The Director of Public Prosecutions v Graham Dwyer (Approved)

Factual and Procedural Background

The Appellant was convicted of the murder of a Victim who disappeared in August 2012. The Victim’s remains were discovered in The Mountains in September 2013. Around the same time, the Police recovered items from The Reservoir, including two mobile telephones and clothing later linked to the Victim. The prosecution’s case relied heavily on:

• Text messages found on the recovered telephones, attributed to exchanges between the Appellant and the Victim.
• Traffic and location (metadata) associated with those telephones, used to place both users geographically.

The Appellant appealed to the Supreme Court, arguing that the mobile telephony evidence was obtained in breach of Article 8 of the EU Charter of Fundamental Rights and should therefore have been excluded.

Legal Issues Presented

1. Whether mobile telephony evidence obtained in breach of Article 8 of the EU Charter is nonetheless admissible under Irish law.
2. Whether the Supreme Court’s recent majority decision in The People (Director of Public Prosecutions) v. Smyth [2024] IESC 23 is binding and dispositive of the present appeal under the doctrine of stare decisis.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Hogan delivered a concurring judgment. While personally adhering to the views expressed in his earlier dissent in Smyth, he accepted that:

• Binding Precedent: Smyth was decided by a seven-judge Supreme Court after full argument and exhaustive consideration of relevant materials. Under the standard articulated in Mogul, a prior decision should not be overruled unless it is “clearly wrong,” which had not been established.
• Stare Decisis: The judge adopted the approach of Chief Justice Finlay in Finucane — an individual judge should yield to clear majority authority to ensure coherent jurisprudence.
• Application of JC Principles: Because Smyth held that telephone metadata obtained in breach of the Charter remains admissible under national law unless acquired recklessly or with gross negligence, the same reasoning applies a fortiori to data accessed in 2013, before key CJEU rulings highlighted the illegality of the 2011 regime.
• Dispositive Nature of Smyth: Given the binding effect of Smyth, no further analysis of alternative grounds (e.g., the statutory proviso in s. 3(1)(a) of the Criminal Justice Act 1993) was necessary.

Holding and Implications

APPEAL DISMISSED.

The Supreme Court upheld the admissibility of the mobile telephony evidence and, consequently, the Appellant’s conviction. The judgment reinforces the authoritative status of Smyth and affirms that, under current Irish law, evidence obtained in breach of Article 8 of the EU Charter may be admitted unless the JC exclusionary rule is triggered by reckless or grossly negligent conduct. No new legal test was fashioned, but the Court underscored the strength of the doctrine of precedent in criminal evidence cases.