There were extraordinary levels of "almost complete ignorance" at the highest levels of the Garda about the taping of telephone calls at stations for almost 20 years, the Fennelly Commission has found.
The commission, established in 2014 to investigate the recording of phone calls at Garda stations, has published its final report.
Mr Justice Nial Fennelly, who chaired the Commission of Investigation, said the "entire history of the matter is associated with error and misunderstanding".
The recording of 999 or emergency calls had been in operation since the 1970s, but an upgrade of recording systems in 1995 led to widespread recording of calls on the main telephone line of 20 divisional headquarters outside Dublin.
The commission said that following this system upgrade, the decision of the chief superintendent with responsibility for IT and telecommunications to substantially broaden the recordings was based on a misunderstanding.
The superintendent thought he was approving the recording of the 999 system only.
Also at this time, senior Garda management failed to formulate any polices around the recording of phone calls.
Change in policy
This chain of events resulted in a “major change in policy”, although this was not known to, effectively, anyone within the force.
There was “almost total ignorance at the highest levels of the force” which was regarded by the commission as one of its “most surprising” findings.
The system was again updated in 2008 and about 3,000 tape recordings in the previous period were stored at Harcourt Street and divisional headquarters. This was completely unknown to Garda Headquarters until February 2014.
The commission, however, found "no evidence of any general intention on the part of An Garda Síochána to invade the personal privacy of the persons whose calls were recorded".
The report said the past six Garda commissioners, including Nóirín O’Sullivan, the current commissioner, knew only that emergency calls were recorded. Successive ministers for justice were not aware of the taping.
It said the installation and use of the recording systems “were not authorised by law” and amounted to an interference with personal rights.
No evidence was found that the recordings were used to access phone calls between solicitors and their clients.
“There was no deliberate decision or intention on the part of An Garda Síochána to use those systems to record calls between solicitors and their clients.”
It added, however, that it was “not possible absolutely to rule out improper use in any specific case”.
The issue of taping was a factor in the case of Anthony Holness in Waterford Circuit Court in July 2011.
Four gardaí were tried for assaulting Mr Holness. The court ruled that recordings of phone calls at Waterford station were inadmissible in evidence, and found that such recordings were in breach of the law.
Legal implications
Martin Callinan
, the then garda commissioner, wrote to Ms O’Sullivan, then deputy commissioner in charge of operations, inquiring about the legal implications of the ruling.
Mr Callinan’s note “clearly required a response” but none was forthcoming. Ms O’Sullivan said “normal practice” would be to wait until responses had come back from “various sections of the organisation dealing with the problem”.
The report also said Ms O’Sullivan received further reports in July and August 2011, which contained information that recording at Waterford was taking place on non-999 calls.
This information “was either not seen or not understood” by Ms O’Sullivan and the other officers at Garda HQ whose task it was to provide a response to the commissioner.
The report concluded that the senior ranks were impervious to this “clear information” and although senior officers, up to and including Ms O’Sullivan, received “reports conveying this fact, the senior levels of the force did not properly or adequately consider the information”.
It also said a “lack of oversight” was apparent when Ms O’Sullivan sought information in November 2013 on the taping.