Recording phone calls could have implications for data protection

Irish Times, Wednesday 26^th March 2014  

Taping and recording of phone calls in Garda stations could have serious implications for data protection and for the legal privilege of discussions between people detained at Garda stations and their solicitors, legal experts have said.

It could also potentially result in the overturning of some convictions in specific circumstances.

Under Irish law, it is not illegal for a person to record a phone call if they are a party to that call, but it is an offence if a third party records a call without authorisation under the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993.

Legislation also requires that when personal data of individuals is collected a record must be kept of it, and it must be registered under data protection legislation.

The Data Protection Acts state that a person’s information should only be collected for specific purposes and callers should be informed they are being recorded.

One leading barrister working in criminal law who did not want to be named said there could be serious implications if calls between people detained at Garda stations and their lawyers were recorded.

Privilege
Such discussions attract absolute legal privilege and could never be used as evidence in a court of law, he said, but there was a risk that information collected could be used against a person detained.

“It is impossible to come up with any conceivable justification for the gardaí or an adverse party to record that secretly,” he said.

He said it could be a leap to assume that because calls were recorded, they were listened to, but if they were it could come close to “perverting the course of justice”.

If information gleaned from recording a phone call was used in evidence it could lead to the exclusion of some evidence at trial or to an argument of abuse of process.

The recording of calls could also have implications for cases involving disclosure.

Gardaí and the Director of Public Prosecutions have an obligation to provide disclosure of any material that is of any relevance and the courts have interpreted this broadly, he said.

So if a person called a Garda station to speak to a garda about a case, that communication if recorded would be subject to the normal disclosure.

He said yesterday’s revelations could lead to a flood of applications for disclosure of any calls being made.

“There must be cases out there now where that is a live issue; there is a flurry to prove the fact of the phone call, and then evidence of its content from people’s recollections,” he said.

In past cases, disclosure has been sought to see if there is a record of a telephone call to a Garda station and gardaí have produced records from a phone company.

‘Remarkable’
“It is remarkable now that they were producing the phone records if at the same time they also knew they had recordings,” the barrister said.

He also said he thought it was possible that if a person could show they had been convicted in specific circumstances where there was a live issue in respect of the content of a telephone call, a conviction could be overturned.

A second barrister working in the area of criminal law said the implications for data protection were very important. Gardaí appeared to be retaining personal data on individuals and legislation required that a proper record of such data be kept and that it is registered with the data protection commissioner.

“Presumably they haven’t done that,” he said.

If they had done it and a scheme had been put in place and authorised that would raise other issues.

He said any recording of calls to solicitors was very serious as they could be used as “intelligence gathering” exercises.

Separately, the Irish Council for Civil Liberties has said the Government should allow its new statutory Commission of Investigation examine “the full spectrum of Garda accountability issues” that have arisen in recent weeks.