An appalling legal vista as a consequence of Garda taping?

Fri, Mar 28, 2014, 01:00

Any suggestion that members of An Garda Síochána may have acted illegally in securing convictions in our courts is a matter of grave national concern. It fully justifies the Government’s decision to establish a Commission of Inquiry into the recording of phone conversations at police stations over a 30-year period. Lord Denning in a British court in 1980 refused to contemplate the “appalling vista” that a serious miscarriage of justice may have occurred in the case of the Birmingham bombings carried out by the IRA, where the police had framed six innocent men. For Lord Denning a huge error of judgment was for the UK’s judicial system a deeply embarrassing judicial failure. We may well be looking at a similarly “appalling vista”, one involving serious abuses in the operation of the criminal justice system, the full dimensions of which only a commission to be headed by a retired Supreme Court judge can clearly establish.

The commission has to assemble and complete a complex jigsaw puzzle where, as of now, very many pieces appear to be missing. Of most concern is whether phone conversations between those held for questioning and their solicitors were recorded. Taoiseach Enda Kenny spoke yesterday of his worry that some of the recordings may have implications for both court cases and tribunals. Although such recordings would be illegal, and would not be admissible as evidence, nevertheless any information gleaned could help to make a successful prosecution, and conviction, easier to secure.

Those now facing trial, and others who have been convicted in recent years may well challenge whether conversations they held with their lawyers – which are confidential and legally privileged – were monitored; and whether any evidence presented in court was illegally secured. A further concern must be whether Garda members withheld material that was required to be disclosed under the process of discovery; the legal procedure used to collect evidence for a lawsuit.

Above all, these revelations have the potential to weaken trust and confidence in An Garda Síochána, which relies greatly on the public’s goodwill and support in both the prevention and detection of crime. Were conversations conducted between gardaí and the public, supplying information on a confidential basis, also illegally recorded?

As the nature and scale of the phone recordings has yet to be established, and involves a review covering three decades, a premature rush to judgment needs to be avoided. Nevertheless, there are grounds for concern that a line may have been crossed, and that the boundaries separating legal and illegal practices, between rightly recording emergency and traffic calls and wrongly recording confidential conversations between solicitors and their clients held for questioning, may have been breached.