Fennelly 2 will take days, even weeks, to properly analyse and digest.
Back in September 2015, Taoiseach Enda Kenny got a justified hammering in the way Fennelly 1 (running at 288 pages) was published, just as the Six One News started and minutes before his interview began.
His claims of vindication (that he did not intend to remove then commissioner Martin Callinan) spun the headlines, though it was only a fraction of the truth (Callinan’s removal was the understandable effect of the Taoiseach’s actions).
Pity this time round that Fennelly 2 (running at 740 pages) was published only an hour earlier, at 5pm — and after the Taoiseach’s meeting in Berlin with Chancellor Angela Merkel.
But, back to the report.
Recording systems had originally been introduced in the 1980s, with the understandable need to record 999 calls. That was expanded in the mid-1990s to include main station phone numbers outside Dublin, something which Fennelly said had some justification, but pointed out it was not legal.
There was no central logic directing the system or official garda policy.
It evolved and expanded, typically determined at local levels, regarding what lines were recorded. Fennelly said local garda technicians did their best and behaved properly.
Echoing the actions of modern day whistle-blowers, some technicians even wrote to Telecommunications Section in Garda HQ — but, guess what, got no response. Fennelly said that, even in the absence of policy, these technicians exhibited “a high sense of responsibility”.
Around 2008, with a new digital system, the capacity grew further. This, Fennelly said, should have prompted a review at HQ level. None came.
Despite that, he said there was still “no evidence of any general intention” on the part of An Garda Síochána “to invade the personal privacy” of people recorded.
The commission found “almost total ignorance at the highest levels of the force” regarding the recording at divisional stations.
Fennelly said the lack of oversight was apparent in November 2013 (a month after the Ian Bailey discovery order which uncovered the system at Bandon), when the then deputy commissioner, Nóirín O’Sullivan, sought information on “what was being recorded” at Garda stations nationwide.
He said the information came as a surprise to “those who should have known about it” — officers from the Telecommunications Section at HQ, up to executive director ICT and chief administrative officer.
Fennelly pointed out that senior officers should have been aware two years earlier, with the Holness case in 2011 in Waterford Circuit Court, which highlighted the issue. “Although a number of senior garda officers up to and including the deputy commissioner operations [O’Sullivan] received reports conveying this fact, the senior levels did not properly or adequately consider the information.”
Fennelly said GSOC recommended to Callinan that he “re-evaluate the practice”, which they would have expected to have been followed up on.
The report says there was no intention to record solicitor-client phone calls and that, where it did happen, it was “inadvertent” and no evidence was found that the calls had been accessed.
But Fennelly said the Garda had no statutory power for the system: “They also infringed personal privacy rights guaranteed by the Constitution and international instruments.”
He said the system had been “beset from its beginnings by misunderstanding, poor communication, imperfect information, and a sequence of errors rather than any conspiracy”.
He said it was not approaching “deliberate abuse of power” and added: “There was no Garda system of snooping, spying, or intrusion into private life and certainly not of listening to solicitor/client calls.”
But things were different down in Bandon, where a massive investigation was conducted to find the killer of Sophie Toscan du Plantier in December 1996. Ian Bailey was their suspect. Five phone lines into Bandon station were recorded.
One conclusion by Fennelly stands out: “It is of serious concern that, in the small sample of recorded calls available to the commission, evidence is disclosed that members of An Garda Síochána 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.”
He found no evidence that these suggestions were “actually carried out”. But he said the suggestions amounted to “improper conduct”.
In relation to a complaint of assault by an alleged victim, Fennelly also disclosed disturbing, but not unprecedented, findings.
The members concerned failed to take notes or statements, tried to dissuade the alleged victim from making a formal complaint, used misleading and untrue information in that regard, and even adopted an “attitude of hostility” towards him.
Fennelly said the gardaí may have acted in this way to protect the wife of the alleged attacker, who was a witness in the du Plantier investigation.
Fennelly 2 charts the ignorant to the improper.