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Convicted Garda whistleblower to go back to Court of Appeal after rejection of time extension by European Court of Human Rights.

Detective Sergeant who made protected disclosure about under-regulated phone-tracing and then served time for harassment of DPP official, is to revert to the Court of Appeal claiming miscarriage of justice. Her claims of multiple breaches of her human rights and “systemic institutional failure”, were rejected by the European Court of Human Rights in the Spring for being out of time.

By Michael Smith.

Eve Doherty is a former Garda detective sergeant whistleblower who served in the crime and security division. In 2012-13 she raised concerns about under-regulated Garda phone tracing of members of the public, not always even alleged criminals, and other wide-ranging malpractice and fraud in submissions that apparently resulted in a reduction of the abuse. Her disclosures never received replies but she is in continuing discussions with the ongoing Garda disclosures tribunal.

Acting, she told the Circuit Court, on guidelines for whistleblowers from Transparency International Ireland to avoid detection by her employer, An Garda Síochána, as a whistleblower, she had disguised herself and used an encrypted email address from a public internet facility, an internet café.

According to the Court of Appeal, Doherty was sending emails “exposing malpractice in the justice department”.

In 2013 while she was making one of these submissions anonymously about Martin Callinan – the then Garda Commissioner, the café’s owner contacted the Garda, who had been monitoring her whistleblowing.

Her house was subsequently searched by a large number of armed gardaí, a number of phones and other devices were taken and she was arrested and taken away in front of her neighbours.

The courts established that over an 18-month period from September 2011, abusive letters and emails, some of which alleged impropriety, had been sent to the home and place of work of DPP solicitor Elizabeth Howlin who had been married to Doherty’s current partner of ten years. Leaflets were also placed on cars and pillars in her neighbourhood. It was found that the harassment had been committed by Doherty.

She subsequently served an 18-month jail term for this. Her appeals to the Court of Appeal and Supreme Court (in July 2020) were dismissed in substance.

Doherty challenged several aspects of her arrest, trial, conviction and appeals and made a legal application to the European Court of Human Rights in Strasbourg, on the following principal grounds.

She claimed breaches of right to privacy, right to fair trial, right to independent and impartial prosecution, right to independent and impartial trial, and systemic institutional failures

Violation of right to Privacy

First she challenged the manner in which some of the evidence was secured against her.

The information relating to the IP address she was using was initially obtained by the Garda from cryptic server, Hushmail, in Canada. This was done informally rather than pursuant to the provisions of the 2011 Communications (Retention of Data) Act.

Eve Doherty contended that this informal approach failed to adhere to its obligations under article 8 (1) of the European Convention on Human Rights (ECHR) which demands respect for the right to respect for privacy. She said the retention of her communications by internet service providers, their disclosure to the Garda and their use in a criminal trial were not justified as they could not be considered to be “in accordance with law” or proportionate as required by article 8(2) of the ECHR.

Violation of right to fair trial

Doherty’s lawyers argued accordingly that the subsequent criminal trial and conviction were in breach of Doherty’s right to a fair trial in accordance with article 6 (1) of the ECHR.

The doctrine of the fruits of the poisonous tree demands that evidence obtained by deliberate and conscious violation of constitutional rights by the State or its agents must be excluded in the absence of “extraordinary excusing circumstances”.

Violation of right to independent and impartial prosecution

Doherty claimed that the body responsible for prosecuting the applicant, the DPP, was one in which Howlin held a high-ranking position in and that many of those involved in the prosecution of the applicant would have had close professional relationships with the complainant.

This, she said, was a violation of her right to an independent and impartial prosecution. The State should, in the unusual circumstances, have arranged for a non-state independent prosecutor.

Violation of right to independent and impartial trial

Doherty also submitted that the trial Judge in her original criminal trial in the Circuit Court, had worked for the DPP as a solicitor previously and would have had a professional relationship with Howlin; and that many or all of the judges who heard her case would be likely to have come in contact with her at some stage. She submitted that this in itself was a violation of the independence principle and that the judges should have recused themselves, though she did accept the judges at the time, on legal advice
that their recusal would delay her trial.

Systemic institutional failures

Doherty’s lawyers, KRW Law in Belfast, asserted that the background to her case was wholesale police malfeasance, criminality and breaches of due process including the targeting of police whistleblowers: of institutional corruption and the attitude of ‘official Ireland’ to breaches and police corruption and criminality. That there existed “systemic institutional failure”.

Her complaint was rejected by the European Court of Human Rights because she didn’t retrieve some of the necessary documentation from her original solicitors in time for the deadline six months after the Supreme Court decision. Her claims that she had had difficulties in obtaining documentation and that there were structural deficiencies in the Irish Criminal Justice System were not considered as she was out of time.

Meanwhile an appeal is now to be lodged to the Court of Appeal for a miscarriages application in the light of new and/or newly discovered evidence not fully appreciated or known at the time of the initial conviction, under the Criminal Procedure Act 1993 which deals at Section 2 (1) with a person who alleges that a new or newly-discovered fact shows that there has been a miscarriage of justice in relation to the conviction.

Solicitor Kevin Winters, of Belfast-based KRWLaw and Barrister David Langwallner have been briefed to act on Doherty’s behalf.