News Analysis

Saturday 30 August 2014

Oliver Connolly is wrong – Sgt McCabe broke no laws with his secret recording

TJ McIntyre

Published 08/03/2014 | 02:30

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Whistleblower Garda Sgt Maurice McCabe
Whistleblower Garda Sgt Maurice McCabe

SECRET recordings by a party to a conversation can be powerful things. When somebody does not know they are being recorded, they are more candid in their comments. They are often prepared to reveal things they would never repeat publicly. The recording then becomes important evidence to expose inconsistencies between public positions and private admissions.

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Unsurprisingly, those who are recorded often feel threatened by this. A common response in many jurisdictions – not just Ireland – is to claim that secret recording is illegal or in breach of the right to privacy.

The former Garda Confidential Recipient, Oliver Connolly, has now taken that approach, asserting that his "constitutional right to privacy" was infringed and that garda whistleblower Sgt Maurice McCabe acted "in breach of confidence" by secretly recording and publishing details of a meeting with him. He has also said that politicians, by repeating excerpts under parliamentary privilege, have further violated his constitutional rights.

These, however, are not correct statements of the law. The starting point is that Irish law generally requires only "single party consent" for the recording of conversations – whether on the phone or in person.

Unlike some other countries, where legislation expressly requires that all parties should consent to a recording, in Ireland any one party can record the conversation. Other parties need not agree – or even be informed.

There are exceptions to this general rule. In some situations, data protection law imposes higher duties on businesses, employers and other "data controllers".

But those duties do not apply to information that an individual keeps only for their "personal affairs" – meaning Sgt McCabe's covert recording would not be covered by data protection rules.

Mr Connolly correctly states that Irish law recognises a constitutional right to privacy – and it is true that this right could apply to recordings if they related to his personal life. The carrying out of his public functions is quite another matter. There is no basis for saying that senior public officials enjoy a right to privacy in the way they carry out their duties. Public officials act on behalf of the people – not in any private capacity – and are open to scrutiny about what they do in our name.

In any event, the claim of privacy is misguided where a person voluntarily reveals information in the course of their duty. There can be no reasonable expectation of privacy in information that has been deliberately disclosed in this way, however much a person might later regret the disclosure.

Mr Connolly might superficially appear to have a better case as regards confidentiality. His former title – Confidential Recipient – reflects duties in the 2007 regulations establishing that role to "take all practicable steps to ensure that the identity of the confidential reporter is not disclosed".

But those duties are imposed to protect the identity of the whistleblower. They apply to the Confidential Recipient, the Garda Commissioner, the Minister for Justice and Equality, GSOC, and the Chief Inspector of the Garda Inspectorate – in short, to everyone other than the whistleblower himself. The confidentiality belongs to the whistleblower and can be waived by him.

In any event, even if a duty of confidentiality did apply, it would be defeated by a countervailing public interest that favours disclosure.

In this case, it is clear that there is such a public interest. Mr Connolly is alleged to have said: "If Shatter thinks you're screwing him, you're finished" and: "If Shatter thinks it's you, or if he thinks that it is told by the commissioner or the gardai, here's this guy again trying another route to put you under pressure, he'll go after you."

Such comments about the minister by the person designated to receive complaints of garda wrongdoing can only give rise to very significant concern. They would certainly be a matter of genuine interest and importance to the general public which would override any obligation of confidentiality.

One more law should be mentioned. Sgt McCabe is also subject to the Garda Siochana Act 2005, which prohibits disclosures of information which are "likely to have a harmful effect". But "harmful effect" is defined very narrowly by the legislation to mean only particularly serious and direct harms such as "facilitating the commission of an offence". The information revealed by Sgt McCabe would not come within the terms of this prohibition.

In short, there does not appear to be any support for Mr Connolly's claim that Sgt McCabe made an "unlawful recording". Rather than attempting to shift the focus to the actions of Sgt McCabe, Mr Connolly might do better to consider how he can help resolve the significant public concerns which have been raised by this episode.

TJ MCINTYRE IS A LECTURER IN THE UCD SUTHERLAND SCHOOL OF LAW

Irish Independent

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