Reserved judgment in appeal by detective convicted of harassment

A detective found guilty of harassing a State solicitor by sending abusive letters and emails is seeking to have her conviction overturned on grounds that her data was retained under “doomed” Irish law.

Eve Doherty (50), with an address in Blackglen Road, Sandyford, Dublin, was found guilty by a jury at Dublin Circuit Criminal Court of harassing State solicitor Elizabeth Howlin between September 2011 and March 2013.

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.

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 did not know Doherty until the trial and that Doherty was then in a relationship with Ms Howlin’s ex-partner.

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

Doherty has brought an appeal against her conviction on more than a dozen grounds. The Court of Appeal has reserved its judgment.

‘Doomed’

Counsel for 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 two weeks ago.

In replying submissions on Thursday, counsel for the Director of Public Prosecutions, Kerida Naidoo SC, said electronically stored data was given a very clear definition in the directive. It was personal data of an identified or identifiable natural person.

Mr Naidoo said the information relied upon was “not personal data at all” within the meaning of the directive. None of it allowed for the accused to be identified - either directly or indirectly - regardless of how the data was “combined together”, he submitted.

He said all of the emails were anonymous. When they were “de-encrypted”, the only information the gardaí ­ got was the IP addresses of the internet shop.

Surveillance was put in place. A camera was put into the shop. A photo of Doherty was taken from that footage. On September 28th, when Doherty went into the internet cafe, the shop owner recognised her from the photo, and called gardaí.

An undercover garda went in and sat next to Doherty, or close to her. She was wearing a wig and dark sunglassses. She was followed home.

Wig and sunglasses

That was “real world” evidence that had nothing to do with personal data.

Mr Naidoo said the prosecution asked the jury to infer that Doherty wrote all of the emails. There was also behaviour evidence - the wig and sunglasses - and the “comparative language exercise” carried out by gardaí.

If anybody’s privacy rights were affected, it was the injured party’s, Mr Naidoo said

Mr O'Higgins had said the State's position in relation to the breach was that it was a matter between the Irish Government and the EU, so it does not 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 gardai did in this case - in 2012 and 2013 - it was the law of the land at the time, the judge said.

Mr O’Higgins said the 2011 Act was as “dead as the proverbial doornail”. He said the State was 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 Garda­ 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”.

President of the Court of Appeal Mr Justice George Birmingham, who sat with Mr Justice John Edwards and Ms Justice Isobel Kennedy, said the court would reserve its judgment.