DPP v Doherty

JurisdictionIreland
JudgeMr. Justice Edwards
Judgment Date31 May 2019
Neutral Citation[2019] IECA 209
CourtCourt of Appeal (Ireland)
Docket NumberRecord No: 26/18
Date31 May 2019

[2019] IECA 209

THE COURT OF APPEAL

Edwards J.

Birmingham P.

Edwards J.

Kennedy J.

Record No: 26/18

BETWEEN/
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
V
EVE DOHERTY
Appellant

Conviction – Harassment – Admissibility of evidence – Appellant seeking to appeal against conviction – Whether evidence should have been excluded as inadmissible at the appellant’s trial

Facts: The appellant, Ms Doherty, appealed to the Court of Appeal against her conviction by a jury on the 1st of August 2017 of a single count of harassment, contrary to s. 10 of the Non Fatal Offences Against the Person Act 1997. The appeal raised several novel legal issues, and a number of more routine legal issues. The first novel issue concerned whether evidence comprising data gathered and retained by a telecommunications service provider within the State and provided to a Chief Superintendent of An Garda Siochana pursuant to a request made under s. 6 (1) of the Communications (Retention of Data) Act 2011 should have been excluded as inadmissible at the appellant’s trial in circumstances where Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006, which the 2011 Act was enacted to partially transpose, was declared invalid by the Court of Justice of the European Union on the 8th of April 2014, in conjoined cases no’s C-293/12, Digital Rights Ireland Ltd v Minister for Communications and others and C-594/12 Landesregierung and others, as representing a wide ranging and particularly serious interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter of Fundamental Rights of the European Union that was not actually limited to what was strictly necessary, and therefore unjustified. A further novel issue raised concerns whether evidence which comprised data within the meaning of the 2011 Act, gathered and retained by a telecommunications service provider outside of the State, and indeed outside of the European Union, and ultimately obtained by An Garda Siochána pursuant to a mutual assistance request, or by other means lawful in the jurisdiction in which it was obtained, was properly admitted at the appellant’s trial in the State’s jurisdiction in support of the prosecution case. Yet another novel issue concerned the correct interpretation of s. 10 of the 1997 Act, and in particular whether the types of behaviour listed in s. 10(1) as potentially comprising the actus reus of the offence of harassment (subject to the establishment of persistence, and of the threshold level of harm identified in s. 10( 2)) namely: “watching”, “pestering” “besetting” or “communicating”, are to be given their natural and ordinary meanings; or, alternatively, in some or all cases are to be given autonomous legal meanings such as, in the case of “watching” or “besetting”, the meanings attributed to those words in s. 7 of the Conspiracy and Protection of Property Act 1875. The more routine issues, also raised, concern the adequacy of proof of the provenance of certain documents; the trial judge’s failure to exclude evidence obtained in alleged breach of the right to privacy; the allegedly wrongful admission before the jury of certain evidence given by non experts which was alleged to be opinion evidence; alleged prejudice arising from the failure of the trial judge to grant directions on the two other counts on the indictment and of which the appellant was ultimately acquitted; and alleged failure by the trial judge to adequately address an issue arising from the closing address of counsel for the prosecution.

Held by the Court that it was not disposed to uphold any of the grounds of complaint relied upon by the appellant.

The Court held that the appeal against conviction would be dismissed.

Appeal dismissed.

Judgment of the Court delivered on the 31st day of May 2019 by Mr. Justice Edwards .
Introduction
1

This is the appellant's appeal against her conviction by a jury on the 1st of August 2017 of a single count of harassment, contrary to s. 10 of the Non Fatal Offences Against the Person Act 1997 (the ‘Act of 1997’). The appellant was acquitted by the jury 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.

2

The appeal raises several novel legal issues, and a number of more routine legal issues.

3

The first novel issue concerns whether evidence comprising data gathered and retained by a telecommunications service provider within the State and provided to a Chief Superintendent of An Garda Siochana pursuant to a request made under s.6 (1) of the Communications (Retention of Data) Act 2011 (the ‘Act of 2011’) should have been excluded as inadmissible at the appellant's trial in circumstances where Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 (‘ Directive 2006/24/EC’), which the Act of 2011 was enacted to partially transpose, was declared invalid by the Court of Justice of the European Union (‘the CJEU’) on the 8th of April 2014, in conjoined cases no's C-293/12, Digital Rights Ireland Ltd v Minister for Communications and others and C-594/12 Landesregierung and others (‘ the Digital Rights and Landesregierung cases’), as representing a wide ranging and particularly serious interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter of Fundamental Rights of the European Union (‘the Charter’) that was not actually limited to what was strictly necessary, and therefore unjustified.

4

A further novel issue raised concerns whether evidence which comprises data within the meaning of the Act of 2011, gathered and retained by a telecommunications service provider outside of the State, and indeed outside of the European Union, and ultimately obtained by An Garda Siochána pursuant to a mutual assistance request, or by other means lawful in the jurisdiction in which it was obtained, was properly admitted at the appellant's trial in this jurisdiction in support of the prosecution case.

5

Yet another novel issue concerns the correct interpretation of s. 10 of the Act of 1997, and in particular whether the types of behaviour listed in s.10(1) as potentially comprising the actus reus of the offence of harassment (subject to the establishment of persistence, and of the threshold level of harm identified in s. 10(2)) namely: ‘watching’, ‘pestering’ ‘besetting’ or ‘communicating’, are to be given their natural and ordinary meanings; or, alternatively, in some or all cases are to be given autonomous legal meanings such as, in the case of ‘watching’ or ‘besetting’, the meanings attributed to those words in s.7 of the Conspiracy and Protection of Property Act 1875.

6

The more routine issues, also raised, concern the adequacy of proof of the provenance of certain documents; the trial judge's failure to exclude evidence obtained in alleged breach of the right to privacy; the allegedly wrongful admission before the jury of certain evidence given by non experts which was alleged to be opinion evidence; alleged prejudice arising from the failure of the trial judge to grant directions on the two other counts on the indictment and of which the appellant was ultimately acquitted, and alleged failure by the trial judge to adequately address an issue arising from the closing address of counsel for the prosecution.

The Background to the Prosecution
7

At the time of the alleged offences, the complainant worked in the office of the Director of Public Prosecutions, and the appellant worked as a member of the gardaí.

8

The complainant gave evidence that in September 2011 she received a letter, purportedly authored by persons who were her neighbours. The letter was exhibited and although it contains no ink signature, is signed in typescript as being from ‘ The nice neighbours living in this area’. The complainant described it as a ‘ horrible letter’ containing ‘ insulting derogatory language’, and that it was ‘ vitriolic’. The terms of the document exhibited reveal that this characterization was not an understatement, laced as it was with profanity, insults and bile. It referred to the purported authors' delight at the complainant being absent from ‘ the road’ for two weeks while she was on holidays; it asserted that it was a widely held view that she considered herself ‘ far more superior than anyone else on the road’ just because she was ‘ a solicitor working for the state’; it expressed pity for the complainant's child for having the complainant as a mother; and it alluded to the complainant's separation from her husband, offering the view that it didn't take her husband long ‘ to see sense’. The complainant told the jury that she was shocked and distressed on receiving this letter and that she had passed it on to the Gardaí.

9

In November 2011, a letter was sent to the then recently appointed Director of Public Prosecutions (DPP). It addressed the DPP by her first name and purported to ‘ warn her’ about the complainant. The letter referred to the complainant as a ‘ corrupt evil bitch’ and asserted incorrectly that she was niece of a named TD. The complainant is related to the named TD but much more distantly so than was suggested. She is a second cousin of the TD in question. The letter asserted that the complainant was destroying the DPP's name, that she was two- faced, that she had actively lobbied politicians to block the DPP's appointment, and that ‘ she will be nice to your face but will stab you in the back’. The letter was again not signed in ink, but bore a typed signature, namely that it was from ‘ A friend’. The envelope bore a Dublin Mails Centre postmark. The complainant told the jury that she had been very upset to learn of this letter, that there was no truth in its contents, that it was ‘ just rubbish’.

10

The complainant further testified that at the beginning of December...

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2 cases
  • DPP v Doherty (1), DPP v Doherty (2), DPP v Doherty (3)
    • Ireland
    • Supreme Court
    • 24 Julio 2020
    ...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 Co......
  • DPP v Dwyer
    • Ireland
    • Court of Appeal (Ireland)
    • 24 Marzo 2023
    ...courts, saying that judges in Ireland have failed to “internalise” the jurisprudence of the CJEU in this area. 96 . In DPP v. Doherty [2019] IECA 209 (Edwards J.), this Court considered an appeal concerning the admissibility of data gathered and retained by a telecommunications service prov......

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