Assault case involving Listowel garda and colleagues helped expose tape controversy

AN assault case involving a Listowel garda and three of her garda colleagues was crucial in bringing the garda taping controversy to light and in prompting the end of the practice late last year.

Listowel native Garda sergeant Martha McEnery received a four-month suspended sentence for assaulting Anthony Holness during an arrest in Waterford in January 2010, where she was then stationed.

The case resulted in the first-ever conviction of serving gardaí for an assault in the course of their duties.

Two of Sgt McEnery's colleagues were also found guilty of offences in a trial that gained national attention in 2011.

The four gardaí were tried following an investigation by the Garda Síochána Ombudsman Commission (GSOC) into a complaint by Mr Holness that he made at Waterford Garda Station on February 8 of 2010 – one week after his arrest in the town. The complaint was forwared to GSOC which ultimately reported to the Director of Public Prosecutions on the matter, prompting the DPP to direct that the four gardaí be charged with criminal offences. The case came to trial in July of 2011.

Waterford Circuit Criminal Court heard that Sgt McEnery slapped Mr Holness on the back of his head a number of times during an interview in what she maintained in court was an attempt to get him to take his hand from underneath his body where she feared he had a weapon.

In the course of the trial, a number of character witnesses referred to the Listowel native's integrity with one garda superior saying it 'was beyond reproach'.

The jury found Sgt McEnery guilty of assaulting Anthony Holness contrary to section two of the Non Fatal Offences Against the Person Act 1997. Her colleague Garda Daniel Hickey was found guilty of assault causing harm to Mr Holness; Garda John Burke was found guilty of attempting to pervert the course of justice and attempting to impede the apprehension or prosecution of a person believed to be guilty of an arrestable offence.

The fourth garda was found not guilty.

Gda Hickey was sentenced to three years with 18 months suspended and Gda Burke received a two-year sentence with one year suspended. Sgt McEnery received a four-month suspended sentence.

The case ultimately resulted in bringing the garda taping to public attention when recordings at Waterford garda station were highlighted by GSOC in its report into the case – published on its website last June. During the trial of the gardaí, the DPP had sought to bring recorded calls between the defendants at Waterford Station into evidence, but the presiding judge ruled it inadmissable.

In the June report, GSOC noted 'the court held that the practice engaged in by the gardaí at Waterford garda station of recording all incoming and outgoing calls on a particular phone line was in breach of the relevant statute on the recording of telephone communications, which requires that at least one of the parties to a phone call has consented to its being recorded.'

GSOC suggested the Garda Commissioner 're-evaluate' the practice:

"The court ruled that the evidence obtained in those calls was inadmissible. On consideration of the ruling of the court the Garda Commissioner may wish to re-evaluate his practice regarding the recording of such calls and the consents required if it is to be permissible to use such recordings in evidence."

This report into the Waterford case played a key role in prompting the cessation of phone recordings after November of last year.