proves beyond reasonable doubt" - but what if that proof was based on evidence that is now inadmissible? I don't know how strong the prosecution case is without this evidence however - I'm not qualified to comment

"But what I don't understand how a vicious killer who was convicted using this technology suddenly becomes less of a killer and is less dangerous on the streets if let out because the EU has passed this ruling"

I often read threads on here and think "if I'm ever on trial for a crime I didn't commit those people could be on the jury". Yet again I'm thinking that and it's a terrifying vista

Fandymo

https://www.boards.ie/discussion/comment/118884121#Comment_118884121

The law is the law. Dwyer, and likely others, will get out and probably get a nice chunk of money from the taxpayer due to our Government being incompetent. Will anyone get the blame for not implementing the law? Fcuk no, we don't do consequences in Ireland.

Atlantic Dawn

Will there be a liability for the phone companies for retaining this data and having it available or is it a fact that the government insisted on it being kept despite it being known to be not compatible with EU law?

Podge_irl

https://www.boards.ie/discussion/comment/118884121#Comment_118884121

You can't use illegally gathered data in a prosecution. Throwing the rules out cause you "know" you get the right guy is the stuff of authoritarian dreams.

They can go for a retrial and do it without this evidence (Though it will be tough to get a "fair" trial).

Fandymo

https://www.boards.ie/discussion/comment/118884351#Comment_118884351

It'll also be next to near impossible to place Dwyer, in the places they need to prove him to have been, without the data.

Overheal

Even courts in the US lean towards the defendant in these case law examples. LEOs cannot just ignore the peoples constitutional rights, even the suspects, even when they were right to be suspicious.

c.p.w.g.w

According to some legal expert on Six One...

Even if the phone data was obtained illegally, the judge can still allow it...if that's correct that's kinda scary

Jinglejangle69

So does this mean that illegal activity on the web and peoples phones can’t be used to prosecute??

Surely not, hopefully???

To best of my knowledge,there no evidence exists elaine ohara was even murdered

This case never sat easy with me,to hold highly questionable fetishs and what 2 consenting adults do in a bedroom,

This shouldnt be used as a reason to imprison someone either...ive no doubt dwyer is a sketchy individual,but the lack of any physical evidence reflects poorly upon justice system imo

whiterebel

There definitely was something when this case was presented, that the Irish court could chose to ignore the ruling and uphold the guilty verdict.

https://www.boards.ie/discussion/comment/118886308#Comment_118886308

Would he not just appeal it to european courts....potentially causing an issue of the supreme court being over ruled and having to back down??

Overheal

https://www.boards.ie/discussion/comment/118886210#Comment_118886210

Depends on Irelands Jurisprudence and EU's. EU says they cannot use it, so it's a matter of whether it's a supremacy clause issue or if its a case of two sovereignties (evidence can't be used to convict EU crimes, may be used possibly to convict Irish crimes, if Irelands courts allow it)

L1011

https://www.boards.ie/discussion/comment/118884008#Comment_118884008

Unlikely. Plenty of other evidence and also there's a history of "if you didn't challenge it at the trial, feck off" rulings.

The other evidence is still legit even if they figured out it was him and then obtained said evidence based on the phones. Its not the same as the seeing something on an illegal search connection.

Illegally gathered evidence can still be admissible, depending on certain things. DPP v JC

https://www.boards.ie/discussion/comment/118886467#Comment_118886467

What other evidence is there?

Theres not even conclusive evidence,this poor woman was murdered

freshpopcorn

Could Joe O'Reilly also go down this route?

lukewarm06

The issue now is being granted the retrial...if he gets that I think he will be laughing ...

The conviction was always shaky,I think it was Pathologist Marie Cassidy who said at the time she was shocked he was found guilty given the evidence presented which was quite something.....

There was no DNA,forensics,murder weapon,I dont think they could prove from her remains she was murdered.....

Firminos

Could he actually be acquitted?

Firminos

Would be insane

listermint

https://www.boards.ie/discussion/comment/118886549#Comment_118886549

You keep saying that graham.

Peregrinus

https://www.boards.ie/discussion/comment/118886434#Comment_118886434

The ECJ has not said that Ireland cannot use the phone data; just that we should not have retained it. Given that it was retained, albeit improperly, the question of whether it can be used in evidence is a question of Irish law, not EU law, and the ECJ has not said anything about this. The case goes back to the Irish courts to determine this.

The general rule in Irish law is that illegally/unconstitutionally obtained evidence cannot be admitted in court, but there are numerous exceptions to this rule. It remains to be seen whether the court will find that this case comes within one of the established exceptions or will craft a new exception that covers this case. If I were Dwyer I would not be booking any holidays abroad just yet.

ohnonotgmail

https://www.boards.ie/discussion/comment/118886294#Comment_118886294

or perhaps the lack of physical evidence reflects well on his ability to hide it?

No evidence how she died. The only conclusive evidence presented was from the phone data was that the master phone and graham dwyers phone were pinging the same telephone masts at the same times and from the same direction about the times when Elaine O Hara disappeared.

https://www.boards.ie/discussion/comment/118886558#Comment_118886558

No. The mobile data was collected almost immediately

Allinall

After his conviction, I wonder did he ever say anything that could now be self- incriminating?

sugarman20

I always remember Marie Cassidy being surprised at the guilty verdict. In my mind he's responsible but It's highly likely he will get out now. I doubt they would even bother with a retrial as without the phone evidence there is very little there. Even the phone evidence is weak as mentioned above.

Peregrinus

https://www.boards.ie/discussion/comment/118887215#Comment_118887215

Doesn't matter. You won't get a conviction on the argument that the necessary evidence probably exists but has been successfully hidden by the defendant.

tara73

I honestly think that piece of s** GD has to ask himself if life isn't better in his 'cushy' prison than outside. I actually think it is in his case. What will his life look like outside? Nobody in the world wants to have him living in their communities, so has to hide his identity constantly, but haunted by the press also constantly revealing his identity, him on the run again in different countries, where's money to live from coming from? The life of a chased rat. Look up Larry Murphys history since he's released from prison. They can actually share so they're not alone haha. It's actually what LM did in Amsterdam sharing a place with some other scumbag he got to know in prison, but didn't last long since for sure press found out.

ohnonotgmail

https://www.boards.ie/discussion/comment/118887374#Comment_118887374

I'm well aware of that, thanks. I was responding to this

 the lack of any physical evidence reflects poorly upon justice system imo

I don't believe it does reflect poorly on the justice system.

Effects

https://www.boards.ie/discussion/comment/118887416#Comment_118887416

He'll move abroad, change his name, and probably turn his hand to a job that'll pay alright. He's obviously a smart enough man.

https://www.boards.ie/discussion/comment/118887655#Comment_118887655

You dont believe a judicery handing out life sentences,without any physical/dna evidence or even conclusive proof victim was murdered,deosnt reflect poorly upon our justice system?,really?

Take off the blinkers,and apply it to any other case,and no rational person would support it

ohnonotgmail

https://www.boards.ie/discussion/comment/118887847#Comment_118887847

not if there is other evidence.

10000maniacs

https://www.boards.ie/discussion/comment/118887275#Comment_118887275

Correct me if I am wrong, but the phone correspondence and videos between himself and the victim clearly puts him in the frame. Bang to rights.

 “Ok, a life for a life. Help me take one and I will give you one,” he texted her.

“My urge to rape, stab, kill is huge. You have to help me control or satisfy it.”

And she ended up dead.

The Irish public don't want this class of monster to be living among us.

It's like an axe murder with the victims blood and the murderers fingerprints on the axe being inadmissible because the police didn't have a warrant to enter the house where they found the axe.

Doesn't mean the defendant is not guilty of the crime.

Fandymo

https://www.boards.ie/discussion/comment/118887892#Comment_118887892

Nobody should be convicted on circumstantial evidence. Don't you have to prove "beyond a reasonable doubt" in Ireland? How did they get a guilty verdict in this case? It seems crazy.

Fandymo

https://www.boards.ie/discussion/comment/118888070#Comment_118888070

BDSM etc would be huge on roleplay, text messages mean absolutely nothing.

ohnonotgmail

https://www.boards.ie/discussion/comment/118888178#Comment_118888178

i'm not sure you understand what is meant by circumstantial.

Fandymo

https://www.boards.ie/discussion/comment/118888204#Comment_118888204

Circumstantial evidence is evidence of facts that the court can draw conclusions from.

There was no physical evidence that Dwyer murdered Elaine O'Hara, or even that she was actually murdered.

timmyntc

https://www.boards.ie/discussion/comment/118888178#Comment_118888178

The fact that both his and her discarded phones were recovered together in a lake is more than circumstantial

Fandymo

https://www.boards.ie/discussion/comment/118888299#Comment_118888299

Really? It's the literal interpretation of circumstantial.

ohnonotgmail

https://www.boards.ie/discussion/comment/118888263#Comment_118888263

Circumstantial evidence is any evidence that does not come directly from a participant or eyewitness.

Fandymo

https://www.boards.ie/discussion/comment/118888345#Comment_118888345

Circumstantial evidence is indirect evidence that does not, on its face, prove a fact in issue but gives rise to a logical inference that the fact exists. Circumstantial evidence requires drawing additional reasonable inferences in order to support the claim.

ohnonotgmail

https://www.boards.ie/discussion/comment/118888368#Comment_118888368

yeah, that is what i said. and you want to exclude that evidence or reduce its weight. the justice system would collapse.

Fandymo

https://www.boards.ie/discussion/comment/118888374#Comment_118888374

It's weight is already reduced, it's circumstantial and proves nothing on it's own.

In court you have to be found guilty BEYOND A REASONABLE DOUBT, how can someone be found guilty of murder when there is literally NO EVIDENCE that a murder had been committed.

ohnonotgmail

https://www.boards.ie/discussion/comment/118888399#Comment_118888399

no, it isn't. circumstial and direct evidence have the same weight.