Recordings ‘a breach of privacy for which State could be sued’

There is unanimous agreement among lawyers that the

improper recording

of conversations between prisoners and their legal representatives was a breach of privacy for which damages could be claimed against the State.

Ken Murphy, director general of the Law Society, the representative and regulatory body for solicitors, described as "outrageous" and "shocking" the disclosure that conversations between 84 inmates and their solicitors were recorded.

“People in custody are in an extremely vulnerable position, and their rights, recognised by the European Convention as well as our Constitution, should be protected, and every citizen has an interest in ensuring that those rights are protected,” said Mr Murphy.

The prison recordings should be investigated, "and each record must be addressed for its unique implications" by Supreme Court judge Nial Fennelly, who has been asked to look into improper recordings by An Garda Síochána.

Breach
Academic lawyers Oran Doyle of Trinity College, Dublin, and Tom O'Malley of NUI Galway, agreed the recordings were an admitted breach of lawyer-client privilege and also a breach of privacy. But they were less certain of the implications, if any, for the safety of criminal convictions.

Dr Doyle said: “Where there are steps in criminal proceedings that have yet to be taken, does what happened undermine that process? It seems to me that the courts could take one of two approaches. They could say you need to show a causal link between the breach of rights and some detriment. Here, the detriment could be the record of the conversation being made available to the prosecuting authorities, the DPP or the Garda Síochána who then use the information to pursue a line of questioning at a trial.

“If the courts took that approach, there would not be any adverse consequences, it seems to me. However, it is possible the courts would say this was just so wrong that anything that happened afterwards is tainted but I think it unlikely that a court would take such a categorical approach.” Mr O’Malley said that recording by prison authorities differed significantly to what the Garda had done.

Allegation
"The prison authorities have no role in the prosecution of trials or in appeals, unless there is an allegation that information was passed on" to the Garda or DPP. Despite this, however, there could be civil actions against the State for breach of privacy, with the State being able to plead inadvertent record in mitigation.

Practising barrister and former law lecturer at UCD, Rossa Fanning, said the successful civil action and compensation paid to journalists Bruce Arnold and Geraldine Kennedy, whose phones were illegally tapped by the government of Charles Haughey in 1982, showed a likely outcome of any actions arising from the improper prison recording.

He said the illegal recording of a conversation between a prisoner on remand prior to conviction, or post conviction but pending appeal, could be grounds to challenge a subsequent conviction or failed appeal.

The disclosure was also strongly condemned by Deirdre Malone of the Irish Penal Reform Trust who said it was a clear breach of the European Convention on Human Rights and of the Irish Constitution.