The unlawful recording of non-999 calls by the Garda may have ceased shortly after the practice came to light, but there remains concern there is no statutory basis even for the continued recording of emergency calls.
That is one of the recommendations emerging from the final report of the Fennelly Commission, published on Thursday.
However, Mr Justice Nial Fennelly adds that the absence of legislation providing for the recording of emergency calls does not render such recordings illegal.
Providing for the recording in legislation would offer clarity to the public around what calls could be recorded and how long the metadata and audio could be retained, he finds.
But there may also be a downside to formalising and publicising the recording process, he added. For example, callers may need to be informed that their conversation was about to be recorded.
Valuable information
"It is possible that such a message might discourage callers from making calls in emergency situations, with the result that valuable information could be lost," Mr Justice Fennelly says.
The report’s findings are bizarre in places in that it concludes the recording systems for non-999 calls were installed on the authority of a chief superintendent because he misunderstood some of the technical language used in a letter sent to him by a technician.
He did not know what was meant by the “Telephone Attendant Operators Set”, believing it to relate to 999 calls rather than the main telephone line into Garda stations.
And so he gave permission in 1996 for the main phone lines in some stations in the Southern Region to be recorded.
The report finds that nobody in Garda management seemed aware that the system, which was extended beyond the Southern Region, was operating. The recording of the non-999 calls was in breach of common law, statute law, the Constitution and the European Convention on Human Rights.
However, while it was feared solicitor-client calls may have been recorded and listened back to by Garda members, the commission believes this is “extremely unlikely”.
Such calls were not made on the stations’ main line and even if a call from a solicitor was received into a station in that way, once transferred to a client on another extension in the station, the recording ceased.
The Fennelly Commission finds that solicitor-client calls were often made on a dedicated line for such calls, which was not recorded.
More generally, the commission found that from 1995 the Garda had operated systems to record the main line into, at most, 22 divisional stations. However, the recording of the calls into the main line ceased once transferred to an extension.
But in Bandon station in Co Cork, due to an apparent technician's error, the system extended to calls beyond those to the main line.
This was discovered when Ian Bailey, who was investigated in relation to the 1996 murder of Sophie Tuscan Du Plantier, made a discovery order as part of a civil case and a number of tapes were found. Bailey denies any part in the murder.
Managing evidence
The tapes found in Bandon included conversations between Garda members as they discussed crafting and managing evidence to suit their lines of investigation.
That finding is damaging for the Garda, though there was no evidence the conversations about the massaging of evidence in that way were acted on.
The Fennelly Commission also found no evidence of widespread Garda abuses of the recording systems, but it could not rule it out.
When the existence of the tapes emerged it resulted in deep concern over recording systems nationwide.
Then Garda commissioner Martin Callinan was informed in October 2013. He said he immediately ordered a stop to any further non-999 calls being recorded. This process was completed at the end of the following month.