6.27. Similar issues arise in relation to the covert audio and/or audiovisual surveillance and/or recordings. The Tribunal was disturbed and dismayed
at the extent to which covert taping was conducted by the Gardaí, not alone of conversations with civilians, but of conversations between Gardaí supposedly working together. This issue also involves the right to privacy as guaranteed under Article 40.3 of the Constitution. In the course of the examination of the allegations of bugging of interview rooms in Letterkenny Garda Station made against other Gardaí by Detective Sergeant White, the Tribunal heard evidence of a documented case of covert eavesdropping and audio recording of a conversation between two prisoners in a cell at Ballinasloe Garda Station some years previously.
16.28. It is clear from Chapter 14 that the Tribunal is not satisfied that the alleged bugging took place at Letterkenny Garda Station. However, it also became clear during the hearing of the sub-module that there was no clear Garda directive in place in respect of covert eavesdropping in Garda stations and that the Gardaí were relying on common law precedents in respect of the eavesdropping that took place in Ballinasloe Garda Station. As a matter of law, the custody regulations permit Gardaí to supervise a visit by a friend or relation to a detainee provided it will not hinder or delay the investigation of crime. Regulation 11(6) also provides that before such a supervised visit takes place the prisoner shall be informed that anything he says during the visit may be given in evidence. Similarly, an arrested person may make a telephone call to another provided that this will not hinder or delay the investigation of crime and Regulation 11(5) provides that a Garda may listen to any such telephone call and terminate it.
Regulation 11(6) provides that a prisoner shall be informed that anything he says during this communication may be given in evidence. There is no actual provision for the tape recording of such visits or telephone calls. Counsel for the Garda Commissioner informed the Tribunal that it was the Commissioner’s view that such covert eavesdropping or recording should not take place save in extraordinary excusing circumstances, but as already noted, this is not part of the Garda code or any direction that has been issued by the Commissioner to Gardaí. It was not contemplated by the custody regulations.
16.29.Having regard to the surveillance contemplated against Frank McBrearty Senior, repeated tape recording of conversations by the Gardaí, and the other evidence described in Chapter 14, the Tribunal is concerned that this area remains unregulated by statute or statutory instrument. In this regard, the Tribunal recommends that the Law Reform Commission Report on Privacy: Surveillance and the interception of Communications(June 1998) be reviewed with a view to implementing the extensive recommendations in that report concerning regulatory provisions in respect of certain forms of surveillance by An Garda Síochána and others. It is entirely wrong that the Gardaí should be recording persons, including their colleagues and senior officers, at will and/or contemplating or carrying out covert surveillance using electronic devices without any
statutory guidance or regulation and without any internal Garda
16.30. As already seen, case law provides some guidance in respect of the parameters of acceptable behaviour in this area. The Law Reform Commission has noted the unsatisfactory nature of relying upon case law which may be rooted in unusual circumstances in providing a benchmark for acceptable behaviour. In addition, the development of the law is largely dependent on individuals taking and funding cases in which they believe their rights to have been breached. Further, if surveillance is covert, a party is unlikely to discover such a breach. Article 8 of the European Convention of Human Rights provides as follows:
1. Everyone has the right to respect for his private and family life, his home and correspondence.
2. There should be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society and the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. The Law Reform Commission was of the view that covert police surveillance (using audio and video devices) would probably amount to an interference in the exercise of Article 8 rights. In commenting on whether such activities should be provided for by positive law it said: This reflects the underlying requirements of the rule of law which animates the entire Convention. The basic value at stake is the insistence that all limits imposed by States on rights must not rest merely on a substantive justification but must also be based on law. Any limit to a right that is not so based – even one that is substantively justified in the abstract – is likely to prove a threat to a right because of the discretion afforded to the authorities. This insistence that limits be channelled through law is not just procedural but takes in substantive considerations also. Broken into its component parts this demands the prior existence of law (common law can count as law) and that the law possess certain qualitative attributes such as “accessibility” and “foreseeability”. In the established case law of the court (of human rights), “accessibility” refers to the degree to which the law can be comprehended (via legal advice if necessary) and “foreseeability” refers to the precision with which it is cast. A high degree of precision enables individuals to plan their actions rationally so as to avoid entanglement with the law. Foreseeability is therefore at a premium where fundamental rights are at stake. Conferring discretion on officials is not, as such, inherently violative of Article 8. What matters is how adequately that discretion is bound by law and the adequacies of the remedies available in the event of its misuse.
16.31. In this context, there is a complete absence of regulation in respect of covert surveillance including audio and audiovisual surveillance. This should not be allowed to continue. It is not necessary to repeat in their entirety the various recommendations of the Law Reform Commission in this regard. The recommendations are detailed and provide a very important and useful template by which the right to privacy in this regard may be vindicated and protected in a practicable manner. Draft headings of a bill as set out in the Law Reform Commission Report provide draft provisions for the regulation of covert and overt surveillance. It sets out a procedure whereby such surveillance might be authorised initially by a chief superintendent and subsequently by a Judge of the District Court. Further provisions might be required in relation to the circumstances described in relation to the Ballinasloe case; and appropriate provision would also have to be made for the circumstances contemplated by the Commissioner of covert eavesdropping in a Garda station on a visit between a prisoner and a relative or friend in “extraordinary excusing circumstances”. The latter could be done by an amendment to the custody regulations, whereby a person making a phone call or receiving a visit might be informed that the visit will be monitored electronically and may be recorded, or that a telephone call may be monitored and electronically recorded. The Tribunal does not make any such recommendation in respect of the electronic monitoring of visits by solicitors to their clients which should not take place, and which under the Constitution must take place in private.
16.32. On a more general level, consideration should be given to ensuring that where authorisation is required, for covert or overt surveillance by electronic means, it should be sought from a judge rather than from a chief superintendent (as suggested by the Law Reform Commission). In practical terms, as with the obtaining of warrants, there should be no difficulty in seeking an authorisation for covert eavesdropping from a judge under any proposed legislation. This has the advantage of providing a degree of independence in respect of the decision which the Tribunal, The Law Reform Commission Report on Privacy pages 199-200 regrettably, has found to be lacking in respect of the issue of section 29 warrants in the course of its inquiries when issued by a superintendent of An Garda Síochána. The Tribunal recommends the urgent implementation of the recommendations of the Law Reform Commission Report of 1998 relevant to the specific areas referred to in the preceding paragraphs.