Family ordeal is over as lawyer cleared of child-porn charges
Published 05/03/2006 | 00:11
SHORTLY after 6am on the morning of June 18, 2002, two unmarked Garda cars, which had earlier left Harcourt Terrace station, turned into leafy Ailesbury Road in Dublin 4, where many of the city's wealthy and influential citizens were sleeping soundly in their beds.
The cars pulled up outside No 71, the imposing residence of millionaire solicitor Eugene Fanning, who had worked for the prestigious Dublin firm of Arthur Cox and later moved on to the firm of LK Shields & Co.
Det Garda James Madden rang the intercom and the door was opened by Mrs Kathleen Fanning, last week's court was told.
Within moments her husband Eugene appeared on the imposing stairway of the large house, dressed in a shirt and underpants.
The detective explained that he had a warrant to search the family home for child pornography.
As Det Madden moved into the hallway, to present the warrant and caution Mr Fanning, the other detectives in the search party followed in behind him.
"Why don't you arrest real criminals, nobody has been hurt," Mrs Fanning said to Garda Orlaith McGrath.
The garda said she replied that somebody had been hurt, and suggested she remove her kids from the vicinity.
The two schoolgirls were crying on the stairs, according to one report, but Det Madden said he did not see them at this stage of the search. He noticed them some time later in their school uniforms, when they came into the study to get their schoolbags.
"This particular type of investigation is difficult work for us," said Garda McGrath, "You are going into the houses of people who have no previous experience of the gardai, and it is difficult for them. Sometimes we end up as the tea makers and everything else."
The gardai involved in this early morning raid were at pains to emphasise the sensitivity with which they approached their task. They were quiet at all times, they didn't raise their voices or push against the front door or give neighbours any indication that a raid was taking place.
"I am very careful. We are not there to ruin the family, and unfortunately we happened to be at their house early in the morning," said Det Madden. "It is a very, very hard thing for a family if the gardai come in looking for child pornography."
Eugene Fanning (55) put on a pair of pants in the bedroom, and then he and Det Madden went up to the third-floor attic where there was a study and storeroom.
Over the next three-and-a-half hours Det Madden and Eugene Fanning stayed mostly in the study discussing the situation.
According to the detectives, he told Mr Fanning that they had details of his credit card payments for access to two child porn sites, which were accessed five times. The information had been given to the Domestic Sexual Assault Unit of the National Bureau of Criminal Investigation by the American police.
It would later transpire that not all the information was correct, and some of the return emails for Mr Fanning were faulty, and effectively meant that he could not have downloaded information for them. It was also confirmed that there were viruses and trojans on the computer.
However, when the case was brought to court, the prosecution contended that it could still prove a case against Mr Fanning.
"My most important issue was the search and taking the computer," said Det Madden.
"If no pornography was found on the computer, then there was no case against Mr Fanning."
Last week, four years after the initial raid, the case came before Judge James Hogan at the Central Criminal Court in Dublin. Prosecutor Una Ni Raifeartaigh said that it would be her case that 27 images of child pornography were viewed on the computer between January 29, 2001 and February 27, 2002.
The images were viewed and then deleted from the folder. They went into an "unallocated space" in the computer, from where they could only be retrieved with forensic software.
"Did you discuss whether he had non-child pornography?" senior counsel Patrick Gageby, for Mr Fanning, asked Det Madden, "Images of S&M?"
"No," answered the detective.
"Other variations, bondage, anything like that?"
"No," answered the detective.
Mr Gageby suggested that when the detective questioned Mr Fanning he had not used the word "child" and that Mr Fanning was, in fact, answering questions about pornography in general, rather than child pornography in particular.
"The question you asked was 'did you access pornography?' and he [Mr Fanning] said 'I did. I have only looked at it a couple of times and then told my wife and I am going for counselling'."
"The question was: 'Did you access child pornography?'" insisted Det Madden.
At another stage of the proceedings, they discussed the question of Mr Fanning's employment with a number of well-known solicitor firms in Dublin.
"You knew there was a suggestion he had left Arthur Cox," Mr Gageby asked the detective. "I wasn't aware he left Arthur Cox due to accessing child pornography," said Det Madden.
Mr Fanning pleaded not guilty to having child pornography. After a brief opening by the prosecution, the jury was sent out for two days of legal argument, during which much of the case was outlined.
It emerged, during these exchanges, that Det Madden had taken a 10-page "Memo of Interview" from Mr Fanning during the three-and-a-half hours they were together. It was written on Garda "half sheets", and four different pens were used.
There was also at least one "amendment" which had not been initialled, and a reference to a web address called "Pick Hunter", which was a pornography site but not a child pornography site.
Mr Fanning declined to sign this memo.
His defence suggested that during the time the gardai were in his home in Ailesbury Road there was a "shadow" interview of Mr Fanning taking place, and that this information had been withheld from the court.
Outlines of letters were found on the detective's notes, which indicated that he may have written part of the word "lesbian" and parts of what could have been the name JA O'Dwyer, which corresponded to the name of a partner in Arthur Cox.
Mr Fanning's lawyers argued that the 10-page statement presented to the court by Det Madden should not be allowed into evidence, because it did not present a full picture of the exchanges between the detective and the defendant, over the three-and-a-half hours.
After the search and interview, the detectives had driven their cars into the driveway of No 71 Ailesbury Road and loaded the computer, discs and other materials that had been seized, and discreetly left the upmarket area.
The detective and the solicitor had a number of telephone conversations and appeared to be on good terms. Then the detective arranged to meet Mr Fanning at Blackrock Garda Station to formally interview him about possessing child pornography. Mr Fanning declined to answer the questions, apart from denying that he admitted accessing child pornography in the first place.
On the morning of October 17, 2002, Det Madden had arrived at Mr Fanning's house without prior notice. According to the defendant's barrister, Mr Gageby, Det Madden had asked where Mr Fanning was, and when he didn't appear immediately he rushed into the room, demanding that he should come out.
"To put it in the vernacular, as far as you were concerned he was 'acting the bo***cks'," said Mr Gageby, "And because he had been acting the bo***cks you were saying 'be careful or I will arrest you.'"
He also claimed that the detective was "harassing" Mr Fanning, saying he would go to LK Shields (the firm of solicitors for whom Mr Fanning now worked).
"You were a one-man Mutt and Jeff show," he said.
Throughout the case, Eugene Fanning sat calmly and without emotion in the dock. Sometimes he wrote notes on a legal pad. His wife and a friend sat in the public gallery.
On Friday, after hearing submissions on whether the "Memo of Interview" should be allowed in evidence, Judge Hogan said he was taking particular account of an expert witness, Det Garda Geraldine Butler, who had studied the 10-page memo and the indents made on various pages by the pen used by Det Madden.
"It is not unreasonable to deduce that some form of informal type of interview was running parallel and in tandem with the taking of the 'Memo of Interview'. After a caution was given, it appears to me that, resulting from that parallel interview, some results of that found their way into the 'Memo of Interview' required to be submitted to the jury in evidence."
Judge Hogan added that that gardai are not entitled to conduct such a parallel interview, to get the best possible result for themselves.
"The gardai are not entitled to edit, in any way, what has been told to them by the accused person. I am satisfied, on that basis, that the 'Memo of Interview' should not go before the jury."
He also ruled out any references contained in the "Memo of Interview", which made their way into subsequent interviews, as "prejudicial to the accused".
Prosecutor Una Ni Raifeartaigh then entered a nolle prosequi. However, Mr Gageby insisted that the jury should bring in a verdict, on a direction from the judge, of not guilty. The 11 remaining members of the jury (one had been excused) were called back into the courtroom, to return the verdict on a case they hadn't heard.
Mr Fanning and his wife Kathleen hugged each other. As he left the courtroom alone, Mr Fanning shook hands with the prosecutor and Det Sgt Madden. He declined to answer any questions from reporters.