Fennelly report: a dreadfully familiar story

Lack of official knowledge and managerial oversight is striking

Further evidence of the need for a radical restructuring of the Garda Síochána, involving administrative and cultural change, has been provided by former supreme court judge Nial Fennelly in an exhaustive review of the improper recording of private telephone conversations at garda stations between 1995 and 2013. The most striking aspect of the report is the lack of official knowledge and managerial oversight on display and it paints a picture of an organisation unprepared for public accountability.

Three years ago, Mr Justice Fennelly was asked to investigate how the recording of non-999 calls to Garda district stations had come about; what use had been made of them; if they had been legal and whether recordings had been improperly used during an investigation into the murder of Sophie Toscan du Plantier in west Cork in December, 1996 .

The only written evidence of a formal decision to upgrade the telephone system and record non-999 calls was discovered at middle management in the Garda telecommunications section. The individual concerned had not understood this alteration represented a major change in policy. Because of a series of failures involving communication, understanding and oversight its significance was not obvious to senior management until 2013. An absence of rules and protocols involving intercepts was found to be “surprising and unfortunate”.

Former Garda Commissioner Martin Callinan closed down the special facility in 2013 when it was formally brought to his attention. In 2011, however, intercepted calls involving gardaí had been rejected as evidence by a judge in a Waterford Court. The Department of Justice and Garda management appeared to be unaware of the significance. The Commission found it impossible to say what level of knowledge existed within the Garda but concluded there was no evidence of a general intent to invade the privacy of the persons recorded.

A number of tapes unearthed at Bandon garda station in connection with the murder of Ms Toscan du Plantier suggested potential misconduct by some gardaí involving the possible modification of evidence against Ian Bailey. It was this material – and evidence of telephone intercepts in other stations – that caused Attorney General Maire Whelan to raise concerns of possible criminal activity and violation of the law with Taoiseach Enda Kenny.

That, in turn, led to the resignation of commissioner Martin Callinan. On mature reflection before the Commision, the Attorney General regretted her “trenchant language”. But the concerns she raised remain valid. Unlawful activity had been going on for years and senior Garda management had been unaware. It is a story that seems dreadfully familiar.