Has taping ‘crisis’ been overplayed for political gain?

The level of shock in Government circles at “revelations” that gardaí were engaged in widespread taping of phone calls wears thin when one revisits the forgotten reports of the Morris tribunal.

It heard months of evidence detailing how members of the force were covertly recording each other, as well as suspects and persons of interest both inside stations and in other locations.

It was not unusual for a recording to occur without going through the legal channels to secure a warrant.

Mr Justice Frederick Morris concluded in a 2008 report: "It is entirely wrong that the gardaí should be recording persons . . . without any statutory guidance or regulation and without internal guidelines."

There are some 120 pages detailing bugging allegations in Garda stations, including the recording of phone calls to and from stations, in the sixth report of the Morris tribunal. However, recommendations to formalise the practice were not acted upon.

It is difficult to reconcile the tribunal’s work in this area – which involved published reports that generated saturation media attention at the time of its public hearings and also when its reports were produced – with the suggestion by Government this week that it was shocked and appalled at learning phone calls were being recorded at stations across the country.

Deep rifts
Some legal and Garda sources believe the Government has overplayed the "crisis" to distract attention from the deep rifts between the Coalition partners over Minister for Justice Alan Shatter's handling of the whistleblowers controversy and the former Garda commissioner Martin Callinan's retirement.

In his report on bugging, Mr Justice Morris noted that under the Garda’s regulation 11(5), members of the force were permitted to listen in to calls made by arrested suspects from Garda stations and to terminate them.

The regulations also provide for suspects making calls to be warned that anything they say can be used in evidence against them, though there was “no actual provision for the tape recording of visit or phone calls”.

However, the suggestion that the covert recording of phone conversations which suspects conducted with their lawyers from Garda stations may now lead to large numbers of convictions being overturned has been called into question by a number of barristers The Irish Times has spoken to.

In 2009 the Supreme Court ruled on the case of a teenager convicted of the 2003 burglary in Ballyfermot, Dublin, on the basis of fingerprint evidence.

Gardaí linked him to the crime only by comparing prints taken from the scene and matching them to prints held by the force that had been taken from him when he was 15 years old.

He was arrested on the basis of the historical prints and, once detained, a new set of prints was taken. It was these prints that were used in evidence.

Under law, if the old prints were taken by consent they could be retained on file indefinitely. If they were taken without consent, the law stipulated they should have been destroyed by the time he was subsequently arrested for the burglary.

Unlawful and unsound
His legal team argued that because he was arrested on the basis of prints whose retention could not be proven to be legally sound, his arrest for the burglary was unlawful and everything that flowed from it unsound.

However, the Supreme Court disagreed and refused to apply the exclusionary rule to the fingerprint evidence because the contentious prints were not used in evidence, though they did aid the investigation greatly.

Under that rule a court can refuse to admit certain pieces of evidence in a case if, when gathering the evidence, the accused’s constitutional rights were breached, even unintentionally.

Some legal sources believed the same principle would apply to cases where legal teams tried to use the existence of any client tapes as a means to overturn convictions.

The sources suggested that even if tapes had aided investigations and led to convictions, once the contents of the taped phone calls had not been used as evidence in court, then the convictions would most likely prove to be safe.

The Garda never uses covert recording as evidence in court, mainly because it does not want to draw the criminal fraternity’s attention to the techniques used and their extent.