Fennelly Report: Gardaí 'were prepared to contemplate altering evidence' in du Plantier murder case

The Fennelly Commission report into the mass recording of telephone calls in Garda stations for decades has found the practice was not lawful, but no criminal cases were significantly affected by the practice.

The Fennelly Commission report which has been published today says continuing the recording of calls should now be put into legislation.

The report also found that one of its most surprising findings is the "almost total ignorance at the highest levels of the force" of the recording of main station telephones at garda divisional stations outside Dublin since 1995/96.

It also says "there was no Garda system of snooping, spying or intrusion into private life".

The report examines the fact phone tapping was widespread for at least three decades; was initially focused on 999 calls and bomb threats; Attorney General Máire Whelan’s performance; and that since 2008 records have been kept centrally at garda headquarters.

The commission, headed by Mr Justice Nial Fennelly, was set up in 2014 to investigate telephone recording systems to record calls other than those to 999.

The commission was examining material from a large number of garda stations over several years.

The Attorney General Máire Whelan has also come in for criticism for the level of alarm raised about the issue when it was uncovered in 2014.

Máire Whelan.

In a statement, the Government said the report reinforces its decision to undertake a root and branch review of Gardaí.

While the Commission finds that it is “reasonable to conclude, based on the evidence before it, that no widespread or systematic, indeed probably no significant, misuse of information derived from non-999 recordings took place”, it still makes many findings of great concern to the Government.

They relate to the unlawful nature of the recordings, lack of effective oversight and procedures, and the content of certain telephone recordings relating to the investigation of the death of Sophie Toscan du Plantier.

The Commission found no evidence of knowledge of the recording of non-999 telephone calls on the part of relevant Ministers for Justice, the Department of Justice, the Office of the Attorney General, the Chief State Solicitor, GSOC, the Data Protection Commissioner or the Director of Public Prosecutions.

BACKGROUND:

Non-999 phone calls began to be taped at 22 divisional garda stations in late 1995. The Fennelly Report says that at some unknown date in 1996, the telecommunications technician in Bandon, apparently by mistake, connected a number of lines to the recording system, which went outside what had been approved for recording in 1995.

From early 1997, phone conversations by members of the team investigating the murder of Sophie Toscan du Plantier at her holiday home in West Cork on 23 December 1996 were recorded without their knowledge. Tapes of these recordings were retained in Bandon Garda Station. All bar a few of the tapes were destroyed in a flood at the station in November 2009.

  • The small number of surviving DAT tapes was brought to the attention of the Garda discovery team by the technician at Bandon.
  • This was in the course of compliance with an Order for Discovery of documents made in a High Court action by Ian Bailey, who had been questioned in relation to the death of Ms du Plantier, and who was alleging ill-treatment by the Gardaí;
  • A number of recorded calls were judged to contain material which was damaging to An Garda Síochána;
  • These matters were reported to the senior levels of the Force in October 2013;
  • Then Garda Commissioner Martin Callinan had been unaware that there had been any recording, other than of 999 calls. He issued immediate instructions that all recording other than of 999 calls was to stop;
  • Mr Callinan, in a letter dated March 10, 2014, reported to the Secretary General of the Department of Justice that it had been discovered that recording of telephone calls had been taking place in certain Garda stations since the 1980s;
  • This letter was not brought to the attention of the Minister for Justice until March 25, 2014;
  • The Taoiseach caused it to be conveyed to the Commissioner Callinan late on 24 March that the matter of telephone recording was considered to be very serious. The Garda Commissioner gave notice of his retirement on 25 March 2014.
  • The Government decided to establish the Fennelly Commission of Investigation.

In his introductory remarks in the report published today, Nial Fennelly says: “It is apparent from the outset that, from 1995, An Garda Síochána had operated systems to record the main line into at most, 22 divisional stations, though the recording ceased once the call was transferred to an extension.

“It is also apparent that a quite different category of recording took place at Bandon Garda Station. More generally, it is clear that the entire history of the matter is associated with error and misunderstanding.”

Sophie Toscan du Plantier case

“It is of serious concern that, in the small sample of recorded calls available to the

Commission, evidence is disclosed that members of An Garda Síochána involved in the investigation, including the officer responsible for preparing the report for the Office of the Director of Public Prosecutions, were prepared to contemplate altering, modifying or suppressing evidence that did not assist them in furthering their belief that Mr (Ian) Bailey murdered Madame Toscan du Plantier”, though the commission found no evidence such actions were actually carried out.

Judge Fennelly said there were two instances when gardaí appeared willing to contemplate allowing or encouraging false allegations to be made or false evidence to be given.

The report said an unnamed detective sergeant considered doctoring a written statement prepared by another officer and removing detail in a second statement.

One involved a statement on an assault being "pre-dated".

Judge Fennelly described it as "improper conduct".

The judge also found "improper and inappropriate disclosures" by investigating gardaí.

In one phone call, a detective sergeant, who has since died, was heard describing Mr Bailey as a "cunning bastard".

In another, Mr Bailey, a convicted wife beater, was accused of having beaten his wife Jules Thomas "to a pulp a few times" and that he had committed similar assaults in England.

In June 1997, one local TD was told over the phone that Mr Bailey's re-arrest was imminent. He was detained for the second time in January 1998.

Judge Fennelly said he could not make general conclusions about the Du Plantier investigation based on the Bandon tapes.

He described them as "fractional, fragmented and essentially random" and "often unclear or ambiguous".

The Fennelly Commission said there were 42,363 calls recorded at Bandon station. Some 282 were relevant to the Du Plantier murder inquiry.

Solicitor/client calls:

The Commission identified three Garda stations at which solicitor/client calls either were or were likely to have been recorded between 1995 and 2013: Bandon, Waterford and Wexford. In each case, the report says the evidence indicates that these recordings occurred inadvertently, as a result of recording certain specific non-999 lines, for reasons unrelated to the capturing of solicitor/client calls.

The Commission has found no evidence of any recorded solicitor/client call being accessed deliberately for its content. Nor is there any evidence of any such call being downloaded or copied for any purpose.

However, the report adds that “none of these conclusions should be taken as an exoneration of the existence of a system that allowed the possibility of recording and accessing solicitor/client calls without the knowledge of the parties concerned.

“Although it is possible to say that, in general, no abuse of this system occurred, it is not possible absolutely to rule out improper use in any specific case. No such case has been referred to the Commission.”


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