Tuesday 12 November 2019

'Tapegate' inquiry an absolutely necessary distraction

The European Court of Justice has declared invalid the European Data Retention Directive
The European Court of Justice has declared invalid the European Data Retention Directive
Dearbhail McDonald

Dearbhail McDonald

THE cynic in me thinks that the decision to set up an Intercept Inquiry – The Tape Tribunal, anyone? – is a "look at the birdies" technique to distract attention away from the garda whistleblower controversy which contributed towards the resignation of former Garda Commissioner Martin Callinan.

It may well be a shrewd political tactic by Taoiseach Enda Kenny to deflect attention away from under-fire Justice Minister Alan Shatter.

But as birdies go, the longstanding and suspected (but not formally admitted) practice of recording and retention of phone calls in garda stations deserves close and urgent scrutiny.

It will come as a surprise to suspects, rank-and-file gardai, well-meaning tipsters and touts alike that their phone calls to and from garda stations may have been recorded without their knowledge or permission.

The phone calls between suspects in custody and their solicitors are sacrosanct. Solicitor-client privilege is protected by law and any violation of these custody regulations would be truly scandalous – if not a criminal conspiracy.

It comes as no surprise that gardai tape 999 calls.

But what about blue-on-blue calls between gardai on station lines and phone calls between gardai and members of the public?

Gardai and civilian staff are also employees and are entitled, as employees, to be told if their calls are being recorded.

We are all used to the "calls are being monitored for training and verification" jingle spouted out by banks and other commercial entities – a most frustrating form of consent.

But it is the job of the gardai to investigate and prevent the commission of crime.

That is why there are dedicated surveillance laws in place to allow them to carry out sensitive work.

Gardai are also explicitly allowed to tape people's phone calls to investigate and prevent serious offences.

This type of taping requires authorisation from the Minister for Justice and the operation of these intercepts is overseen by the President of the High Court to safeguard members of the public.

Since 1993, 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".

Phone interception is a criminal offence carrying a possible term of imprisonment of up to five years.

This raises questions as to whether gardai broke the law when they recorded calls in various stations from the early 1990s.

Because of the 1993 law, it is arguable that gardai, like any other citizen, can tape a phone call as long as there is so-called single-party consent.

But it is sickening to think that confidential calls to gardai were recorded on a widespread basis without the force telling us.

And it is most telling that the existence of this practice has only been admitted now.

One can imagine the huge benefit, from a covert surveillance perspective, of retaining certain calls – more than 2,400 have been retained.

Such calls may have been intelligence gold for investigators and much fruit may have been derived from these telephone trees.

But what about the admissibility of such calls in court? The controversy also forces us to ask whether they have adversely affected trials and convictions in the past.

We know that in at least one case involving the prosecution of three gardai, evidence was excluded following a complaint, by one gardai, that she did not know her phone call to a co-accused was being recorded.

Phone traffic has also proved a major issue in the long-running civil action against the State by murder suspect Ian Bailey. Mr Bailey has sought the disclosure of a broad range of documents, including phone traffic, as part of his damages actions for alleged wrongful arrest.

He also claims that there was a conspiracy by the State to prosecute him.

Did the threat of a non-compliance motion in the Bailey case force the State's hands in respect of phone recordings?

It may take some time for the full implications of tapegate to unfold.

Irish Independent

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