Minister Frances Fitzgerald stated in the Seanad last week that she is “committed to delivering a sea change in the oversight of policing.” At the core of the reform package which will supposedly deliver this is the Garda Síochána (Policing Authority and Miscellaneous Provisions) Bill 2015 and the soon to be created Policing Authority. She has stated that this body Continue reading “Politics and The Policing Authority”
It has come to light in the course of recent days that there has been a practice in a “large number” of garda (police) stations allowing for the recording of telephone calls, both incoming to and outgoing from the station. Information is emerging in a piecemeal fashion but it seems that this may have been going on, in one form or another (while “#gardatapes” has taken off on Twitter the modern incarnation of the practice seems to have been digitised), from the 1980s up until November 2013. It emerged yesterday, in the course of a current prosecution in the Special Criminal Court, that recording took place on the telephones of 23 divisional garda stations as well as at Garda Headquarters and Harcourt Street in Dublin. The matter is so serious that the government is setting up a statutory Commission of Investigation, to be chaired by a senior current or retired judge. The Irish Times has a useful section on the emerging crisis here.
The revelations are shocking and the potential impact on criminal cases both past and present gives rise to grave concern. This post seeks to consider the potential impact on previously decided cases if calls between suspects held in garda custody and their solicitors were subject to the recording. As such, this is a worst-case scenario consideration of the emerging crisis. The substance or content of the recorded calls is yet to be clarified. It is possible that calls between suspects and solicitors were not included but this, on a practical basis, seems unlikely. The current indication seems to be that all calls in certain stations were recorded, regardless of the parties involved, and, indeed, without the consent or knowledge of such parties. Thus, it seems likely that calls between suspects and solicitors were indeed recorded. This would amount, in and of itself, to a breach of the suspect’s rights to privacy and to private access to pre-trial legal advice. It was clearly established in People (D.P.P.) v Finnegan (unreported, Court of Criminal Appeal, July 15, 1997) that the constitutionally protected right to pre-trial legal advice (previously established in People (D.P.P.) v Healy  2 I.R. 73 and more recently considered and clarified in D.P.P. v Gormley and White  IESC 17) included the right to consult privately with one’s retained solicitor. In Finnegan, Barrington J in the Court of Criminal Appeal stated clearly (at p.42) in relation to a suspect telephoning his solicitor that “…once the telephone call is allowed, the detainee has a constitutional right to make that call in private.” Secret recording of such a call by the Garda Síochána then would clearly amount to a breach of constitutional rights. What consequences are likely to flow from such an event? There are a number of possible scenarios, not limited to the following:
1) The telephone conversation was recorded but nobody ever listened to it and the suspect was convicted at trial.
2) The telephone conversation was recorded and a garda listened to it but nothing of interest arose and the suspect was convicted at trial.
3) The telephone conversation was recorded, a garda listened to it, the content of the conversation assisted the gardaí in furthering the investigation and led to other evidence against the suspect which was presented at trial resulting in conviction.
4) The telephone conversation was recorded, a garda listened to it, the content of the conversation assisted the gardaí in furthering the investigation and led to other evidence against the suspect which was not presented at trial as the suspect pleaded guilty because of the existence of such evidence.
In each of these scenarios there has been a breach of constitutional rights and indeed a breach of the law relating to the interception of communications. Does each such case now need to be revisited and retried? Does the unconstitutionality mean that these cases ought not to have proceeded originally or that evidence central to the conviction ought not to have been admitted on the basis of the exclusionary rule?
The exclusionary rule, strict as it is, usually requires the existence of a causative link between the breach of rights and the impugned evidence. In the case of O’Brien v D.P.P.  2 I.R. 206, for example, where an initial breach of the right to legal advice had occurred and was later cured by the arrival of a solicitor and consultation with the suspect, statements made at garda interview during the breach were excluded from evidence while those provided at a later interview were admitted as there was said to be no ongoing causative link between the earlier breach of rights and the evidence obtained in the course of the later interview. So, if it can be shown that Scenario 3 has occurred, there would be a clear causative link between the breach of the rights to privacy and legal advice and the obtained evidence. If this had been known at the time of the original case the evidence ought to have been excluded and therefore the conviction should be deemed unsafe and a retrial ordered. Of course it may be the case that no successful retrial is possible in the absence of the relevant evidence.
But what of Scenarios 1 and 2? There is not a specific causative link between the breach of rights and any evidence used at trial, but there has still been a breach of rights. It is possible to view the law as still requiring the quashing of convictions and return for retrial in those scenarios. If the view is taken that the covert recording of telephone conversations between a suspect and his or her solicitor in and of itself amounted to such a breach of rights that the suspect was then held in unlawful custody, then anything that occurred from the point of the recorded call onwards, including the trial itself, is tainted by unconstitutionality. This, in fact, was alluded to in Finnegan, where Barrington J in the Court of Criminal Appeal stated (at p.42) that “…there was a breach of Mr Finnegan’s constitutional rights when he was denied private access by telephone to his solicitor. From that point on he was in unlawful detention. No evidence was adduced to show that this unlawful detention came to an end at any particular time …” It is possible then that even if no-one ever listened to a recording of a telephone conversation between a suspect and a solicitor, a breach of constitutional rights still occurred which would deem the entire process from that point on unlawful.
And what of Scenario 4, where no trial has occurred but a suspect pleaded guilty on the basis of evidence which could now be linked back to the content of an unconstitutionally recorded telephone call? Could such a case be revisited? Usually guilty pleas cannot be revisited, but, to be frank, there is no precedent for a mess as potentially monumental as this.
In recent times the Supreme Court has examined the retrospective effect of decisions of unconstitutionality on previously-decided cases and has ruled, on pragmatic grounds as much as any other, that findings of unconstitutionality have only limited effect on previously-decided cases. In A v Governor of Arbour Hill Prison  4 I.R. 88;  IESC 45, for example, Murray CJ stated that “[t]he Common Law has never conceived as consistent with any ordered administration of justice that previously decided and finally determined cases could necessarily be set aside or re-opened in the light of a new precedent…” This dicta was also influential in the cases that followed the finding of unconstitutionality in Damache v DPP  IESC 11, including People (DPP) v Cunningham  IECCA 64, People (DPP) v Kavanagh  IECCA 65, and People (DPP) v Barry O’Brien  IECCA 68 (see my discussion of these cases here). In People (DPP) v Cunningham  IECCA 64, Hardiman J., stated that “…the first duty of the Courts is to provide redress to those whose constitutional and legal rights have been infringed” but further noted that “there may also be circumstances where this is simply not feasible or practicable”. He then listed a number of examples of crises which might have had “catastrophic effects” had a finding of unconstitutionality allowed for previously-decided relevant cases to be revisited:
“The Courts could not … have ordered the re-running of past Dáil elections (the decision in McMahon v. Attorney General  I.R. 69 with regard to the inadvertent breaching of the secrecy of the ballot in Article 16 notwithstanding) or ordered the re-payment of income tax on a vast scale in the aftermath of Murphy [Murphy v. Attorney General  I.R. 241]. Nor could the Courts have been expected to re-open previous convictions on a vast scale in the wake of the finding of the Supreme Court in de Búrca v. Attorney General  I.R. 38 that the pre-existing jury system was unconstitutional… As O’Higgins C.J. put it in de Búrca ( I.R. at 63), the “overriding requirements of an ordered society” would preclude such a consequence.”
However, the contexts are not fully comparable. The circumstances arising in the aftermath of C.C. v Ireland  4 I.R. 1;  IESC 33 (the precursor to the A case) and Damache, and the examples recounted by Hardiman J, all related to legal findings of unconstitutionality and their retrospective effect whereas the present crisis relates to factual unconstitutionality, i.e. there was in fact a breach of constitutional rights of which the defence was unaware. This places the matter in the line of miscarriage of justice cases where a convicted person presents a new or newly-discovered fact which shows that a conviction is unsafe, rather than in a situation involving a subsequent declaration of unconstitutionality.
All of the foregoing relates to the impact on past convictions if it is found that calls between suspects and solicitors were recorded. However, even if somehow, though it seems unlikely, such calls were differentiated and not recorded, taped calls between gardaí and witnesses of which the defence were unaware in a given case could also lead to the overturning of convictions and the need for retrial. There is a duty on the prosecution to furnish the defence with all material which might be relevant, whether inculpatory or exculpatory: failure to inform the defence of the existence of certain recordings would be a breach of that duty, not to mention the failure to obtain consent from the parties to the conversation.
The fallout from the current revelations is potentially catastrophic, to borrow the phrase from Hardiman J. in Cunningham. It is to be hoped that the worst-case scenario does not come true but already solicitors are retracing their steps, re-examining their files and considering the position of their convicted clients. The proposed Commission of Investigation ought to be established with much haste and should be given all necessary resources to enable a speedy report. The longer this crisis goes on without resolution the worse for the criminal justice system in this country.
In the midst of the ongoing row about the withdrawal of comments, it is being reported today that the Cabinet may discuss the idea of a police board or authority at their meeting tomorrow. This idea is not a new one. Fine Gael and Labour made such a suggestion in 2006, as did the ICCL. It’s something I’ve argued for repeatedly in my work. There are examples in operation in Northern Ireland and in England and Wales. But what exactly what it involve and what change would it bring to the structures of police accountability in Ireland? Continue reading “What would a police authority/board do?”
The use of informers has been criticised by the Garda Síochána Ombudsman Commission (GSOC) recently. The GSOC is investigating claims that some members of the Gardai permitted the continuation of serious criminality in exchange for information on other criminal actors. As I’ve written before, the use of undercover police officers and informers is fraught with problems, in terms of the scope of their permitted behaviour and the possible incitement of further offences.
Covert policing and the use of informers allow for the penetration of criminal groups and enterprises, and the communication of information about their structure and actions to the authorities. Much organised crime may not involve a victim as such, or victims may be reluctant to testify, or the evidence gathered may be incomplete or unconvincing. So, the infiltration of criminal enterprises is regarded as crucial for effective policing and investigation of organised crime, whether for intelligence purposes, or to gather evidence for criminal proceedings, or both.
In Ireland there is no legislation governing the use of covert human information sources (CHIS) or informers; instead, guidelines are in place. In contrast, in the UK the use of CHIS has become more regulated and strictly scrutinised. Although there CHIS need not be authorised under the Regulation of Investigatory Powers Act 2000 and its Scottish equivalent, so doing ensures that the operation has lawful approval. In addition, Codes of Practice have been issued, and each police force has its own policy and operating procedure.
The Covert Human Intelligence Source System and Code of Practice become organisational policy for the Garda Síochána in 2006 following judicial criticism of the handling of informers in the Morris tribunal report. The Code of Practice covers authorisation, registration, risk assessment and record keeping; for example, the recruitment, handling and management of CHIS may be given by the Assistant Commissioner at the Crime and Security Branch of An Garda Síochána only. This is more limited than the scheme in the UK where authorisation of CHIS may come from various officers such as a superintendent in a police force, HM Revenue & Customs or a Senior Manager in the Serious Organised Crime Agency (SOCA). In neither jurisdiction is judicial approval of the use of CHIS or informers required.
In addition, the Code of Practice in Ireland states that CHIS Handlers and Controllers will be trained to ‘approved standards’, and the use of CHIS will be subject to ‘appropriate reviews’. These opaque terms are not defined in publicly available documents.
While the Code of Practice is claimed to be ‘in line with best international practice’ the lack of legislation is worrying from a due process perspective and is unlikely to be compliant with the ECHR. McDermott has noted that this non-statutory, executive action is not ‘dissimilar’ to the regime which operated in the UK prior to Malone v UK where the European Court of Human Rights found that phone tapping was not in accordance with law and that it breached Art 8 due to the fact that the relevant domestic law was obscure and could be interpreted in different ways. Therefore, procedures in Ireland appear to contravene Art 8 given that the expression ‘in accordance with the law’ in Art 8(2) requires that the measure has ‘some basis in domestic law’ and ‘refers to the quality of this law, demanding that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him or her, and compatible with the rule of law’ Malone v UK .
The very nature of covert policing entails police officers skirting close to the limits of legality, and may, as in the case currently under investigation, involve reliance on parties with dubious records and motivations. Moreover, oversight of sources is difficult, and this is not necessarily remedied by a legal framework: as I’ve commented on before, in the UK a number of legal actions and inquiries are underway regarding inappropriate behaviour and relationships cultivated by undercover agents. Having said that, this does not excuse the absence of legislation in this respect.
Regardless of the findings of the GSOC’s investigation, it is critical that legislation is drawn up to guide and limit the powers of the Gardai in this respect. This will ensure the legitimacy of Garda operations, and will bring practice in line with the ECHR. Ultimately, both a precise legal framework and an ethical culture of policing is required to ensure that due process norms and liberties remain safeguarded in the use of this crime control technique.
We are delighted to welcome this cross-post by Dr Shane Darcy from the Business and Human Rights in Ireland Blog. The Business and Human Rights in Ireland Blog is dedicated to tracking and analysing developments relating to business and human rights in Ireland. It aims to address legal and policy issues, as well as highlighting human rights concerns raised by the activities of Irish companies or multinational corporations based in Ireland. The blog is run by Dr Shane Darcy who is a lecturer at the Irish Centre for Human Rights, National University of Ireland Galway.
The United Nations Special Rapporteur on the situation of Human Rights Defenders has raised concerns regarding the treatment of those opposing the onshore gas pipeline being built by Shell and Statoil in Erris, Co. Mayo. Margaret Sekaggya outlines her views in a report submitted this week to the United Nations Human Rights Council. The Special Rapporteur finds that there is credible evidence which indicates:
the existence of a pattern of intimidation, harassment, surveillance and criminalization of those peacefully opposing the Corrib Gas project.
The policing of protests seems to have been disproportionate in some instances, she reports, while “there have also been serious concerns about the lawfulness of certain actions by the private security firm employed by Shell”.
The Corrib Gas dispute has Continue reading “UN Special Rapporteur on Corrib Gas Protests”
The Socio-Legal Research Centre, DCU, held the fourth in its annual “Law on…” seminar series on Wednesday of last week. Following previous explorations of the Law on… Film, Celebrity, and Risk, this year’s seminar focused on the Law on… Police Accountability. There were three speakers: Damien McCarthy, Chairman of the Legal Assistance Scheme and former President of the Garda Representative Association (GRA), Kieran Fitzgerald, Commissioner of the Garda Síóchána Ombudsman Commission (GSOC), and Dr Barry Vaughan, National Economic and Social Council (NESC).
What follows is a brief outline of the presentations delivered by each speaker.
The theme of this seminar will be “Law on…Police Accountability” and it will focus on the oversight of the Garda Síochána by the Garda Síochána Ombudsman Commission.
The speakers at the seminar will be Garda Ombudsman Commissioner Kieran FitzGerald, former President of the Garda Representative Association Damien McCarthy and Prof Dermot Walsh of the University of Limerick.
Certification of attendance for the purposes of the CPD scheme will be available to attendees on request (2 hours).
The event is free of charge but prior registration is requested by emailing firstname.lastname@example.org
Today Arlene Foster, the DUP MLA and Minister, is leading a group to Dublin to call on the Irish government to acknowledge (not apologise for) the failure of successive Irish governments to protect life along the border. A core part of her argument is that many IRA attacks were planned by individuals who lived in the Republic, crossed the border to conduct the attack and then returned to what she views to be a ‘safe haven.’
I’m currently in the process of writing a history of policing in Ireland in the twentieth century and one of the most significant aspects of this is the impact of Troubles of policing in Ireland, something I contend is largely unacknowledged. Continue reading “Policing the Border During the Troubles”
In February of this year a most significant decision was handed down by the Supreme Court in the area of criminal procedure. This decision, Damache v DPP  IESC 11 (discussed here), found that s.29(1) of the Offences Against the State Act 1939, which had been in operation for the past 36 years having been inserted by s.5 of the Criminal Law Act 1976, was contrary to the Constitution. The provision allowed for a member of the Garda Síochana not below the rank of superintendent, to issue a search warrant in certain specified circumstances. It did not, however, specify that such warrants should only be issued by members of appropriate rank who were independent of the relevant investigation. It was with this omission that the Supreme Court found fault. Indeed, this omission, and the Garda practice of having superintendents who were directly involved in an investigation issue warrants under s.29(1) had previously been criticised by Justice Morris in the “Burnfoot Module” of the Morris Tribunal Report (2008). In para 6.22 of that Module the learned Chairperson of the Tribunal observed that
The danger exists that a warrant would be issued automatically and without proper investigation of the matter by the superintendent to whom the application is made if he or she is heading the investigation. There is a danger that the power to issue a section 29 warrant thereby becomes a mere formality in which the investigating Sergeant might as well be empowered to issue a search warrant to himself.
The Supreme Court in Damache held that the issuing of search warrants is an administrative act but it must be exercised judicially. Accordingly, independence is necessary in the exercise of the act. This, along with the importance of the constitutional protection of the inviolability of the dwelling, under Art 40.5, led the Court to find that s.29(1) was repugnant to the Constitution given that it did not insist on independence in the garda issuing of the relevant search warrants.
An obvious question which arose in the aftermath of the Damache decision is what impact this finding would have on other previously-decided cases. Is a finding of unconstitutionality retrospective or not? Continue reading “Damache and Constitutional Retrospectivity”
Supreme Court judgments are coming thick and fast at the moment as two of the members of the bench (Finnegan and Macken JJ.) are set to retire at the end of the month. Last Thursday alone five judgments were issued including one rejecting a constitutional challenge to the Criminal Law (Sexual Offences) Act 2006. In another of the judgments, the focus of this post, a constitutional challenge had greater success.
Damache v DPP  IESC 11 centred on the constitutionality of s.29(1) of the Offences Against the State Act 1939, as amended by s.5 of the Criminal Law Act 1976. The appellant was initially suspected by the Gardaí of involvement in a conspiracy to murder Lars Vilks, a Swedish cartoonist who had depicted the Islamic prophet Mohammad with the body of a dog. The appellant was also suspected of making a threatening phone call to an individual in the US. Following approximately six months of investigation, the Gardaí decided to search the dwelling of the appellant and, under the terms of s.29(1) as amended, Detective Superintendent Dominic Hayes issued a search warrant for that dwelling. The warrant was issued on March 8th 2010 and executed on the following day. Continue reading “Self-issued Search Warrants and Constitutional Rights”