News Analysis

Sunday 21 September 2014

Flagrant breach of constitutional rights could swamp courts for years to come

Dara Robinson

Published 28/03/2014 | 02:30

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THE emergence of revelations that the gardai recorded phone calls to and from garda stations is simply staggering.

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Depending on the scale of such recordings, and how the courts may react if issues arising from them are litigated, criminal and civil litigation could swamp the courts for years to come.

Consider this: communications between solicitor and client are privileged and confidential. They are protected by the Constitution. Breaches of that constitutional right also amount to a constitutional breach of privacy, and breaches of article 6 and 8 of the European Convention on Human Rights, respectively the right to a fair trial and to privacy.

Many convictions are based primarily, if not exclusively, on "confessions" made in a garda station. More frequently, in recent times, a refusal to answer questions can lead to an "inference" being drawn against an accused to adverse effect against them in a trial.

A common feature of criminal trials is an attempt by the defence to seek to exclude statements made by an accused person in custody.

Such a flagrant breach of constitutional rights, as is potentially at play, threatens the admissibility in criminal trials, both in the past and future, of evidence secured whilst an accused person was in custody.

In addition, notwithstanding the recent White decision in the Supreme Court, it is possible that all evidence secured whilst an accused is in unconstitutional detention – be it fingerprints, DNA, identification parade – will be deemed inadmissible at trial.

The potential for civil litigation cannot be underestimated either.

Normally, damages in civil claims will reflect the cost of hurt or injury to a claimant. However, there is potential for many claims to be made, asserting aggravated or exemplary damages by a state agency, arising from this egregious practice.

The scale of the recording is quite unknown. At a minimum it seems that all phone calls to district headquarters in local garda areas were likely recorded.

If it emerges, as no doubt it will, that this practice was sanctioned at a high level, the implications for the garda hierarchy, and the State as potential defendant, are indeed profound.

In reality, and coming on the heels of the GSOC "bugging" allegations, the emergence of these revelations are of an altogether different order to the GSOC issue. This practice is not sanctioned by law and completely redraws the landscape between An Garda Siochana and those with whom they engage.

Without in any way seeking to exaggerate, or to scaremonger, a hat-trick of own goals in 2014 – GSOC, the whistleblower scandal, and now bugging/recording within garda stations – has extraordinary implications for the police/public relationship.

In order to restore some confidence it is imperative that steps are taken – at the highest level – to secure all and any evidence of the practice of recording phone calls, and for a diligent statutory enquiry.

The gardai are servants of the people. Those who sanction this practice if they are still in office must be called to account. Remember Donegal? Did anybody really think the remaining 25 counties harboured no secrets?

DARA ROBINSON IS A PARTNER AT SHEEHAN & PARTNERS SOLICITORS

Irish Independent

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