Sunday 17 December 2017

Fennelly report: 'Almost total ignorance' among garda management about taping of calls, but no deliberate misuse of recordings

The Fennelly Commission said there had not been a widespread abuse of the system over the secret recording of telephone conversations at Garda stations
The Fennelly Commission said there had not been a widespread abuse of the system over the secret recording of telephone conversations at Garda stations

Kevin Doyle and Philip Ryan

An inquiry into the taping of phone calls at garda stations has said there was an "almost total ignorance" at the highest levels of garda management about the practise.

The Government says many of the findings by Mr Justice Niall Fennelly are of “great concern”, including in relation to the unlawful nature of the recordings, lack of effective oversight and procedures.

The report states: “A most surprising finding of the Commission is that there was almost total ignorance at the highest level of the force of the existence of any systems which recorded non-999 lines as strikingly demonstrated by former Commissioner Callinan’s instant decision to stop them when he learned of them in 2013.”

It also found that “probably no significant misuse of information” from the calls.

Niall Fennelly
Niall Fennelly

Particular mention is made of the recording of  relation certain telephone recordings relating to the investigation of the death of Sophie Toscan du Plantier.

The Government also noted that the Commission found no evidence of knowledge of the recording of non-999 telephone calls on the part of relevant Ministers for Justice, the Department of Justice, the Office of the Attorney General, the Chief State Solicitor, GSOC, the Data Protection Commissioner or the Director of Public Prosecutions.

The report will now be fed into the review of An Garda Siochana which is being established by the Government on the back of the breath test scandal.

Tánaiste Frances Fitzgerald will also consider, in conjunction with the Policing Authority, what short-term measures may be required in terms of legislation, technology or practices and procedures in response to the findings and recommendations of the Report.

The Commission suggested all non-999 telephone conversations secretly recorded by gardai over the course of three decades should be destroyed.

However, High Court orders for discovery, such as the request made in the Ian Bailey case, should be considered before the recordings are destroyed.

It also suggested legislation might have to be drafted to legally destroy the tapes.

The landmark report found there was no “justifiable purpose” to retain these recordings despite suggestions there may be information on the tapes relevant to the “guilt or innocence of an individual”.

The report said it was “entirely speculative” that these recording could be used in future prosecutions or trials.

“The vast majority of these recordings continue to be retained without any statutory basis and for no justifiable purpose. It would appear to the Commission that there are powerful arguments in favour of the destruction of all extant, non-999 recordings in those circumstances,” it stated.

Mr Justice Fennelly said there was no deliberate misuse of this information by gardai but warned the continued retention of the records mean that a “potential for abuse still exists”.

“Although the DAT recordings are now stored securely in Garda Headquarters and the possibility of someone accessing those recordings for improper purposes is remote, the safest way to eliminate the possibility of abuse would be to destroy the recordings,” the report stated.

However, it added that discover obligations placed on gardai during the Ian Bailey case must be “considered carefully” before the destruction of any the recordings.

“The Commission recommends, subject to any Court Order or other lawful authority or legal obligation, including the obligation to make discovery, that early consideration be given to the destruction of all unlawfully recorded information derived from the Garda telephone recording systems, whether in audio, written or other form,” it added.

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