The calls also show Mr Bailey’s name was blackened in chats with members of the public, a journalist, and even the Revenue Commissioners.
There was also “remarkable” hostility towards a member of the public who wanted to file an assault complaint againt the husband of a woman who had provided evidence against Mr Bailey. Gardaí feared the witness might be deterred from providing more evidence if the complaint was pursued.
Mr Justice Fennelly said he found “no evidence that any of these suggestions were followed by any actual interference with or modification of evidence”.
However, he said: “It is of serious concern 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.”
The suggestions alone disclosed evidence of “improper conduct”.
The Fennelly Commission found five telephone lines into Bandon Garda Station, where much of the investigation was run from, were recorded. Of some 40,000 recorded calls found, 297 were relevant to the investigation but 166 were of no substance and others were inaudible in parts. However, a number did cause concern.
They included calls in which a detective sergeant complains to a detective sergeant that another detective who inteviewed Mr Bailey’s partner, Jules Thomas, wrote in his statement that he felt Ms Thomas was doing her best to be truthful.
In one call, the interviewing garda is mocked as “a most honest man” and the sergeant complains that his positive opinion of Ms Thomas is unhelpful, saying: “That statement has to get fucking chopped up.”
Another call reveals concern that a witness’s second statement gives direct evidence of seeing Mr Bailey in a certain place when the first only has hearsay evidence. The second is stronger but the witness makes reference in it to the earlier statement. “I will take that out so to fuck, will I?” a sergeant asks.
One call discusses an assault complaint against the husband of a woman who is useful to the investigation and whether the husband should be interviewed about the investigation and his statement predated to make it look like it took place before the assault complaint was made so that he would not have to be questioned about it. In other calls, the alleged victim of the assault is called insulting names.
Other calls reveal the detective sergeant who spoke of chopping up a statement spoke openly about confidential aspects of the inquiry and made allegations against Mr Bailey, telling a Revenue employee that sex was the motive for killing Ms Toscan du Plantier and that Mr Bailey had beaten Ms Thomas “to a pulp” a few times. The detective sergeant in question is deceased.
Officers ignorant of taping; telecoms experts unaware of illegality
Despite “blunders” and an “underlying lack of lawful authority”, the garda recording saga was not “a history of anything approaching deliberate abuse of power”, the Fennelly Commission has concluded.
It found that senior ranks were unaware of the recordings and that the telecommunications technicians who used the system “reasonably” believed that their superiors would have looked after such matters and therefore were unaware of any unlawfulness.
“There was no Garda system of snooping, spying, or intrusion into private life and certainly not of listening to solicitor/client calls,” the commission said.
Overall, Fennelly found a history of garda telephone recording “which had been beset from its beginnings by misunderstanding, poor communication, imperfect information, and a sequence of errors rather than any conspiracy”.
Nonetheless, it pointed out “it is a fact that a large volume of private telephone calls were retained in the possession of An Garda Siochána and the possibility of instances of abuse by members cannot be ruled out”.
Fennelly said it still remains the case that gardaí are unlawfully in possession of a very large volume of recorded material.
“Most of it is, no doubt, entirely innocuous,” it said. “However, the commission is aware that it necessarily includes an unknown and unknowable quantity of sometimes sensitive information about the private lives of individuals, including members of An Garda Síochána.”
Judge Fennelly found that the recording of the main telephone lines to divisional garda stations, beginning in late 1995, was not authorised by law.
“An Garda Síochána had no statutory power to operate them,” the report found. “A most surprising finding of the commission is that there was almost total ignorance at the highest level of the force of the existence of any systems which recorded non-999 lines as strikingly demonstrated by former garda commissioner Martin Callinan’s instant decision to stop them when he learned of them in 2013.”
The commission said all the former garda commissioners it heard from said they knew nothing of the start of recording of non-999 lines and it could find no one in senior management who knew the policy reason for the expansion of recording. Therefore no rules were adopted on which lines were to be recorded or who could authorise the recording of additional lines.
“Not surprisingly, given the absence of any policy guidance, additional lines, such as to the Public Office or, in one case, an Incident Room, came to be recorded,” the commission said.
“The commission is most surprised to find an almost total absence of consideration of the legal implications of recording at any stage in its history.
“The most likely explanation for this serious omission is that the senior ranks of the force were, at all material times, entirely unaware that the telephone recording was taking place.”
While the commission found no evidence that statements in the Sophie Toscan Du Plantier case had been interfered with, it said there were two instances when gardaí appeared willing to contemplate allowing or encouraging false allegations to be made or false evidence to be given.
The report said an unnamed detective sergeant considered doctoring a written statement prepared by another officer and removing detail in a second statement.
Fennelly described it as “improper conduct”.
“It is of serious concern that ... evidence is disclosed that members of An Garda Siochána 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,” it said.
Lawyers’ conversations with clients recorded ‘inadvertently’
There was no “deliberate decision or intention” on the part of the Garda Síochána to use phone recording systems in stations to tape calls between solicitors and their clients, the Fennelly report concluded.
The commission found that where recordings of such calls did occur or were likely to have occurred — Bandon, Waterford, and Wexford — they happened “inadvertently”.
The commission found no evidence of any solicitor-client calls having been “accessed” deliberately for its content. Where such access did occur it was “not done for the purpose of listening” to the solicitor’s call.
In Chapter 10 of the report, Mr Justice Fennelly said solicitor-client confidentiality was a “constitutional right” and a “fundamental requirement” of fair procedures.
He said that, notwithstanding the concerns expressed by the Law Society, when the issue emerged in March 2014, the profession itself “did not appear to be apprehensive” that their calls with clients had been recorded or listened to by gardaí.
“Though given the opportunity to do so, they did not offer evidence of such practices, or suggest instances in which they suspected that this had taken place. In the event, the profession was correct in this view,” said Mr Justice Fennelly.
He said that while commission inquiries were necessarily incomplete, they were comprehensive enough to reach conclusions.
“The Commission is satisfied that, for the entire period for which telephone recording systems have existed in the garda stations, there was no deliberate decision or intention on the part of An Garda Siochana to use those systems to record calls between solicitors and their clients,” the report said.
The commission identified three stations at which solicitor-client calls “either were or were likely” to have been recorded between 1995 and 2013: Bandon, Waterford, and Wexford.
“In each case, the evidence indicates these recordings occurred inadvertently, as a result of recording certain specific non-999 lines, for reasons unrelated to the capturing of solicitor/client calls.”
The report found no evidence that recorded solicitor-client calls being “accessed deliberately for its content”.
“Where such accessed occurred, the commission is satisfied this was not done for the purpose of listening to the solicitor’s call but was done in the course of searching for other calls,” said the report.
Mr Justice Fennelly said none of his conclusions should be taken as an exoneration of the system’s existence.
“Although, it is possible to say that, in general, no abuse of this system occurred, it is not possible to rule out improper use in any specific case,” he said. “No such case has been referred to the Commission.”
In relation to improper use generally, the commission said in Chapter 11 that it was not possible to say that information from the recordings was “never used improperly or unlawfully” — as its mere existence meant potential abuse could not be ruled out.
“Nevertheless, the commission finds it reasonable to conclude, based on the evidence before it, that no widespread or systematic, indeed probably no significant, misuse of information derived from the non-999 telephone recordings took place.”
Judge Fennelly said a “significant proportion” of gardaí, particularly in the higher ranks, appeared to have been “unaware” of the recordings.
The report said access to the recordings were controlled by members of the Telecommunications Section and, in many cases, required sanction from a superintendent.
Trial should have told authorities
Fennelly has found the 2011 trial of garda members for assaulting Anthony Holness in Waterford should have brought the recording of non-999 calls to the attention of senior gardaí.
During the trial, an issue arose with the admissibility of the contents of phone calls made by two of the accused on the night in question to the control room of Waterford Garda Station.
The judge in the trial said the recording of all incoming and outgoing calls was in breach of the Postal and Telecommunication Service Act and the telephone recordings had been “obtained in... an unlawful manner” and was not admissible.
Fennelly said news of the ruling made its way to various sections of garda headquarters.
When it was told, the Internal Affairs section sent an email which came into the hands of the then Garda Commissioner, Martin Callinan. He emailed his then Deputy Assistant Commissioner, Nóirín O’Sullivan, asking her what the legal implications of the ruling were.
Mr Callinan told Fennelly he was unaware the telephone recordings were of non-999 calls and he had asked for a report on the legal implications because he was surprised to have the calls ruled as inadmissible. Fennelly said it found no evidence that a written response was provided to Mr Callinan “at any point”.
In a report on the Holness trial, an inspector told the chief superintendent in Waterford that each control room should contain a notice that phones are being recorded and “there also may be a necessity to inform members of the public other than 999 callers that conversation is being recorded”.
The chief superintendent gave the inspector’s report to Assistant Commissioner Kevin Ludlow of the South Eastern Region, who faxed a letter and the report to Ms O’Sullivan’s office, repeating the inspector’s summary of the ruling, “thus making it clear that recordings in issue were of non-999 calls”.
Ms O’Sullivan told Fennelly she could not recall whether she read through the letter and attached report. In a further report from Mr Ludlow to Ms O’Sullivan. he referred specifically to “the operation of the 24-hour recording facility on incoming telephone lines at the communications room and public office at Waterford Garda Station…”
Fennelly said Ms O’Sullivan had “no personal recollection of seeing it, or of being informed of the fact that recording was taking place in the Public Office at Waterford as well as the Control Room”. It said she stated that references to recording non-999 lines, including the Public Office, would have raised alarm bells had they come to her attention, but also said they would not have caused the same level of alarm as the information that emerged two years later in relation to Bandon Garda Station.
Recommendations: Data collection and storage laws
The “fundamentally defective” laws which allowed garda phone recordings must be scrapped, all non-emergency files should be deleted and garda stations should be forced to carry computerised messages warning the public calls may be recorded as part plans to “safeguard” people’s rights.
The Fennelly commission has made a series of recommendations in response to the decades-long garda phone recording controversy.
In the final chapter of the detailed report into the issue, retired Supreme Court judge Nial Fennelly has said “the right of the public to know what is being recorded, for how long recordings are retained and by whom” is of paramount importance.
As a result, he said”careful consideration” should be given to imposing strict new laws to close the loophole allowing all phone calls to be recorded as the current situation occurred “without express statutory authorisation” and is potentially open to “abuse”.
Judge Fennelly said while the current situation is not strictly “unlawful”, it poses “potential implications for the privacy rights of individuals”. Specifically, Mr Fennelly said the existing Postal and Telecommunications Services Act, 1983, which governs the garda recordings is “fundamentally defective” and is in “urgent need of re-examination”.
Fennelly said “the vast majority of these (non-999 call) recordings continue to be retained without any statutory basis for no justifiable purpose” and that “it would appear there are powerful arguments for the destruction of all non-999 recordings in those circumstances”.
Among the moves Mr Fennelly has asked the gardai to consider are a new centralised archive of phone records and a more “discriminatory” approach to taping conversations.
This, he said, could include new technology allowing all calls to be recorded for the first five minutes with only emergency calls continuing to be recorded after that point, and for all records to be deleted after six months or one year “unless a positive action is taken to retain a specific recording in connection with a specific investigation”.
He said prefacing “the answering of calls to garda stations with an automatic message indicating the call is recorded” should be considered while acknowledging that this may discourage some callers.
He said while technology can help essen the scale of the problem, “it cannot eliminate entirely the possibility of misuse”.
“For this reason, it is essential An Garda Síochána adopt and implement robust procedures for monitoring the use of any telephone recording system operated by the organisation,”Judge Fennelly said.
Government insists report endorses Whelan’s advice
The Government has insisted attorney general Máire Whelan’s advice at the height of the Garda phone recording scandal has been “completely endorsed” by the Fennelly report, despite the document criticising her initial failure to act.
The report criticised Ms Whelan’s actions in 2013 and 2014, saying her failure to pass on key information to Taoiseach Enda Kenny immediately helped create the circumstances which led to then Garda commissioner Martin Callinan’s retirement.
However, despite the remark, a spokesperson for Mr Kenny said “her advice has been completely endorsed on the basis that the recordings were unlawful”.
A separate government statement said the Fennelly investigation “reinforces” calls for a “root and branch” Garda review, noting while “no widespread or systematic misuse” of information occurred, its findings remain of “great concern”.
It further said that “no evidence” has been found to show any justice minister, the Department of Justice, the attorney general, the Garda ombudsman, the data protection commissioner or the DPP were aware of the non-emergency recordings until 2014.
However, despite the position, opposition parties rounded on the Government, with Labour leader Brenda Howlin in particular warning the report “highlights systemic failings” in the force.
“This whole sorry saga reinforces my conviction that the systems and structures of Garda management are not fit for purpose and can no longer command the confidence of the public or their representatives,” he said.
Speaking during leaders questions, Fianna Fáil TD Lisa Chambers directly criticised the Taoiseach’s failure to comment on the issue while in Berlin yesterday.
“It seems exceptionally convenient this report is being published when the Taoiseach is in Germany.
“That [the non-comment] seems quite bizarre and similar to the likes of North Korea. Perhaps in the context of every other scandal the Government is presiding over, the Taoiseach has become desensitised,” she said.