Coalition efforts to limit fallout doing irreparable harm to justice
LAWYERS have long suspected that phone calls with their clients in garda stations and prisons are monitored. The suspicion is why most solicitors and barristers have developed a practice of extreme caution in their conversations with clients in custody.
And not just in custody. The law library is replete with tales of a legendary suspicion, trespassing on near certainty, that the defence room during a particular trial was bugged.
The mild paranoia of the legal profession appears to be entirely justified in light of the new, somewhat predictable, direction the garda tapes controversy has taken.
Inmates are given a confidential phone line for conversations with a named solicitor. Calls with other approved persons, including family and associates, are recorded.
The confidential line exists because of the privilege or confidentiality that exists in all communications – telephone or otherwise – that people in custody enjoy with their lawyers. This privilege extends beyond the doors of a solicitors office or garda cell and over the wall into prisons.
It is worth repeating that solicitor-client privilege is sacrosanct in Irish law. But recent events invite serious questions as to whether that sacrosanctity is absolute or relative.
The 1993 act governing intercepts and the 2009 Surveillance Act – which grant extraordinary powers to the State to invade people's privacy and communications – are silent on the issue of solicitor-client privilege.
This doesn't mean that the laws permit conscious breaches of solicitor-client privilege. But they do assume that gardai and the prison service, who could face legal action for recording the calls in the first place, act in accordance with the Constitution and never actually access privileged calls.
It is not entirely hysterical, in these critical times for confidence in the administration of justice, to ask previously unthinkable questions.
Questions like: have various ministers or judges sanctioned surveillance of contacts between suspects and their lawyers?
Have consultation rooms in garda stations and prisons – or the offices of solicitors – been bugged in the name of state security?
Solicitor-client privilege is a vital protection for citizens in their dealings with the overwhelming power and armoury of the State.
And it will be interesting to see who the 84 inmates are: an educated guess would be that they are amongst a certain category of prisoners who also enjoy the privilege of 23-hour lock up.
The explanation offered by the State is that the calls were inadvert-ently recorded. Because some inmates had more than one solicitor representing them, but only one named with the prison service, the other conversations were inadvert-ently recorded, the explanation goes.
Explanations such as "advertence" and ignorance that have been thrown around like snuff at a wake since the onset of the multi-faceted controversy surrounding gardai are gaining as much traction as the Catholic Church's gut-wrenching theory of mental reservation.
In other words, they are increasingly devoid of any credibility.
Fine Gael and Labour are obsessed with saving Justice Minister Alan Shatter and limiting – ahead of the local and European elections – the political fallout of the controversy surrounding penalty points, whistleblowers and now the recording of calls. But in doing so, they are deepening the much graver crisis of public confidence in the administration of justice.
Governments come and go, political parties rise and fall. Permanent damage to the operation of our criminal justice system is something this electorate may never recover from.