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.