A High Court judge has made orders permitting Ian Bailey and four of his lawyers to inspect recordings of conversations between gardaí in Bandon Garda station and various people, including journalists.
Mr Bailey sought inspection of 130 recordings and transcripts for his action, due to be heard later this year, claiming damages against the State over the conduct of the investigation into the 1996 murder in west Cork of French film-maker Sophie Toscan du Plantier.
Mr Justice John Hedigan made the inspection order yesterday after noting concerns from four gardaí that any release of the recordings should be limited to named lawyers.
Alan Keating, for one of those gardaí, retired detective sergeant Liam Hogan, objected to any inspection being granted to Mr Bailey's side but said, if granted, it should be limited to identified persons and should not include Mr Bailey himself.
In an affidavit, Mr Hogan said he was sent in early 1997 from Dublin, where he was attached to the Serious Crimes and Murder Squad, to assist the murder investigation and was based at Bandon Garda station into 1998.
He said it came as a “complete shock” to him that calls made by him there had been recorded and he had never consented to such recordings. Any release of the recordings or transcripts might involve a further breach of his rights.
Michael Binchy, for retired detective garda Jim Fitzgerald, retired garda Billy Byrne and Garda Mick Coughlan, also expressed concern that his clients' rights to privacy might have been breached by the recording of their conversations without their knowledge or consent.
While not formally objecting to the inspection application, Mr Binchy raised issues about alleged leaks to the media and others of material connected to Mr Bailey’s case. They wished to prevent any leaking of the recordings or transcripts prior to that material being put before a jury at the hearing of Mr Bailey’s action, he said.
In an affidavit on behalf of himself, Mr Byrne and Garda Coughlan, Mr Fitzgerald said he was advised there were strong legal grounds on which they could resist the disclosure application, including the right to privacy. They would not oppose inspection by Mr Bailey and his lawyers, should the court deem that appropriate, as they believed it was “in the interests of candour, openness and fairness”. However, they had serious concerns arising from media reporting of proceedings involving Mr Bailey to date.
Confidential documents had “alarmingly and quite improperly” appeared in the media. He himself had been contacted at home by a number of journalists and was referred to in the Dáil by TD Clare Daly. All of this caused him and his family great stress.
If the documents were released to the media before Mr Bailey’s case opened, his good name could “again be impugned” before he had the opportunity to respond “in a meaningful way”. If the material was deemed admissible for Mr Bailey’s action, he had “no difficulty” with that as he would be able then to fully explain his actions.
He said he was happy to deal with any allegations made against him at the hearing.
‘Trial by media’
“I am confident that my good name will be vindicated, but I do not want to be subjected to ‘trial by media’,” he said.
Martin Giblin SC, for Mr Bailey, said he was not conceding the gardaí had a right to privacy concerning the recordings. Leaking material was not in his client’s interest and publication of a range of material related to the 1996 investigation appeared to arise from that material having been put in the public domain via either the courts or the Dáil, he said.
Paul O'Higgins SC, and Luan O Braonáin SC, for the Garda Commissioner and State, did not object to inspection but Mr O'Higgins said they were also anxious that the material remain confidential prior to trial, adding that some of it was before the Fennelly Commission. There should be the "greatest possible protection" against the material appearing in the public domain unless the commission or a court decided otherwise.
Mr Justice Hedigan said he did not have to decide whether the recordings breached the rights of the gardaí involved.
He said he would make an order permitting Mr Bailey, his counsel Mr Giblin and Ronan Munro, and solicitors Frank Buttimer and Michael Quinlan to inspect the material. That order was subject to the “solemnn undertaking” that details of the material would not be divulged to any other party.
It was of the greatest importance that the jury hearing the case not be contaminated by any pre-trial reporting of this material, the judge said. The media had adopted a “very responsible” attitude towards reporting Mr Bailey’s case and he was not condemning any party over alleged leaking of material, he added.