Garda tapings could lead to an avalanche of legal challenges to convictions

Right now we know little about the extent to which telephone conversations were recorded in Garda stations or the nature of the conversations that were typically recorded. Some calls may legitimately be recorded and there can scarcely be any controversy about those. We do, admittedly, have reason to be concerned that people who contacted Garda stations about particularly personal matters may have had their calls recorded without warning or consent. That would certainly have been a breach of their right to privacy, a right which all of us are entitled when dealing with State agencies in the absence of a compelling reason to the contrary.

From a criminal justice perspective, the real nightmare scenario is the possibility that telephone conversations between suspects held for questioning and their solicitors may have been recorded. Any firm evidence of such a practice, even in isolated cases, could have devastating consequences. It would immediately engender a suspicion, well-founded or otherwise, that such conversations were being recorded on a more widespread basis. Many people convicted and sentenced over the past 30 years might well wonder if their conviction was somehow facilitated by Garda recordings of conversations which they had with their solicitors while in custody.

It is important to clarify at the outset why it is so important that suspects detained for questioning should be able to communicate in absolute confidence with their legal advisers. For a person who has never before been arrested, the experience of being detained in a Garda station for questioning can be intimidating, traumatic and stressful.

Many who have found themselves in this position have later said that they would have been willing to confess to anything just in order to regain their liberty. Once the gardaí secure a confession or admission, they will naturally make every effort to use it as part of the prosecution case at trial. The statement in question will generally be admissible unless shown to be involuntary or to have obtained in a manifestly oppressive manner or to have resulted from a breach of the defendant’s constitutional rights.

So, it is imperative that a detainee should have meaningful access to legal advice before being questioned by the gardaí. Ironically, during the past few weeks, there has been a major constitutional development in this area. Almost 25 years ago in the Healy case, the Supreme Court had held that the right of access to a lawyer while in custody was so fundamental that it should be regarded as a constitutional rather than merely a legal right. However, just a few weeks ago, in the Gormley case, the Supreme Court took another important step by holding that once a detained person asks to consult a solicitor, he should not be questioned until he has had a consultation. In reaching this decision the court was influenced by certain key decisions of the European Court of Human Rights and by developments in other countries with constitutional frameworks similar to ours.

In fact, detainees will probably soon be constitutionally entitled to have a lawyer present while being questioned. Irish courts have been equally insistent that detained people have the right to consult their lawyers in private. This means, as a number of leading decisions have held, that the consultation, whether in person or over the phone, should take place out of the hearing of members of the Garda Síochána (even though it may sometimes be within their sight). In one leading case dating from 1997, the Court of Criminal Appeal held that irrespective of whether the particular detainee had a constitutional right to phone a solicitor, once the call was made, he had a constitutional right to conduct the conversation in private.

In short, there cannot be the slightest doubt but that the right of detained people to have private consultations with their solicitors is as fundamental a due process right as there is under Irish constitutional law or, indeed, international human rights law.

Further, as the courts have constantly reiterated, the right to a fair trial, a constitutionally protected right, can have little meaning unless the pre-trial procedures, including the police investigation, have also been fair.

Every person now facing trial and who was at some point detained for Garda questioning is now entitled to inquire as to whether any conversations they may have had with their lawyers while in custody were recorded. If there are any indications of recording having occurred, defendants will be anxious to discover if any of the prosecution evidence was obtained as a result of this illegal and unconstitutional practice.

A trial court’s decision to exclude evidence on this or any other ground can make all the difference between conviction and acquittal. Few of those now facing trial may ultimately secure an acquittal on this basis, but we can certainly expect delays while the necessary investigations are taking place.

The real problem, of course, is that some who have been convicted in the past may now seek to question their convictions on this same ground. Ordinarily, convicted people are not entitled to challenge their conviction on a newly-established legal or constitutional ground once their trial is over and all avenues of appeal have been exhausted. The reasoning here is that they could have raised the argument themselves during their trial or appeal, if they had thought of it.

However, the present situation is different because it was not generally known or even suspected that there was any widespread or systematic practice of recording telephone conversations in Garda stations.

Without wishing to be a prophet of doom, I (like many others) cannot help suspecting that we could have many such challenges from people convicted in the past. The systemic consequences of an avalanche of such challenges do not bear thinking about. Of course, this may not happen. All depends on the findings of the Commission of Investigation which the Taoiseach has rightly moved to established without delay.

Tom O’Malley BL is a Senior Lecturer in Law at NUI Galway.