Lawyers for detective convicted of harassing State solicitor argue prosecution evidence retained under ‘doomed’ data law

Eve Doherty, 50, was found guilty by a jury at Dublin Circuit Criminal Court of harassing State solicitor Elizabeth Howlin between September 2011 and March 2013. Ms Doherty, who had denied the charge, maintains her innocence.

She was found not guilty on two counts of making false statements on two dates in March 2012, in which she claimed Ms Howlin was perverting the course of justice.

At the time in question, Ms Howlin worked with the Director of Public Prosecutions (DPP) where she was involved in deciding whether or not to direct prosecutions in criminal cases. Ms Doherty held the position of detective sergeant and worked in the crime and security division of An Garda Síochána.

The trial heard that over an 18-month period, letters and emails were sent to Ms Howlin’s home, her place of work and to her GP calling her “corrupt”, an “incompetent useless hobbit” and a “two-faced bitch”.

The court heard Ms Howlin didn’t know Ms Doherty until the trial and that Ms Doherty was then in a relationship with Ms Howlin’s ex-partner.

Sentencing Ms Doherty to three years imprisonment in January 2018, Judge Melanie Greally said the communications by Ms Doherty contained outright and “scurrilous” lies. They contained statements which were variously disparaging, insulting and offensive, both from a personal and professional manner.

Doherty moved to appeal her conviction yesterday on more than a dozen grounds.

Counsel for Ms Doherty, Michael O’Higgins SC, said the prosecution relied on two pieces of technical evidence - a static IP address and information related to a “hushmail” email account kept on a server in Canada. He said requests were made for the data under the “doomed” Communications (Retention of Data) Act 2011.

Mr O’Higgins said the 2011 Act was introduced to give effect to an EU Directive which had been “struck down” by the European courts. He said the State were aware since 2016 that the 2011 Act breached EU law and the High Court had reached the same conclusion in the case of convicted murderer Graham Dwyer just last week.

He said the State’s position in relation to the breach was that it was a matter between the Government and the EU, so it doesn’t affect a citizen’s rights. He said Ireland had possibly the strongest “exclusionary rule” in the common law world and it didn’t make sense to say the law still stood.

Mr Justice John Edwards remarked that the EU Directive did not apply to individuals but applied to the State. He said the 2011 Act was the law of the land and the EU did not have a right to strike down Irish legislation. There may be penalties or enforcement action taken against Ireland in respect of the breach, but in terms of what the gardaí did in this case - in 2012 and 2013 - it was the law of the land at the time, he said.

Mr O’Higgins said the 2011 Act was as “dead as the proverbial door nail”. He said the State were on notice for years that the EU Directive was “bad law” and, since 2016, that the Irish legislation breached EU law.

He said the European Union’s “take on privacy was somewhat different to our own”. He said the gardaí appeared to operate a system of “mass surveillance”, irrespective of whether individuals were suspected criminals. The maximum two-year time limit for retention was routinely breached and independent levels of supervised access were found “wanting”.

He submitted that the prosecution should not have relied on data which had been retained and sought in contravention of EU law, and that the trial judge erred in erred in failing to exclude the evidence.

The barrister added that there was nothing to suggest the retention of the data in Canada complied with EU law or respected the right to privacy. The data was obtained in Canada apparently on foot of a court order, which was not exhibited, he said.

Mr O’Higgins further submitted that the trial judge erred on the definition of harassment, as the definition of harassment did not include what might be called “indirect harassment”, and this had been acknowledged by the Law Reform Commission.

Thirdly, he submitted that the trial judge erred in failing to exclude a wide variety of evidence such as typed and handwritten documents found in Doherty’s possession, in the absence of evidence that the documents were written by her.

He said the prosecution relied on a witness, who had no particular expertise, to highlight typos and “idiosyncrasies” in the documents. They were seeking to show commonalities in the documents to suggest a common author.

Mr O’Higgins further submitted that the trial judge erred in failing to exclude evidence of an email purportedly written by Ms Doherty in which certain comments were made about the then Garda Commissioner Martin Callinan. Mr O’Higgins said his client’s right to privacy in the sending of the non-criminal email was breached.

Counsel for the Director of Public Prosecutions, Kerida Naidoo SC, will make submissions next Thursday before the President of the Court of Appeal, Mr Justice George Birmingham, Mr Justice John Edwards and Ms Justice Isobel Kennedy.

Ruaidhrí Giblin, Ireland International News Agency Ltd.