Fennelly Report: Gardaí were prepared to alter Ian Bailey case evidence

Gardaí investigating the Sophie Toscan du Plantier murder were prepared to “contemplate altering, modifying or suppressing evidence” that hindered their belief that journalist Ian Bailey killed her, the Fennelly Commission final report has concluded.

The commission, established in March 2014 to examine the circumstances surrounding the retirement of then Garda Commissioner Martin Callinan, and the taping of phone calls at Garda stations, found no evidence that statements in the du Plantier case had been interfered with.

But Mr Justice Fennelly 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. There was no evidence that those considerations were carried out.

However, the report stated in relation to the secret recording of telephone calls at Garda stations, abuse of the system could not be ruled out.

The commission found recordings at 22 stations country-wide were generally made because of error and misunderstanding.

The 742-page report identified three Garda stations at which telephone calls between solicitors and clients either were, or were likely to have been, recorded. These were Bandon, Waterford and Wexford, in the years from 1995 to 2013.

But it said in each case, the evidence indicates the recordings were carried out inadvertently, as a result of recording certain specific non-999 lines, and not to tape the confidential conversations between solicitor and client.

But it warned the findings were not an exoneration of the system, which allowed for the possibility of such abuses.

In relation to Mr Callinan, Mr Justice Fennelly found the commissioner had, several months previously, on his own initiative, caused the recording to stop immediately when he learned of its existence.

He had also formally reported the matter in writing to the Department of Justice on March 10. Through mishap, this fact was unknown to the Taoiseach, the Attorney General or the Minister for Justice until after the events of March 24. If it had been, the events which precipitated the Garda Commissioner’s retirement would not have taken place, Judge Fennelly concluded.

Overall, report concluded:

• In spite of poor communication and even blunders and of the underlying lack of lawful authority, this is not a history of anything approaching deliberate abuse of power.
• The senior ranks of An Garda Síochána were unaware of the recording.
• There was no Garda system of snooping, spying or intrusion into private life and certainly not of listening to solicitor/client calls.
• It remains the case, however, that An Garda Síochána is unlawfully in possession of a very large volume of recorded material. Most of it is, no doubt, entirely innocuous.
• However, the commission is aware that it necessarily includes an unknown and unknowable quantity of sometimes sensitive information about the private lives of individuals.

In one of the calls investigated, one Garda is recorded as threatening a member of the public with a false accusation of assault against a child.

There is also an implicit criticism in the report of the Attorney General Maire Whelan for raising such “alarm” within Government as to the potential impact of the recordings.

In a highly surprising move, Taoiseach Enda Kenny in Berlin refused to make himself available to media on the publication of the report, a move Fianna Fáil likened to “North Korea” in the Dail.

However, a Government statement sought to defend the establishment of the commission in 2014.

Regarding the position of the Attorney General, Mr Kenny’s spokesperson rejected the assertion that Ms Whelan “panicked” in 2014.

“Her advice to proceed with the commission of investigation has been completely endorsed on the basis that the recordings were unlawful,” Feargal Purcell, the Government press secretary, told the Irish Examiner.

Labour leader Brendan Howlin said the the Fennelly Report highlights in the most breathtaking way the chronically dysfunctional state of Garda management.

“According to the narrative of events accepted by Judge Fennelly, telecommunications equipment was wrongfully deployed in garda stations throughout the State simply and solely due to a misunderstanding of the technical jargon by a single chief superintendent back in 1996,” he said.

In a statement, An Garda Síochána said it “welcomes Judge Fennelly’s finding that no widespread or systematic, indeed probably no significant, misuse of information derived from non-999 telephone recording has taken place”.

The taping of phone calls began in the mid 1970s, initially just on 999 calls to Garda stations.

Due to a systems upgrade in 1995, there was a much greater capacity to record calls and it was extended to main phone lines in Garda stations.