Potential eavesdropping on solicitor/client consultations?

benway

Given today's revelations, what are people's thoughts on the potential ramifications *if* it is found that solicitor / client telephone consultations were being recorded?

On the current state of the law as I understand it, it's hard to see how it might taint admissions made in custody unless it can be shown that (a) the recordings were in fact listened to by investigating Gardaí; (b) contained material that was in some way prejudicial (i.e. went beyond advice to exercise right to silence); (c) the conduct of the interview was influenced or coloured by material obtained through eavesdropping.

However, the recent Gormley decision does seem to signal the advent of a harder line with regard to the right to legal advice.

Plus, the ECHR in S. v. Switzerland held that the right to a private consultation was a constituent element of the right to a fair trial, although in that case it was shown that lawyer/client consultations had, in fact, been eavesdropped on. Having said that, the terms of the judgment are pretty strong, would certainly seem to encompass any interception of communications:

The Court considers that an accused’s right to communicate with his advocate out of hearing of a third person is part of the basic requirements of a fair trial in a democratic society and follows from Article 6 para. 3 (c) (art. 6-3-c) of the Convention. If a lawyer were unable to confer with his client and receive confidential instructions from him without such surveillance, his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical and effective (see inter alia the Artico judgment of 13 May 1980, series A no. 37, p. 16, para. 33).

Later decisions like Brennan v. UK and Öcalan v. Turkey emphasised that "[t]he relevant issue is whether, in the light of the proceedings taken as a whole, the restriction has deprived the accused of a fair hearing."

In E&W it was held that there was no such violation in circumstances where, while there was a lack of privacy in the facilities provided for consultations, no actual eavesdropping could be shown. There's also a fairly recent House of Lords decision refusing reliefs by way of judicial review in respect of the surveillance of prisoners' solicitor/client consultations, although the provisions of the Regulation of Investigatory Powers Act 2000 in that jurisdiction mean it's probably of limited relevance here.

coylemj

I doubt if any solicitor ever conducted any kind of 'consultation' with a client on a Garda station phone line. Since the days of manual exchanges and eavesdropping postmistresses, the culture in Ireland is that 'you never know who's listening' when making a phone call on a landline (I've even come across the same attitude with mobile phone calls) so I'd be amazed if it transpired that any solicitor had any conversation with a client beyond 'tell them you're saying nothing until I get there''.

benway

I'm sure you're right, and I'd be very, very surprised if there are any successful appeals or dismissals arising out of this. Nevertheless, very unsatisfactory situation - can imagine that the Gardaí working in some of those stations could easily raise privacy issues with the blanket surveillance, also.

Fred Swanson

This post has been deleted.

benway

Not entirely sure that's the case, tbh, but I'm sure more details will become public in the fullness of time.

I see John Devane has wasted no time in jumping on the bandwagon, as well as that SCC adjournment yesterday - sincerely hoping that there are no embarrassing revelations to follow on from today. It would hardly be unprecedented.

It might be slightly hysterical, but I'm nearly inclined to agree with the Indo's "veteran court official [who] said: 'This is the most serious potential threat I have seen to the progress of trials over the past 20 years.'" - imho Tom O'Malley is right on the money in his IT piece.

Pat Mustard

Here's a better link to DPP v Gormley.

Law Society response, to Garda taping.

Pro Hoc Vice

It amazes me that people in this state still think its a good idea for one Minister to control AGS the Military and to be the regulatory body for the Solicitors, Barristers and Judges. Seems a great idea to me if you want an end to civil liberties, which it seems sadly ended years ago according to these revelations.

coylemj

Pro Hoc Vice wrote: »

... and to be the regulatory body for the Solicitors, Barristers and Judges

Since when was any Minister for Justice the 'regulatory body' for judges?

And isn't the Bar Council the 'regulatory body' for barristers?

I know the legal profession doesn't like Shatter but let's not knock him or bundle the military into his brief to show that he has too much power when we all know that Defence was combined with Justice purely to allow the creation of a minister for children because of the constitutional limitation on the number of cabinet ministers.

Pro Hoc Vice

coylemj wrote: »

Since when was any Minister for Justice the 'regulatory body' for judges?

And isn't the Bar Council the 'regulatory body' for barristers?

I know the legal profession doesn't like Shatter but let's not knock him or bundle the military into his brief to show that he has too much power when we all know that Defence was combined with Justice purely to allow the creation of a minister for children because of the constitutional limitation on the number of cabinet ministers.

It was his proposal to appoint the majority of the members of the bodies under the new bill. In relation to judges it is the aim of government to regulate them aswell.

http://www.irishtimes.com/business/sectors/retail-and-services/imf-rejects-claims-it-sought-to-compromise-irish-judiciary-1.1737717

There may very well be a reason why justice now involves defence but it still means one minister controls both. I don't like it and I don't like what he wanted to do with regulation. This fiasco just goes to prove why it's a bad idea.

http://www.thejournal.ie/shatter-lawyers-appointment-904912-May2013/

BTW I never said the minister was I said people think it's a good idea.