Director of Public Prosecutions v Doherty

Factual and Procedural Background

This appeal concerns the conviction of the Appellant by a jury on 1 August 2017 for a single count of harassment contrary to section 10 of the Non Fatal Offences Against the Person Act 1997. The Appellant was acquitted of two counts of making a false statement contrary to section 12 of the Criminal Law Act 1976. The charges arose from a campaign of alleged harassment directed at the Complainant, who worked in the office of the Director of Public Prosecutions, while the Appellant was a member of the Gardaí.

The harassment involved a series of letters, leaflets, and emails containing defamatory and insulting statements about the Complainant, including incorrect assertions about her family relations and professional conduct. Evidence was presented that some of the emails were sent from various hushmail accounts using IP addresses linked to an internet café owned by a third party. The Appellant admitted being present at that internet café on one occasion when an email concerning a Garda Commissioner was sent from one of these accounts.

The prosecution case was largely circumstantial, linking the Appellant to the harassing communications through witness testimony, data obtained from telecommunications providers under the Communications (Retention of Data) Act 2011, and data obtained from a Canadian internet service provider pursuant to a mutual assistance request. The Appellant was convicted of harassment and sentenced to three years imprisonment, backdated to 30 October 2017. The appeal challenges both the conviction and sentence on multiple grounds.

Legal Issues Presented

1. Whether evidence obtained under the Communications (Retention of Data) Act 2011, given the invalidation of Directive 2006/24/EC by the Court of Justice of the European Union (CJEU), should have been excluded as inadmissible.
2. Whether evidence comprising data gathered and retained by a telecommunications service provider outside the State and the European Union, obtained by lawful means abroad and provided pursuant to mutual assistance, was properly admitted.
3. The correct interpretation of section 10 of the Non Fatal Offences Against the Person Act 1997, particularly the meanings of "watching" and "besetting" in the context of harassment.
4. Routine evidential and procedural issues including adequacy of proof of provenance of documents, admissibility of non-expert opinion evidence, and directions to the jury on counts of which the Appellant was acquitted.

Arguments of the Parties

Appellant's Arguments

• The evidence obtained under the Communications (Retention of Data) Act 2011 was unlawfully obtained because the Directive underpinning the Act was declared invalid by the CJEU, and thus should have been excluded.
• The evidence obtained from Canada was improperly admitted as there was insufficient evidence about how the data was held, accessed, and protected under Canadian law.
• The trial judge erred by failing to exclude evidence of certain handwritten and typed documents due to lack of proof that they were authored by the Appellant.
• The trial judge misinterpreted the statutory definition of harassment, particularly the terms "watching" and "besetting," which should be given narrow legal meanings derived from earlier legislation.
• The trial judge erred in instructing the jury that they did not need to be satisfied that the Appellant committed all the alleged acts to convict on the harassment charge.
• The Appellant's rights to privacy were breached concerning the email sent from the internet café, and evidence relating to this should have been excluded.
• The trial judge erred in refusing to direct acquittal on the false statement counts and in refusing to discharge the jury following prosecuting counsel’s closing speech referencing evidence not adduced.
• The admission of evidence from non-expert witnesses who prepared presentations facilitated unfairness.

Respondent's Arguments

• The data obtained under the Communications (Retention of Data) Act 2011 was admissible despite the CJEU ruling, as the Act was in force at the time and the requests were made before the Directive was invalidated; any illegality was inadvertent and not culpable.
• The data obtained from Canada was lawfully acquired pursuant to a court order and mutual assistance request, and there was no evidence of breach of the Appellant’s rights.
• The data retained by telecommunications providers did not constitute personal data relating to the Appellant, and thus her privacy rights were not engaged.
• The terms "watching" and "besetting" in section 10 of the 1997 Act should be given their natural and ordinary meanings, not narrow legal meanings from older legislation.
• The trial judge’s direction to the jury on the harassment count was legally sound and did not mislead the jury.
• The evidence of the email sent from the internet café was admissible as the Appellant’s right to privacy was curtailed given the ongoing criminal investigation and her status as a person of interest.
• The evidence from non-expert witnesses was properly admitted as it facilitated presentation of evidence without usurping the jury’s role.
• The trial judge was correct not to direct acquittal on the false statement counts, which were properly left to the jury’s assessment of the evidence.
• The trial judge adequately addressed the issue arising from prosecuting counsel’s closing speech, and refusal to discharge the jury was not erroneous.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully examined the admissibility of evidence obtained under the Communications (Retention of Data) Act 2011 in light of the CJEU’s invalidation of Directive 2006/24/EC, which the Act partially transposed. While acknowledging the strength of the Appellant’s argument that the legislation was contrary to EU law, the court chose to assume without deciding that the Act was unlawful and that the data retention and access lacked lawful authority for the purpose of assessing admissibility.

The court applied established Irish law principles distinguishing between evidence obtained illegally and evidence obtained in breach of constitutional rights. It recognized the more restrictive exclusionary rule applies where constitutional rights are breached, but the Appellant failed to demonstrate that the data in question was personal data relating to her or that her constitutional or Charter rights to privacy were infringed in a manner sufficient to engage that rule.

The court accepted the trial judge’s finding that the data retained and provided by telecommunications providers related to the internet café subscriber and not to the Appellant personally, and thus did not constitute personal data under EU definitions. Consequently, the Appellant’s privacy rights were not breached by the retention or disclosure of this data.

In exercising discretion under the less restrictive exclusionary rule applicable to illegally obtained evidence without constitutional breach, the court held the trial judge was correct to admit the evidence. The data had been retained and accessed under domestic legislation in force at the time, with requests made prior to the Directive’s invalidation, and any illegality was inadvertent and not culpable.

Regarding evidence obtained from Canada, the court found it was lawfully obtained pursuant to a Canadian court order and mutual legal assistance, with no evidence of breach of the Appellant’s rights.

The court also addressed the interpretation of statutory terms in section 10 of the 1997 Act defining harassment. It rejected the Appellant’s argument that "watching" and "besetting" should be given narrow legal meanings derived from older legislation, holding instead that these terms should be given their natural and ordinary meanings in the context of the statute. The court found the trial judge’s approach to be legally correct and consistent with statutory interpretation principles.

Other grounds concerning the admission of handwritten and typed documents as circumstantial evidence, evidence from non-expert witnesses presenting comparative analyses, the trial judge’s directions to the jury, and the handling of prosecuting counsel’s closing speech were all examined and upheld as correct and fair.

The court emphasized the public interest in admitting relevant evidence and found no unfairness or legal error warranting reversal of the conviction.

Holding and Implications

The appeal against conviction and sentence is DISMISSED.

The court upheld the trial judge’s rulings on the admissibility of evidence obtained under the Communications (Retention of Data) Act 2011 and from Canada, finding no breach of the Appellant’s constitutional or Charter rights sufficient to exclude such evidence. The natural and ordinary meanings of statutory terms defining harassment were affirmed. The trial judge’s directions and evidential rulings were found to be sound.

The decision results in the maintenance of the Appellant’s conviction and sentence. No new precedent altering existing legal principles was established; rather, the court applied established law to the facts and issues presented.