State sought to defend phone tapping despite conceding its illegality

The saga of the improper telephone tapping of journalists Geraldine Kennedy and Bruce Arnold, by the Garda Síochána on the instructions of the Haughey government of 1982, finally ended in February 1987 when, the two journalists having won a civil action against the State in the High Court, the then attorney general, John Rogers, effectively threw in the towel by not appealing the judgment.

The pair’s legal action succeeded in breaking important new ground on the constitutional right to privacy and curbing a politically motivated abuse of State power.

The story had its roots in the scandal-ridden Haughey government of 1982 during which, among other things, his justice minister, Sean Doherty, in effect ran amok inside the Garda. His behaviour culminated with the Irish Times disclosure, by this reporter on December 18th, 1982, that the phone tapping had occurred.

In January 1983 the new justice minister, Michael Noonan, confirmed the report and published a sensational three-part statement.

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It announced that the then Garda commissioner, Patrick McLaughlin, and his deputy, Joe Ainsworth, were to “retire” in a matter of days; that Kennedy and Arnold’s phones had indeed been tapped and explained how; and, piling sensation upon sensation, that the former minister for finance Ray MacSharry, had used Garda bugging equipment to secretly record a conversation with the former education minister, Martin O’Donoghue.

Long after the political controversy sparked by Noonan's announcement had passed (with Fianna Fáil TDs and Senators not supporting calls for Haughey's resignation), Kennedy and Arnold launched a civil action against Ireland and the attorney general. Joining them in the action was Mavis Arnold, Bruce Arnold's wife and co-user of his tapped telephone.

In their statement of claim, lodged with the High Court in June 1984, they charged that the tapping was “illegal”, that “recordings and transcripts of conversations were illegally made” and that their constitutional rights had been breached.

A file from the office of the attorney general, made available in the National Archives under the 30-year rule, reveals how the State responded from then on.

Initial appraisal

The State retained the services of senior counsel Dermot Gleeson, who on September 24th, from his home on Palmerston Road, wrote an initial appraisal for the chief state solicitor, Louis Dockery. It is clear that from this that Gleeson believed Kennedy and Arnold would win.

“In my view,” Gleeson wrote, “the constitutional right to privacy, the right of freedom of expression and a possible right of free communication between citizen (not expressly relied on by the Plaintiffs [Kennedy and Arnold] would be established; I am a little more doubtful about the Plaintiffs’ reliance upon inviolability of the dwelling, but nothing seems to me to turn on that.”

Gleeson wrote that he would be “strongly against denying the relevant facts”, thereby forcing Kennedy and Arnold to prove everything, which would include that the tapping had actually happened.

If the facts were conceded, Gleeson said the State then had two options: firstly, deny any constitutional tort (wrongdoing ); or secondly, admit everything, including the claimed breaches of the Constitution, and lodge money into court to be used as compensation.

“It is quite clear, however,” wrote Gleeson, “that political and policy issues loom much larger in this affair than in any purely legal consideration and it is clear that Counsel will require directions from the Attorney General as to the final form of defence.”

As a final thought, he wrote that he assumed it was not proposed to elicit the support of Sean Doherty in defending the action or to ask him “whether he is in a position to assist in the defence in any way”.

In less than a month, the State was trying to settle the case.

At the request of Rogers, the deputy assistant chief state solicitor Michael Buckley spoke to Kennedy and Arnold's solicitors, Hickey Beauchamp Kirwan & O'Reilly (their barristers were James O'Reilly, Mary Robinson and Hugh O'Flaherty), to see if a settlement was on the cards.

“[Kennedy and Arnold’s] chief concern was not damages but they would want an apology,” Buckley reported in a note for Rogers. “I got the impression that the parties would expect a figure in the sum of £10,000 each, together with costs and together with the apology.”

Efforts to agree a settlement failed at this stage, however.

Unsatisfactory position

On January 2nd, Gleeson again wrote an appraisal on the assumption that the case was going ahead. In proposing a defence that admitted the essential facts of the case, Gleeson said it was “vital” that the attorney general accept that the phone tapping was illegal, as claimed by Kennedy and Arnold.

His recommendation was to the effect that “we concede the illegality but do not accept that a constitutional tort was involved” while acknowledging that “frankly this is a somewhat unsatisfactory position to be taking up as we are on the one hand conceding the illegality but not specifying its nature”.

The file on the case reveals a draft defence, signed by Gleeson and also by his junior, Michael McDowell. In it, the State admits the facts of the tapping, as claimed by Kennedy and Arnold, but denies “that by reason of any of the said facts there was any illegality or any breach of the Plaintiffs’ Constitutional rights either as alleged or at all”.

In late September 1985, the State lodged a formal defence in the High Court.

A news report to this effect in The Irish Times on October 30th caused consternation to the chief state solicitor, who penned a handwritten letter to Kennedy and Arnold's solicitors. "I am amazed and alarmed," he wrote, " that such an article, which can only have been written with the active assistance of the Plaintiffs or persons acting on their behalf, could appear."

He fulminated that the report was “totally undermining” and rendered the case “incapable of fair trial”, and amounted to a “waiver of a jury trial” by Kennedy and Arnold. He demanded that Hickey Beauchamp Kirwan & O’Reilly indicate “in writing” their acceptance that there would not now be a jury trial, and explain the “circumstances in which this article came to be written”.

In the absence of a reply by Friday, November 8th, 1985, “at noon” he would apply to the court to have “those responsible” for the report “attached or sequestrated (as the case may be) in respect of their contempt”.

The letter was never sent.

Calmer version

A somewhat calmer version is also on file in which most of the earlier handwritten version is deleted and “amazed and alarmed” has become “extremely concerned” and various other matters are now merely “quite unsatisfactory”. A letter in these terms, dated November 27th, 1985, was eventually sent.

On December 3rd, Hickey Beauchamp Kirwan & O'Reilly dispatched a spirited defence, noting that the author of the Irish Times report, Mary Maher, had interviewed Bruce Arnold, who confirmed rumours she had heard. The law firm also confirmed to her that the case was being pursued.

“We know of no authority to the effect that a solicitor for one of the parties is not entitled to give information of this sort to the Press and if you know of any authority we would be very grateful if you would quote it to us,” wrote Hickey Beauchamp Kirwan & O’Reilly.

As the case neared trial, the State sought yet another legal opinion, this time from Niall Fennelly, in October 1986. In a 14-page opinion, he wrote that "the telephone tapping activities complained of, in the assumption that they are unlawful and unjustified, do indeed constitute a breach of the Plaintiffs' constitutional right to privacy".

The case went to the High Court and, in January 1987, Mr Justice Liam Hamilton found in favour of Kennedy and Arnold, awarding them damages of £20,000 each and Mavis Arnold £10,000.

In his judgment he said the telephone tapping was “an attack on [the plaintiffs’] dignity and freedom as individuals and cannot be tolerated in a democratic society”.

On February 6th, 1987, Fennelly drafted a handwritten appeal, on four grounds, for consideration by the chief state solicitor.

The three of the grounds claimed the damages were “excessive”, that there was no justification for “aggravated or exemplary damages” and that Mavis Arnold should have gotten no damages, or only nominal damages, as the injury to her was incidental and not conscious on the part of the State.

The fourth ground was on a legal technicality.

But John Rogers decided against.

The final note on file, dated February 9th, 1987, and initialled JR, says: “In my opinion there should not be an appeal on either liability or quantum.”