The Attorney General, Máire Whelan, considered legislation to “deal with” the thousands of hours of telephone calls to Garda stations that had been retained from as far back as the 1980s, the Fennelly commission noted.

At a meeting in the Attorney General's office on March 20th, 2014, considered by the commission to be a "key moment" in the sequence of events leading to the retirement of former Garda commissioner Martin Callinan, Ms Whelan said she was "troubled" by the suggestion that recordings could be destroyed.

Ms Whelan initially told the commission that the recordings were “criminal activity being engaged in by An Garda Síochána”. But she later made a written submission regretting her “trenchant language” and stating she had referred only to “potential illegality”.

After his advice had been sought in an email the day before, the then data protection commissioner Billy Hawkes had telephoned legal counsel for An Garda Síochána Kenneth Ruane and advised him that there was no legal basis for retaining recordings of phone calls unconnected with the Ian Bailey case.

‘No explicit purpose’

The commission said it was important to note that Mr Hawkes “drew this conclusion from the statements made by the Garda commissioner in his letter that there was no explicit purpose for the recordings and that he did not think he had any lawful basis on which to retain them”.

In his evidence to the commission, Mr Hawkes had said he was not made aware that the recordings could contain information relevant to the innocence or guilt of persons in other cases, which could affect the validity of court judgments. “He accepted that there could potentially be a lawful basis for retaining recordings if there was a reasonable assumption that they contained such material. But that was not something that was brought to his attention.”

Advisory counsel Ruth FitzGerald told the meeting: “It was material which the Garda should not have, either in a criminal prosecution or civil matter.”

Concern about advice

Yet Ms FitzGerald “expressed her concern about the advice that had been given to An Garda Síochána by the data protection commissioner . . . It was, Ms FitzGerald thought, necessary to have the view of the data protection commissioner, but the advice that had been received from him was, in her view, ‘quite startling’.”

Ms FitzGerald was considering proposing legislation to deal with the retained tapes.

A particular concern, director general of the Attorney General’s office Liam O’Daly told the commission, was that some recordings might be destroyed as a result of advice conveyed orally by the data protection commissioner.

“It was this possibility which added urgency, and the Attorney General, in her written statement to the commission, has said that her assessment was that data protection considerations were being given undue weight by An Garda Síochána and that a balancing exercise was required . . . This meant that preservation of the recordings was more prudent until the full implications of destruction were carefully assessed.”

The commission said its interim report did not purport to report on whether the recording systems were authorised by law. “The task of the commission, in that respect, will be to consider not only the criminal law but broader issues of potential infringement of fundamental rights, in particular the right to privacy and the right to protection of personal data.”