Q&A: What are the legal implications?
Is it illegal to record a phone call?
Not necessarily. Under Irish law, it is not illegal for a person to record a call if he/she is party to that call. However, under the Postal Packets and Telecommunications Messages (Regulation) Act 1993, recording a phone conversation between other people without their authorisation amounts to interception – a serious criminal offence.
What form of authorisation is needed?
The 1993 Act permits the recording of phone calls provided that either the caller or the receiver consents to it. This is why, for example, when you ring your bank or insurance company, an automated voice informs you that you may be recorded. No breach of the law occurs in that situation as you are deemed to consent to the recording if you stay on the line. If there was no such warning when calls were made to or from Garda stations, one legal source says, a breach of the Act may well have occurred.
In what circumstances can gardaí legally intercept calls?
The Minister for Justice can give a three-month authorisation, by written warrant or orally in exceptionally urgent cases, but only for the purposes of a specific criminal investigation or in the interests of the security of the State. Specific conditions, set out in legislation, must be met. The Act provides for applications to be made by the Garda Commissioner or the chief of staff of the Defence Forces in writing. The application goes to a nominated officer who considers it at first instance and then passes it up to the Minister. Such authorisations are subject to review by a High Court judge.
What is the penalty for unlawfully intercepting communications?
It’s a serious offence. On summary conviction, the fine can be up to €800 and/or imprisonment for 12 months. On indictment the fine can be up to €50,000 and/or imprisonment for five years.*
What about data protection law?
The Data Protection Acts state that a person’s information should only be collected lawfully, fairly, for specific purposes only, and that it should be retained for no longer than necessary for those purposes. Those principles would be breached if gardaí were engaged in blanket recording and retention of calls, particularly without informing the individuals concerned.
What if gardaí were recording conversations between suspects and their lawyers?
Such discussions have legal privilege and could never be used as evidence in court. If phone calls between solicitors and their clients were being listened to, it would come close to “perverting the course of justice”, one legal source said.
Could there be implications for cases involving disclosure?
Yes. Gardaí and the Director of Public Prosecutions have an obligation to furnish to defendants any material that is of relevance to their case and the courts have interpreted this broadly, one lawyer said. If a person called to a Garda station to speak to a garda about a case, that communication – if recorded and retained – should be the subject of the normal disclosure procedures. A criminal lawyer says this week’s revelations could lead to many applications for disclosure of such calls, with potentially wide-ranging implications for live or pending cases.
Could convictions be set aside?
One of the Government’s concerns is that live cases could be jeopardised or that convictions could be deemed unsafe as a result of the recordings. For example, if a person could show he/she was convicted in circumstances where gardaí were in possession of secretly recorded information that tended to help the defence but did not disclose that information, a conviction could be set aside.
*This article was edited on Thursday, March 27th, 2014