The apparent contradiction in her evidence to the commission adds an extra layer of questions over the phone tapping issue and alleged failures of communication that meant garda commissioner Martin Callinan and Justice Minister Alan Shatter were unaware of the scale and seriousness of what had taken place.
Attorney general Máire Whelan initially told the Fennelly Commission the garda phone-tapping scandal was “criminal activity” and in “complete violation of the law” before giving a substantially modified view.
The 300-page report into the crisis detailed the apparent U-turn from Ireland’s most senior legal expert, raising fresh concerns over the controversy at the centre of the investigation over which it said Justice Minister Alan Shatter and garda commissioner Martin Callinan were left in the dark.
On page 260 of the document, Mr Justice Nial Fennelly said when Ms Whelan first gave evidence she was clear that “decades of recording phonecalls in and out of Garda stations [was] in complete violation of the law, with total disregard for the requirements of ministerial authorisation and of the rights of the citizen”.
She said “this was criminal activity being engaged in by An Garda Síochána” and a “most grevious matter”.
However, in a written submission on May 22, she presented what the report said was a “substantially modified” view in which she said her previous “trenchant language” had left the commission with an “erroneous impression” as she only meant “potential illegality”.
According to the report, Mr Callinan was first informed of a recording issue on November 8, 2013, but believed this was related solely to Bandon Garda station and the case against Ian Bailey over the Sophie Tuscan du Plantier murder.
The then garda commissioner subsequently contacted Garda headquarter’s head of legal affairs, Ken Ruane, as he “believed the recording was unlawful” and could have implications for future cases.
Mr Callinan said when he became aware of the existence of the tapes he issued an order that such recordings should “immediately cease”.
However, he was not informed of three internal Garda ICT reports which began between November 18-25, 2013, into the widespread recording of phonecalls until March 2014, when the issue played a role in his retirement. On November 11, 2013, Mr Callinan consulted the attorney general’s office to raise his concerns over the legality of such recordings.
He said he passed this view on to the secretary general of the Department of Justice Brian Purcell on November 22, 2013, with the expectation it would be forwarded to then justice minister Alan Shatter. However, Mr Purcell told the commission he has“absolutely no recollection” of such events.
In his evidence to the commission, Mr Shatter said he met the garda commissioner on several occasions for official functions between November 2013 and March 2014. However, he said he was never informed of the case or the separate nationwide recordings taking place until the scandal erupted in March 2014.
Mr Purcell had received a letter outlining the scale of the controversy on March 10, 2014, which had been intended to be provided to Mr Shatter urgently. However, the report confirmed previous revelations that this document was not handed to the then minister until his return from a St Patrick’s Day trip to Mexico two weeks later, an issue Mr Purcell “honourably” accepted was due to the “personal crisis” of the death of his mother.
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