Monday 23 October 2017

Court chaos looms over tapes

Michael Staines
Michael Staines

Dearbhail McDonald Legal Editor

LEGAL experts have warned that criminal and civil litigation arising out of the garda tapes controversy could "swamp the courts for years to come".

The Irish Independent has learned that some of the country's major criminal law firms have already issued letters to the office of the DPP, seeking clarification on whether phone calls involving clients in live and pending cases were taped.

It comes after the Special Criminal Court yesterday adjourned a trial against two men accused of IRA membership in what is understood to be the first court case affected by the phone-taping revelations.

The accused want to know if phone calls they had with their solicitors whilst in garda detention were recorded.

The Special Criminal Court adjourned the case until today and presiding judge Mr Justice Paul Butler also asked the DPP to make similar checks in relation to another case that is due next week.

Meanwhile, a major review of current and past cases is under way at some of the country's top criminal law firms.

Convicted persons who were jailed, as well as suspects who were arrested but not charged with offences, are among those seeking an immediate review of their cases.

Solicitor Michael Staines, managing partner of Michael Staines & Co – one of Dublin's biggest criminal law firms – said the State could face civil lawsuits from convicted persons, people arrested but not charged and even solicitors if phone calls were taped in breach of their constitutional rights.

"We are treating this very seriously and are reviewing all relevant files," said Mr Staines.

According to Dara Robinson, partner in Sheehan and Partners solicitors, the emergence of revelations as to garda recording of phone calls to and from garda stations was simply staggering.

"Depending on the extent and scale of such recordings, and how the courts may react if issues are litigated, both criminal and civil litigation could swamp the courts for years to come," said Mr Robinson, a three-time former chairman of the Criminal Law Committee of the Law Society, the ruling body for solicitors.

But even if calls are found to have been illegally recorded, evidence obtained by gardai may still be admissible in criminal proceedings.

This is because only evidence obtained in breach of a person's constitutional right is automatically excluded, although this may change because of a recent Supreme Court hearing on the so called exclusionary rule.


Last night, the Law Society said the allegation that conversations in and out of garda stations have been recorded for decades was "disturbing" and had widespread implications.

Yesterday, lawyers for two men charged with IRA membership sought confirmation as to whether telephone calls made by their clients from garda stations had been recorded.

Thomas McMahon (31) and his co-accused, Noel Noonan (34), were due to stand trial at the Special Criminal Court, but Ms Isobel Kennedy SC said that a matter had arisen "in light of recent events of which we are all aware".

Counsel for Mr McMahon said the matter "may well have consequences" for the case, but the defence did not know for certain and the issue had to be investigated.

Counsel for Mr Noonan, Mr Anthony Sammon SC, made a similar request for disclosure from the prosecution.

He agreed with Judge Butler that his client had consulted with his solicitor by telephone and that he was subsequently interviewed.

Tara Burns SC, for the State, said that all of the gardai represented in court "knew nothing about what had to come to light" in the last day and that they were completely unaware of the matter.

Irish Independent

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