Secret Garda phone recordings 'violated citizens' human rights'
The Garda is unlawfully in possession of countless recordings of telephone calls spanning decades, some of which contain sensitive details of people's private lives, a State inquiry has found.
The secret taping of non-emergency phone calls at 22 Garda stations country-wide violated the rights of citizens under the Constitution and the European Convention on Human Rights Act, it further concluded.
The Fennelly Commission, set up to probe the phone recording scandal uncovered three years ago, said the system was operating without the knowledge of the force's top brass.
The debacle stemmed back to a "crucial misunderstanding" of technical jargon by a Chief Superintendent in 1996, who unwittingly gave the go-ahead for non-999 calls to be recorded at the main stations in each Garda division.
Judge Nial Fennelly, who headed the inquiry, said all the evidence pointed to a "great deal of confusion, amounting to ignorance, at the highest level" of the force as to what telephone lines were recorded.
Despite this apparent ignorance, the system was upgraded twice.
"The users of the system were the telecommunications technicians in the divisional stations who, reasonably believing that their superiors would have attended to such matters, were unaware of any unlawfulness," he found.
"They acted, on the whole, responsibly and conscientiously.
"There was no Garda system of snooping, spying or intrusion into private life and certainly not of listening to solicitor/client calls."
But he added that it remains the case that the force "is unlawfully in possession of a very large volume of recorded material".
Judge Fennelly finds evidence gardai prepared to alter, modify & suppress evidence in Toscan du Plantier murder case pic.twitter.com/Y8hQ1VXd3b— Brian Hutton (@magicbathtub) April 6, 2017
"Most of it is, no doubt, entirely innocuous," he added.
"However, the Commission is aware that it necessarily includes an unknown and unknowable quantity of sometimes sensitive information about the private lives of individuals, including members of An Garda Siochana."
The inquiry found that the secret recording of telephone calls could not rule out an abuse of the system. But it accepted recordings were generally made because of error and misunderstanding.
In a 742-page report into the affair, he identified three Garda stations at which telephone calls between solicitors and clients either were, or were likely to have been, recorded.
These were Bandon, Waterford and Wexford, in the years between 1995 to 2013.
But it said in each case, the evidence indicates the recordings were carried out inadvertently and not to tape the confidential conversations.
Judge Fennelly was asked to investigate the impact of the taped conversations specifically on the investigation into the murder of French film producer Sophie Toscan du Plantier.
A legal action by former English journalist Ian Bailey for wrongful arrest in the investigation in west Cork exposed the recording system.
Manchester-born Mr Bailey was twice arrested for questioning in connection with the 1996 murder but never charged. He has always denied involvement.
The inquiry found no evidence that statements in the Du Plantier case had been interfered with.
But it said there were two instances when gardai appeared willing to contemplate allowing or encouraging false allegations to be made or false evidence to be given.
The report said an unnamed detective sergeant considered doctoring a written statement prepared by another officer and removing detail in a second statement.
One involved a statement on an assault being "pre-dated".
Judge Fennelly described it as "improper conduct".
He said: "It is of serious concern that ... evidence is disclosed that members of An Garda Siochana involved in the investigation, including the officer responsible for preparing the report for the Office of the Director of Public Prosecutions, were prepared to contemplate altering, modifying or suppressing evidence that did not assist them in furthering their belief that Mr Bailey murdered Madame Toscan du Plantier."
The government said many findings are of "great concern" including the unlawful nature of the taped phonecalls, the lack of oversight and the content of some of the calls in the Du Plantier murder probe.
In a statement, Garda headquarters said it welcomed the judge's "clarity on the legal status relating to the retention of phone data".
"We will work with the relevant authorities on the recommended legislation on this matter," it added.
"There will now be a detailed examination of the report and where any organisational issues are identified they will be addressed as quickly as possible."
Labour leader Brendan Howlin said the operation of "a legally unsanctioned and unconstitutional recording system" for decades " under the noses of Garda management is quite simply bizarre".
"This whole sorry saga reinforces my conviction that the systems and structures of Garda management are not fit for purpose and can no longer command the confidence of the public or their representatives," he added.