The “key” to the controversy over the secret accessing of telephone records is legislation making it a criminal offence for Garda members to speak to journalists, the Irish Council for Civil Liberties (ICCL) has said.
The organisation said the Garda Síochána Ombudsman Commission (GSOC) only had the power to access journalists' phone records on foot of an allegation that information about a Garda investigation had been disclosed, precisely because the Garda Síochána Act 2005 made a criminal offence of any such leak.
This provision was the brainchild of then minister for justice Michael McDowell.
Last year, GSOC’s powers were increased by the Government in a bid to make it stronger. This was done by the amending of several pieces of legislation, including the Communications (Retention of Data) Act 2011. The measure means GSOC now has all of the powers of the Garda to investigate leaks to the media criminalised by the Garda Síochána Act 2005.
However, the NUJ said it had now become clear last year’s contentious amendments had not been considered fully at the time.
Since the 2011 Act, An Garda Síochána has had the power to access telephone records in the course of an investigation. The requests are made to the main mobile phone providers. Garda members need the sanction of a senior officer to make the request. They do not need to go before the courts and seek permission from a judge.
Same powers
Because GSOC now had the same powers as the Garda after amendments by the current Government, it can also now access records in the same way, the ICCL said.
“GSOC investigators would have to get sign-off by one of the three members of the Garda Síochána Ombudsman Commission. That’s all,” it said.
