Two gardaí jailed over assault in Waterford

Tue, Nov 8, 2011, 00:00

TWO FORMER gardaí have been jailed and a garda sergeant given a suspended jail sentence following an incident in which a civilian was assaulted by officers during an arrest in Waterford last year.

Daniel Hickey (29), who resigned from the force following his conviction in August, was sentenced to three years with 18 months suspended for assault causing harm to Anthony Holness on New Street in Waterford on January 29th, 2010.

Sgt Martha McEnery (42) was sentenced to four months but had the entirety of the sentence suspended after she was convicted of a lesser charge of assaulting Mr Holness (38) on the same occasion.

John Burke (39), who also resigned following his conviction, was sentenced to two years with 12 months suspended for attempting to pervert the course of justice by diverting CCTV cameras away from the assault on Mr Holness.

The prosecution of the three, along with that of a fourth officer who was acquitted of assault, followed an investigation by the Garda Síochána Ombudsman Commission.

The three were convicted by a jury of five men and seven women following a four-week trial at Waterford Circuit Criminal Court last July and August.

Yesterday Judge Leonie Reynolds imposed sentence.

She said she accepted that gardaí had a difficult job to do and were entitled to use reasonable force in the course of an arrest and that this entitlement was not just an academic concept but was enshrined in law.

And while she accepted that it was not always easy to assess what was reasonable force, she believed that this was a case where it clearly was not used as there was “clear blue water” between reasonable force and what happened to Mr Holness.

Judge Reynolds said that the ferocity of what Mr Holness has been subjected to was clearly evident on CCTV footage of the incident and this was notable from the “audible collective intake of breath by the jury when they first saw it on CCTV”.

She said Mr Holness’s behaviour on the night when he stopped to urinate in a shop doorway on his way home after a night out and later when he resisted arrest was less than exemplary, but he had admitted as much early in his evidence to the court.

She recalled how the CCTV footage showed then Garda Hickey strike Mr Holness a number of times on the head after he was pepper-sprayed and how, when he was lying on the ground, Hickey kicked him on the head – all captured on CCTV.

“It was blatant criminality, an act of thuggery,” said Judge Reynolds.

She noted the actions of Hickey and of McEnery, when she slapped Mr Holness on the back of the head, “were wholly unjustifiable and disproportionate to the circumstances they faced”.

The contemporaneous action of then Garda Burke who was in the control room in Waterford Garda station and who diverted the CCTV camera away from the assault “added a sinister and disturbing dimension to the case”, she said. Judge Reynolds said she accepted that Burke’s actions were not premeditated in that he reacted to the situation unfolding before him. But the CCTV cameras had been installed at taxpayers’ expense to aid in the detection of crime.

However, Burke, by diverting the camera away from the assault at crucial moments, had thwarted that purpose and that amounted to an interference with the administration of justice.

“It was a catastrophic error of judgment” on Burke’s part, possibly “rooted in a misguided sense of loyalty” to his colleagues and it proved “an ill-founded decision which has had life-changing consequences for him”, she said.

Imposing the three sentences, Judge Reynolds said it was most unfortunate that the actions of the three officers on the night had left their respective careers in An Garda Síochána in tatters.

“However, it is fortunate for all three that the injuries suffered by Anthony Holness were not more serious and that they didn’t find themselves before another court,” she said as she refused leave to appeal to all three defendants.