Sex killer Graham Dwyer is set to face another legal fight as the State looks to appeal his High Court phone records win.
The former architect took a case against it to remove critical data from the Garda case against him.
He was convicted by a jury four years ago of the 2012 horror killing of Elaine O’Hara.
The court found he killed her during a sexual bondage fantasy in the Dublin mountains. Gardai used retained phone data in their investigation to nab Dwyer – the tracking of the phone signals showed where he was.
The 100-page ruling at the High Court found Irish legislation used to keep records and accessed in criminal investigations is in breach of EU law and European Convention of Human Rights.
Now, sources have confirmed lawyers for the State are set to launch a fight back against the High Court ruling and are destined for a battle in the Supreme Court. A large number of cases, particularly gangland investigations, could be under threat because of the ruling.
Gardai access phone records to place the suspects at a particular location and also to see who they were in contact with during their crimes.
This data is retained by phone companies and handed over to gardai when a request is made.
The High Court found the system is in breach of EU law which takes precedence over Irish legislation – which was also found to be lacking in this area.
Gardai were using a 2011 law brought in in response to a European directive – this forced mobile phone providers to hold on to the data for two years.
Then this EU directive was found to be invalid by the Court of Justice of the European Union in 2014 but the Dail never updated Irish law to fit in with it.
Mr Justice O’Connor took two- and-a-half hours to read his judgement and said the importance of EU law was the basis for his ruling.
He added: “The primacy of EU law is the foundation for this judgment and loomed large throughout the entire hearing of these proceedings.
“One of the major obstacles affecting the position of the defendants is that Ireland and its courts have no option but to apply EU law which prohibits ‘general and indiscriminate retention’ and access which is not authorised by a court or an independent administrative authority in accordance with law.
“It is a well-established principle that where national law conflicts with EU law, the organs of the Member States are under a duty to disapply their national law.”
A Garda spokesman appeared to confirm the legal wheels were already in motion regarding the matter. He said: “It is not the policy of An Garda Siochana to discuss matters that are currently before the courts.”
The Department of Justice was approached for a statement.
A Department of Justice spokesman said: "On foot of legal advices, the State intends to appeal the High Court Judgment in this case having regard to the general public importance of the issues arising in these proceedings and in circumstances where a number of references have been made to the Court of Justice which raise fundamental questions about the scope and meaning of previous Judgments made by that Court."
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