Ian Bailey given permission by court to inspect garda recordings
Published 04/06/2014 | 18:02
JOURNALIST Ian Bailey and four of his lawyers have been given permission by a judge to inspect recordings of conversations between officers in a Cork garda station and various people, including members of the media.
Mr Bailey sought inspection of 130 recordings, and transcripts of those, for his action, due to he heard later this year, claiming damages against the State over the conduct of the investigation into the 1996 murder in west Cork of French film-maker Sophie Toscan du Plantier.
Mr Justice John Hedigan yesterday an order allowing the inspection of the recordings at Bandon Garda Station after noting concerns from four gardai that any release of the recordings should be limited to named lawyers.
Alan Keating BL, for one of those officers, retired Det Sgt Liam Hogan, objected to any inspection being granted to Mr Bailey's side but said, if the court considered inspection appropriate, it should be limited to identified persons and should not include Mr Bailey himself.
In an affidavit to the High Court, Mr Hogan said he was sent in early 1997 from Dublin, where he was attached to the Serious Crimes and Murder Squad, to assist the murder investigation and was based at Bandon until 1998.
It came as a "complete shock" to him calls made by him while in Bandon were recorded and he had never consented to such recordings, he said. Any release of the recordings or transcripts might involve a further breach of his rights.
Michael Binchy BL, for retired Det Garda Jim Fitzgerald, retired Garda Billy Byrne and Garda Mick Coughlan, also expressed concern his clients' rights to privacy may have been breached by the fact their conversations were recorded unknown to them and without their consent.
While not formally objecting to the inspection application, Mr Binchy raised issues about alleged leaking to media and others of material connected to Mr Bailey's case.
They were concerned to prevent any leaking of the material in the recordings or transcripts prior to that material being put before a jury at the hearing of Mr Bailey's action, he said.
Det Fitzgerald, in an affidavit on behalf of himself, Garda Byrne and Garda Coughlan, said he was advised there were strong legal grounds on which they could resist the disclosure application, including the right to privacy.
They had serious concerns arising from media reporting of proceedings involving Mr Bailey to date, he added.
Their difficulty was confidential documents had "alarmingly and quite improperly" appeared in the media.
He himself had been contacted at home by a number of journalists and was also referred to in the Dail by Deputy Clare Daly. All of this caused him and his family great stress.
His concern was, if the documents were released to the media before Mr Bailey's case opened, his good name "would again be impugned" before he had the opportunity to respond "in a meaningful way".
If the material was deemed admissible for Mr Bailey's action, he had "no difficulty" with that as he would be able then to fully explain his actions.
He was happy to deal with all and any allegations made against himself at the hearing "and I am confident that my good name will be vindicated, but I do not want to be subjected to 'trial by media'".
Martin Giblin SC, for Mr Bailey, said he was not conceding the gardai had a right to privacy concerning the recordings.
Leaking was not in his client's interests and publication of a range of material related to the 1996 investigation appeared to arise from that material having been put in the public domain via either the courts or the Dail, he said.
Paul O'Higgins SC, and Luan O Braonáin SC, for the Garda Commissioner and State, did not object to inspection but Mr O'Higgins said they shared the anxiety the material remain confidential prior to trial, adding some of it was before the Fennelly Commission (into recordings at a garda stations).
There should be the "greatest possible protection" against the material appearing in the public domain unless the Commission or a court decided otherwise, he said.
Mr Justice Hedigan said he did not have to decide whether the recordings breached the rights of the gardai involved.
He said he would make an order permitting Mr Bailey, his counsel Mr Giblin and Ronan Munro BL, and solicitors Frank Buttimer and Michael Quinlan inspect the material. That order was subject to the "solemn undertaking" only those parties could inspect the material, details of which would not be divulged to any other party.