A detective garda jailed for harassing a State solicitor by sending abusive letters is to walk free from prison following a successful sentence appeal.
Eve Doherty (51), with an address at Blackglen Road, Sandyford, in Dublin, had the balance of her three year sentence suspended on Tuesday by the Court of Appeal.
Her 2017 trial at Dublin Circuit Criminal Court heard that over an 18-month period, letters and emails were sent to the home and place of work of State solicitor Elizabeth Howlin scurrilously calling her “corrupt”, an “incompetent useless hobbit” and a “two-faced bitch”.
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 court heard that Ms Howlin didn’t know Doherty until the trial and that Doherty was then in a relationship with Ms Howlin’s ex-partner.
Doherty was found guilty by a jury of harassing Ms Howlin between September 2011 and March 2013. She had denied the charge and was acquitted on two counts of making false statements.
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.
Judge Greally noted that Doherty showed no remorse and had not acknowledged her wrongdoing.
First-time offender
Suspending the unserved balance of her 36-month sentence on Tuesday, President of the Court of Appeal Mr Justice George Birmingham said Doherty’s first 12 months in custody were “exceptionally difficult”.
As a female first-time offender of previous good character, Mr Justice Birmingham said she had served 20 months in a secure environment, the Dóchas women’s prison in Dublin.
He said experience had shown that first-time offenders of previous good character, who were male, might be expected to serve a significant portion of their sentence in an open prison. But no such facility existed in the State for women, the court heard.
Doherty’s barrister, Michael O’Higgins SC, referred to his client’s accomplishments in her career and the recognised difficulty gardaí face when serving prison sentences.
He said the absence of an acknowledgment of wrongdoing should not “set at nought” other factors that were in Doherty’s favour.
Mr Justice Birmingham, who sat with Mr Justice Patrick McCarthy and Ms Justice Isobel Kennedy, said the sentencing judge ought to have considered suspending a portion of Doherty’s sentence to incentivise her to not to reoffend.
He said the decision to impose a straight three year sentence, without any suspended element, was an error in principle.
Mr Justice Birmingham said a psychologist’s report, which detailed the “extent of paranoia and irrationality” exhibited by Doherty, was “very striking”.
Garda salary ‘terminated’
The court heard that Doherty had served 20 months in prison and, although she cooperated with an assessment carried out by the probation service, she continues to maintain her innocence.
She has been suspended from An Garda Síochána and her salary has been “terminated”, Mr O’Higgins told the court.
Mr Justice Birmingham said the court would suspend the unserved balance of Doherty’s sentence on condition she not contact or communicate directly or indirectly with the injured party or with third parties in relation to the injured party for five years. Doherty undertook to be so bound.
In an unsuccessful appeal against her conviction, Doherty’s lawyers argued that evidence had been unlawfully obtained under the Communications (Retention of Data) Act 2011.
Mr O’Higgins 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” 2011 Act.
However, rejecting this argument, the Court of Appeal said the data that was retained was not Doherty’s personal data and, therefore, her rights were not breached.
Counsel for the Director of Public Prosecutions, Kerida Naidoo SC, said the information relied upon was “not personal data at all”. None of it allowed for the accused to be identified either directly or indirectly regardless of how the data was “combined together”.
He said all of the emails were anonymous. When they were “de-encrypted”, the only information 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 the Garda.
An undercover garda went in and sat next to Doherty, or close to her. She was wearing a wig and dark sunglasses. She was followed home.
That was “real world” evidence that had nothing to do with personal data, Mr Naidoo said.
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 last December.