Tuesday 21 October 2014

Recording may well amount to criminal offence

TJ McIntyre

Published 26/03/2014 | 02:30

The revelation that telephone calls to and from garda stations have been systematically recorded since the 1980s raises many fundamental issues for the Garda Siochana and for the wider criminal justice system.

The most grave issue is that each recording likely amounted to a serious criminal offence. Under Irish law, the recording of a telephone conversation on a public network without the consent of at least one party to the call amounts to an "interception", a criminal offence carrying a possible term of imprisonment of up to five years.

Interceptions can only be authorised by a warrant signed by the Minister for Justice, but such warrants are restricted to specific cases involving serious offences and are limited to three-month periods. There is no suggestion that any such warrant was issued in relation to this system, and it is clear that the system as a whole fell well outside the bounds of any possible warrant.

Consequently, unless gardai were notified that their calls might be recorded then a large number of criminal offences are likely to have been committed by and within the Garda Siochana itself.

This interpretation is confirmed by the 2011 case before Waterford Circuit Criminal Court, which first drew attention to the system.

In that case, four gardai were accused of involvement in an assault on a member of the public. Part of the prosecution case was a recording of telephone calls between certain of the accused gardai. However, the Circuit Court held that the recording could not be used in evidence as "the practice engaged in by the gardai at Waterford garda station of recording all incoming and outgoing calls on a particular phone line was in breach of the relevant statute on the recording of telephone conversations, which requires that at least one of the parties to a phone call has consented to its being recorded".

This finding would have been known to the Director of Public Prosecutions (DPP) at the latest in November 2011 when that case concluded, and one might have expected that it would be made known to the Garda Siochana.

It is, therefore, very surprising that the recording continued until November 2013. At best, there was a breakdown in communications between the DPP and the Garda Siochana – at worst, the practice continued despite garda management knowing that it had been found unlawful by the Circuit Court.

A second issue relates to data protection law. Data protection rules apply to the Garda Siochana in much the same way that they do to other organisations, with some statutory exceptions and modifications. Consequently, the Garda Siochana is bound by a number of core principles in relation to personal data such as telephone calls.

In particular, it must "obtain and process data fairly and lawfully", "keep it only for one or more specified, explicit and lawful purposes", "ensure that it is adequate, relevant and not excessive" and "retain it for no longer than is necessary for the purpose or purposes".

These principles are particularly important given the sensitivity of many telephone calls to garda stations.

However, the blanket recording and apparent indefinite retention of all telephone calls is in clear breach of those principles, particularly where callers were not aware that their calls were being recorded.

There will be many callers – such as victims of sexual offences or individuals passing on sensitive information about criminals – who will be rightly concerned that their calls were recorded and could be played back without their knowledge.

Third, there is a strong likelihood that this will compromise past convictions.

There is a duty on the prosecution to disclose to the defence all relevant evidence that is in its possession which tends to help the defence case, disparage the prosecution case or give a lead to other evidence. Recordings of telephone calls to garda stations would often fall within this category.

However, the secret nature of this system makes it very likely that there are past cases where the prosecution and defence were unaware that these recordings were available.

It is likely that gardai will have to engage in some form of lookback exercise to determine whether there is relevant material in these recordings, which should have been disclosed. If so, then these convictions may have to be set aside as unsafe where this evidence was not made available.

There are several other issues that will have to be addressed – such as the possible recording of telephone calls between solicitors and clients, and the recording of private phone calls of gardai – but it might be helpful to step back and look at the wider picture.

There are certainly good reasons why some calls to and from garda stations might be recorded but the secret and disorganised nature of this system suggests that these have not been fully thought through.

It's time for a fundamental reassessment of how the organisation gathers and handles information and this should be a priority for the new Commissioner, whoever that might be.

TJ MCINTYRE IS A  LECTURER IN LAW AT UNIVERSITY COLLEGE DUBLIN.

Irish Independent

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