Even by the standards of the genre, yesterday’s statement from the Government was a model of the studied, lawyer- proofed holding statement. Its language (a “very serious issue”, a matter “potentially of such gravity”), the central revelation (that gardaí systematically and secretly recorded phone calls) and the initial response (a statutory commission of inquiry) all suggested a serious scandal. But the Government has held back some key pieces of information and the unanswered questions are already stacking up.
First, what we’re being told. The Government said it had learned “a system” was in place in a large number of Garda stations whereby incoming and outgoing phone calls were “taped and recorded”.
Legal proceedings
Taoiseach Enda Kenny said he was told of this at 6pm on Sunday and Cabinet members were informed at yesterday's weekly meeting. According to the statement, the information came to the Government's attention "in the context of ongoing legal proceedings in a particular case".
The practice of recording calls was in place “for many years” and ended last November. “It is not clear why this practice was in operation,” it added. The Government was coy on the case it claims brought the information to light, as “the matter is before the courts”.
Politicians often say this, but the fact of a case being before the courts doesn’t in itself mean nobody can talk about it. The details of that case are essential to understanding who knew what, and when. The statement said “the Government” learned of the practice only recently.
Does that mean nobody at the Department of Justice knew of it beforehand? Were senior gardaí aware of it? When was the Attorney General informed, and what advice did she give the Government?
And the inescapable question: was Martin Callinan’s departure as Garda Commissioner linked to the revelation that came just hours after his resignation was announced? Why did the information come to light now, in the middle of an apparently unrelated (and seemingly sidelined) controversy over the treatment of Garda whistleblowers?
Legally, a great deal turns on what the Government means by “taped and recorded”. Were individual gardaí recording calls in which they were participants, or were they intercepting calls between others – a procedure that is only allowed under conditions set down in law?
If it’s the latter, and gardaí were recording – and listening to – conversations between individuals and their lawyers, it could have very serious implications and, in certain circumstances, raise questions about the safety of convictions.
To what uses were gardaí putting the recordings? Were they in breach of data protection legislation? Were there criminal cases in which gardaí failed to disclose relevant material because it had been obtained in this way? How many stations is “a large number”? Does “many years” mean three or 30? How did the practice emerge? Why did it happen at some stations and not others? And that key question again: who knew?
These are some of the obvious questions that await whichever serving or retired judge the Government asks to lead its commission of inquiry.
That will bring to three the number of lawyers who have been appointed in recent months to investigate the Garda and the Department of Justice in some way. Last month, retired High Court judge John Cooke was appointed to investigate the potential security breaches identified by the Garda Síochána Ombudsman Commission at its offices.
Also last month, barrister Seán Guerin was appointed to assess how Minister for Justice Alan Shatter and his department dealt with the complaints raised by Garda whistleblower Maurice McCabe in recent years. The inquiry announced yesterday will have a higher status. It will be established on a statutory footing and will presumably have the resources and remit to carry out a more comprehensive investigation than either an Oireachtas committee or a more informal ad hoc inquiry.
But its terms of reference, yet to be decided on, will be vital to the commission’s ability to answer a series of questions that could prove decidedly awkward for some of the State’s most powerful institutions.
