Dr Eoin O’Dell, law lecturer at Trinity College Dublin, said the recording of calls made by members of the public to their local Garda station without seeking their consent was in breach of data protection legislation.
More seriously, if any of the recorded calls were between solicitors and people in custody, that would breach the rules on legal professional privilege which protect communications between legal practitioners and their clients.
“I think the Data Protection Commissioner is going to have a lot to say here,” Mr O’Dell said, pointing out that any business or organisation dealing with the public is required to inform them if their calls are being recorded
“The second thing is that a great deal of the telephone conversations through Garda stations will be between people in garda stations and their lawyers, so has there been any impact on the legal professional privilege that the lawyers and their clients are entitled to?
“More generally, it raises questions about how it was felt that this was an appropriate thing to do, for there to be routine and secret and widespread recordings and that is a very, very disturbing development.”
Dr O’Dell said while the reason for recording calls were not known, they would not be acceptable in any circumstances, whether it had yielded information vital to an investigation, or if it had tracked something as simple as a call about getting a passport form signed.
“There’s a whole range of information that they could get simply from the fact that I have applied for a passport that they could use and misuse,” he said.
He said the fact that the latest revelations followed the discovery that gardaí had misused the PULSE computer system to check for details of celebrities; the mystery over attempts to bug the Garda Ombudsman’s office; and the wider controversies surrounding the force, revealed a “cavalier” attitude within it.
“All these issues, they can all be described as individual, but this is a bigger thing now. This is cultural, this is routine. This is a routine lack of respect for individual privacy and that is an incredibly dangerous thing. It demonstrates a culture of impunity on the part of the gardaí.”
The Irish Council for Civil Liberties said it was essential that the Commission of Investigation the Government is to set up to investigate the recordings also be given powers to probe “the full spectrum of Garda accountability issues” that have arisen in recent weeks. Council director Mark Kelly said: “Today’s revelations regarding the recording of calls to and from garda stations may have grave ramifications for the administration of justice and this is the day when the rot must stop.”
The council welcomed the decision to set up an independent Garda authority.
Professor of Law at Kent University, Dermot Walsh, said the practice marked a “serious invasion of privacy” and it involved gardaí working “surreptitiously and covertly”.
The more serious issue he said is if the recording included conversations between solicitors and suspects in garda custody.
“If a client is in custody and asks to see a solicitor and the solicitor can’t get to the station and gives advice by phone — which often happens — the implications are dynamite,” he said.
The fact that Garda stations recorded all incoming an outgoing phone calls was in the public domain nine months before the latest set of allegations landed on the Cabinet table.
The Government statement, which announced the Commission of Investigation, said ministers had just “learned that a system was in place in a number of garda stations whereby incoming and outgoing calls were taped and recorded”.
The Government said the practice ended in November and was a matter of public concern.
The statement said it related to a particular legal case that was ongoing.
However, irrespective of the claims made in this unspecified case, the practice of recording calls was already known.
In June 2013, the Garda Ombudsman Commission published a report into the arrest and beating of Anthony Holness in Waterford on January 29, 2010, after he urinated on the street.
In August 2011, two gardaí were found guilty of assaulting Mr Holness and a third garda was found guilty of trying to thwart the investigation.
The subsequent ombudsman report criticised some of the behaviour in Waterford Garda Station and the co-operation of some members of the force. However, it also discussed the practice of recording calls.
The report said the judge in the case where the gardaí were convicted heard legal argument about whether a call made by one of the accused to a colleague could be used in evidence. This was because there was no evidence that either gardaí had signed a disclaimer recognising the fact that their calls may be recorded.
Critically, this comment disclosed that such calls on public lines were routinely recorded and the people making the calls were not aware of it.
“During the course of the trial the lawfulness or otherwise of the Garda Síochána at Waterford Garda Station recording incoming and outgoing calls on their public lines, and the admission of the evidence obtained during the use of such practices became the subject of protracted legal argument,” said the ombudsman.
The recorded calls were not used in that case, so their existence will not affect the safety of the convictions.
However, in its report, the Garda Ombudsman Commission went further and told the then commissioner, Martin Callinan, that he should review the practice of recording calls.
“On consideration of the ruling of the court, the Garda Commissioner may wish to re-evaluate his practice regarding the recording of such calls and the consents required if it is to be permissible to use such recordings in evidence,” it said.
At its meeting [yesterday], Government considered a new and very serious issue relating to An Garda Síochána.
The implications of this matter are potentially of such gravity that the Government has decided to set up a statutory Commission of Investigation into this matter of significant public concern. It will be chaired by a senior serving or retired member of the judiciary. In the context of ongoing legal proceedings in a particular case, the Government has learned that a system was in place in a large number of Garda stations whereby incoming and outgoing telephone calls were taped and recorded. The Government was informed of this new information at its meeting [yesterday].
As the matter is before the courts, it is not appropriate to make any further comment on the specific case. From the information available, the practice of making recordings was in place for many years and was discontinued in November of 2013. It is not yet clear why this practice was in operation. The Government is extremely concerned about this information. The Government has asked for a full, detailed report on all aspects of this matter from An Garda Síochána and the Department of Justice and Equality, so that an informed decision can be made on the legal and other consequences, with the assistance of the Attorney General. The terms of reference for the Commission of Investigation will be decided shortly, once a full report on the circumstances has been made available to the Government.
The Government also decided to agree to the retirement of Mr Martin Callinan from the position of Commissioner of An Garda Síochána. The Government thanked the Commissioner for his long and dedicated service to the State.
In accordance with the relevant provisions of the Garda Síochána Act, 2005, Deputy Commissioner Nóirín O’Sullivan has been appointed as interim Garda Commissioner. Arrangements will be put in place for an open competition for a permanent appointment to the post of Garda commissioner as soon as is practicable.
The Government reiterated its commitment to its extensive programme of reform, including the passing of the Government legislation to protect whistleblowers and to extend freedom of information.
It also reiterated its commitment to the reform of Garda oversight and accountability. This will include the establishment of an independent Garda authority, which is appropriate to Ireland’s needs and which will maintain appropriate democratic accountability to the Oireachtas. The Government will bring forward the full detail of its comprehensive reform proposals in the coming months. This will be done following the completion of the current inquiries by Judge Cooke and Mr Guerin, the forthcoming hearings by the Oireachtas Committee on Justice, Defence and Equality and the Review of the Garda Síochána which is currently under way under the Haddington Road Agreement.