DPP v Doherty (1), DPP v Doherty (2), DPP v Doherty (3)

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton,O'Donnell J.,Ms. Justice Iseult O'Malley
• Judgment Date: 24 July 2020
• Neutral Citation: [2020] IESC 45
• Court: Supreme Court
• Docket Number: Supreme Court appeal number: S:AP:IE:2019:000186 Court of Appeal record number 2018/26 [2019] IECA 209 Circuit Criminal Court bill number: CCC S:AP:IE:2019:000186 [Supreme Court Appeal No: 186/2019]
• Date: 24 July 2020

Between

The People (at the suit of the Director of Public Prosecutions)

Prosecutor/Respondent

- and -

Eve Doherty

Appellant/Accused

[2020] IESC 45

O'Donnell J.

MacMenamin J.

Charleton J.

O'Malley J.

Baker J.

Supreme Court appeal number: S:AP:IE:2019:000186

[2020] IESC 045

Court of Appeal record number 2018/26

[2019] IECA 209

Circuit Criminal Court bill number: CCC

S:AP:IE:2019:000186

[Supreme Court Appeal No: 186/2019]

Ail Chúirt Uachtarach

The Supreme Court

Conviction – Harassment – Besetting – Appellant seeking to appeal against conviction – Whether communications to other people about the subject of the prosecution come within the scope of harassment

Facts: The appellant/accused, Ms Doherty, by leave of the Supreme Court of 26 November 2019, [2019] IESCDET 277, appealed further against the dismissal by the Court of Appeal of her appeal against conviction by a jury for harassment in the Dublin Circuit Criminal Court of 1 August 2017; judgment of Edwards J of 31 May 2019, [2019] IECA 209. The accused had been convicted of a single count of harassment and was sentenced to three years imprisonment. The jury had acquitted her of two other counts on the same indictment, each alleging the making of a false statement, contrary to s. 12 of the Criminal Law Act 1976. In the Court of Appeal, the applicant’s sentence was reduced so as to suspend the balance of the originally imposed 20 months imprisonment that she had already served. This appeal concerned the construction and scope of s. 10 of the Non-Fatal Offences Against the Person Act 1997 and whether, in particular: (1) communications to other people about the subject of the prosecution come within the scope of harassment; and (2) as to the meaning of besetting a person as the term is used in the Act.

Held by the Court that there was a veritable blizzard of emails through anonymous routing and the point of all of this activity was communication. The Court held that no offence would be committed unless the accused intended by the activity that she would act so that she, in the words of s. 10 of the1997 Act, “seriously interferes with the other's peace and privacy or causes alarm, distress or harm to the other, and” further these “acts are such that a reasonable person would realise that the acts would seriously interfere with the other's peace and privacy or cause alarm, distress or harm to the other”. The Court held that communication with the victim occurred, this was intentional as there was no sense on the facts of the accused taking a serious risk of communication in morally culpable circumstances, rather the point of the emails was the same; on any common sense and shrewd interpretation, it was to undermine the life of the victim. The Court upheld the conviction of the accused on the wrong of harassment of the victim through communicating with her; this judgment was the unanimous expression of the reasons on harassment through communication with which reasoning the Court agreed. The majority view was that what happened was not harassment through besetting.

The Court dismissed the appeal, affirmed the order of the Circuit Criminal Court and upheld the order of the Court of Appeal.

Appeal dismissed.

Judgment of Mr Justice Peter Charleton delivered on Friday, July 24th 2020

1 Harassment was made an offence by s 10 of the Non-Fatal Offences Against the Person Act 1997. Before that time, those whose lives were affected by harassment, or as it is commonly called stalking, could only have resort to the equitable jurisdiction of the courts and hope to obtain injunctive relief This appeal concerns the construction and scope of the 1997 legislative measure and whether, in particular, (1) communications to other people about the subject of the prosecution come within the scope of harassment and (2) as to the meaning of besetting a person as the term is used in the Act. As to (1), this is the majority judgment. As to (2), a view is expressed here on besetting, but this is unnecessary to the outcome of the appeal; though it may be noted that the majority take a different view on the meaning of this unnecessary use in a modern statute of a word that has completely fallen out of common usage.

Appeal

2 By leave of the Court of 26 November 2019, [2019] IESCDET 277, the accused Eve Doherty appeals further against the dismissal by the Court of Appeal of her appeal against conviction by a jury for harassment in the Dublin Circuit Criminal Court of 1 August 2017; judgment of Edwards J of 31 May 2019, [2019] IECA 209. The accused had been convicted of a single count of harassment and was sentenced to three years imprisonment. The jury had acquitted her of two other counts on the same indictment, each alleging the making of a false statement, contrary to s 12 of the Criminal Law Act, 1976. In the Court of Appeal, the applicant's sentence was reduced so as to suspend the balance of the originally imposed 20 months imprisonment that she had already served. Sentence is not under appeal here.

Circumstances

3 The accused and the victim lived in a Dublin suburb. She is so called because no matter what the legal analysis, she was the victim of a very nasty experience over 18 months. The issue here is whether she was the victim within the definition of harassment in the 1997 Act. The victim worked within the justice system in the State and a distant relative of hers was a prominent person. Her husband and she are separated and, it seems, at some stage was in a relationship with the accused. What is presented in the various communications by the accused to various people and to the neighbourhood as raising her ire is that apparently in the same general area as both of them lived, a police search took place of a family home and a report went to the prosecuting authorities but no case was ever taken to court. By whatever uprush of bitterness or leap of imagination, the accused began to imagine that the victim had somehow stymied what to her was considered an obvious case to be brought before the criminal courts. She began a campaign of communication which involved one letter directly to the victim, the distribution of a set of leaflets in the neighbourhood and the sending to the agencies in the justice system and to people in prominent positions and in journalism of emails routed secretly by pseudonyms through a Canadian site. In these the accused denigrated the integrity, application to work and personal attributes of the victim. These are characterised by spite and also use some filthy language. Only by the painstaking recovery of metadata from various virtual sources was the identity of the accused discovered. The campaign lasted from September 2011 to March 2013, but, of the various communications, only one went directly to the victim. The prosecution at the trial sought to rely on the following:

1. Letter sent to victim's home in November 2011;

2. Letter sent to Director of Public Prosecutions in March 2012 (this, for whatever reason, was ruled out of consideration by the trial judge);

3. Leaflets placed on cars and pillars in the neighbourhood during the same month;

4. Email sent to many recipients in public life from markkenny@hushmail.com on 31 March 2012;

5. Letter sent to office of Director of Public Prosecutions of 21 April 2012;

6. Email similarly sent to many prominent recipients of 1 June 2012;

7. Email similarly distributed of 4 August 2012;

8. Two emails sent to many recipients of 16th March 2013, one of whom was the victim's family medical practitioner.

4 These communications were nasty. One email to multiple recipients purported to come from a dangerous and prominent criminal with multiple serious convictions and another” from a high public official. The victim's name was distorted so that, using an example divorced from the facts, Smith became distorted into the word for excrement; she was called or described as a hag, pompous, arrogant, responsible for the breakup of her marriage, a bad mother to her offspring, two-faced, a queen bee, corrupt, evil, a dwarf, a friend of drug dealers, a person sponging off the justice system while drawing a substantial salary for little work due to protection by a supposedly influential relation, an individual living in ill-deserved luxury and a promoter of cronyism. This diatribe was liberally garnished with filthy language. Like much that characterises harassment or stalking, in terms of typical fact and not legal analysis, what was communicated and the persistence in communicating various unhinged views was obsessive.

5 The victim's evidence at trial was that she had received the letter at 1, come to know of the letters at 2, which is not in issue as part of the case, and 5, seen the leaflets at 3 and generally became aware of the rest through being told by one or more of the email recipients at 4, 6, 7 and 8 or by having emails forwarded to her at her request on being told of their existence or because the recipients, understandably, felt it right to pass on the message. Asked at the trial as to the effect that this on her, the victim said:

Well, it really upset me and really worried me. Some of the correspondence referred to my [offspring], that just really worried me. I was in work all day and [a child] was at home. I did have a childminder, but I just worried … It also — I was just worried, I didn't know where it was coming from. There was a lot of personal information, so it made me feel that it was somebody who knew something about me. Some of the letters purported to be from my work colleagues, others from neighbours or I wondered if somebody had a grudge against me or whatever, so I just simply didn't know where it was coming from and that — very distressed and very uneasy… I mean, it's very upsetting. It alleged that you're corrupt, you're politically appointed, you're lazy, you don't have the experience for the job, I mean, that's all extremely...