The case which Micheál Martin said prompted the Government to set up a statutory commission of investigation into the practice of recording phone calls to and from Garda stations was the trial of four gardaí in relation to the assault of a member of the public in Waterford.
It was investigated by the Garda Síochána Ombudsman Commission (GSOC) after a local man, Anthony Holness, made a complaint in February 2010 at Waterford Garda station about his treatment at the hands of a number of gardaí in the city on January 29th, 2010.
The matter was referred by the then Garda commissioner Fachtna Murphy to the GSOC, which investigated the matter. A file was prepared for the DPP, who recommended that four officers based at Waterford Garda station be prosecuted for different offences.
Assault convictions
Following a trial at Waterford Circuit Court in 2011, Sgt Alan Kissane was acquitted of causing harm to Mr Holness, Sgt Martha McEnery was found guilty of assaulting Mr Holness and Garda Daniel Hickey was convicted of assault causing harm to Mr Holness.
Garda John Burke, who was monitoring CCTV cameras back at Waterford Garda station, was convicted of attempting to pervert the course of justice and attempting to impede the apprehension or prosecution of persons believed to be guilty of an arrestable offence.
Judge Leonie Reynolds imposed a four-month suspended sentence on Sgt McEnery, she sentenced Garda Hickey to three years in jail with the final 18 months suspended and Garda Burke was sentenced to two years in jail with the last year suspended.
Appeals failed
Sgt McEnery and Garda Burke both failed in their appeals against convictions in November 2012. Last June, the GSOC issued a report in which it was highly critical of the reluctance of a small number of Garda witnesses to assist with the prosecution of the four accused.
Significantly, the GSOC also expressed concern about another aspect of the case, where phone calls made by “certain of the accused” to Waterford Garda station on the night were recorded and later given to the GSOC but the recordings were deemed inadmissible by the court.
“On the 29th of January 2010, shortly after the arrest of Mr Holness, there was telephone communication between certain of the accused. These calls were recorded on the Garda Síochána recording system and a recording was provided to GSOC,” said the Garda watchdog.
However the defence objected to the introduction of these phone recordings and, following protracted legal argument in the absence of the jury, Judge Leonie Reynolds ruled that the recordings could not be used against the accused.
Judge Reynolds ruled that the practice in the station of recording all incoming and outgoing calls on a particular line was in breach of the relevant statute on recording telephone calls, which requires that at least one of the parties involved must have consented to the recording.
Requirement "not met"
The GSOC, in its report, noted that "this requirement [of obtaining the consent of at least one of the parties] was deemed to have not been met on this occasion" and that, the GSOC suggested, raised issues for the Garda Commissioner concerning the practice of recording such calls.
“On consideration of the ruling of the court [that such recordings were inadmissible], the Garda Commissioner may wish to re-evaluate his practice regarding the recordings of such calls and the consents required if it is to be permissible to use such recordings in evidence.”
