I was away from my keyboard earlier this evening and missed this chat with a Member
just got an email from caranua, they are refusing to listen to any recorded conversation, curiouser and curiouser.
Caranua refusing to respond to legal correspondence....Next appointment on tuesday next.
The appointment refers to seeing a Legal Adviser!
There has been a lot of discussion as to whether or not you should record conversations with Caranua?
So Read on >
Q&A: What are the legal implications?
Thu, Mar 27, 2014, 06:31
Source - http://www.irishtimes.com/news/crime-and-law/q-a-what-are-the-legal-implications-1.1740070
Ruadhán Mac Cormaic
Is It illegal to record a phone call?
Not necessarily. Under Irish law, it is not illegal for a person to record a call if he/she is party to that call. However, under the Postal Packets and Telecommunications Messages (Regulation) Act 1993, recording a phone conversation between other people without their authorisation amounts to interception – a serious criminal offence.
What form of authorisation is needed?
The 1993 Act permits the recording of phone calls provided that either the caller or the receiver consents to it. This is why, for example, when you ring your bank or insurance company, an automated voice informs you that you may be recorded. No breach of the law occurs in that situation as you are deemed to consent to the recording if you stay on the line. If there was no such warning when calls were made to or from Garda stations, one legal source says, a breach of the Act may well have occurred.
In what circumstances can gardaí legally intercept calls?
The Minister for Justice can give a three-month authorisation, by written warrant or orally in exceptionally urgent cases, but only for the purposes of a specific criminal investigation or in the interests of the security of the State. Specific conditions, set out in legislation, must be met. The Act provides for applications to be made by the Garda Commissioner or the chief of staff of the Defence Forces in writing. The application goes to a nominated officer who considers it at first instance and then passes it up to the Minister. Such authorisations are subject to review by a High Court judge.
What is the penalty for unlawfully intercepting communications?
It’s a serious offence. On summary conviction, the fine can be up to €800 and/or imprisonment for 12 months. On indictment the fine can be up to €50,000 and/or imprisonment for five years.*
What about data protection law?
The Data Protection Acts state that a person’s information should only be collected lawfully, fairly, for specific purposes only, and that it should be retained for no longer than necessary for those purposes. Those principles would be breached if gardaí were engaged in blanket recording and retention of calls, particularly without informing the individuals concerned.
What if gardaí were recording conversations between suspects and their lawyers?
Such discussions have legal privilege and could never be used as evidence in court. If phone calls between solicitors and their clients were being listened to, it would come close to “perverting the course of justice”, one legal source said.
Could there be implications for cases involving disclosure?
Yes. Gardaí and the Director of Public Prosecutions have an obligation to furnish to defendants any material that is of relevance to their case and the courts have interpreted this broadly, one lawyer said. If a person called to a Garda station to speak to a garda about a case, that communication – if recorded and retained – should be the subject of the normal disclosure procedures. A criminal lawyer says this week’s revelations could lead to many applications for disclosure of such calls, with potentially wide-ranging implications for live or pending cases.
Could convictions be set aside?
One of the Government’s concerns is that live cases could be jeopardised or that convictions could be deemed unsafe as a result of the recordings. For example, if a person could show he/she was convicted in circumstances where gardaí were in possession of secretly recorded information that tended to help the defence but did not disclose that information, a conviction could be set aside.
*This article was edited on Thursday, March 27th, 2014
Then there's this >
Admissibility of recorded telephone conversations?
The Barristers' Professional Conduct has made an interesting ruling on the admissibility of telephone conversations recorded by one party. (The decision was in 2006 but appears not to have attracted much attention then.) From the Sunday Business Pos
The Barristers Professional Conduct Tribunal has ruled that a recording of a phone call by a barrister allegedly racially abusing his Romanian client is admissible in proceedings for professional misconduct...
The Bar Council is investigating claims that the barrister, who was acting for the wife, divulged private information about him in a phone call to his secretary. The woman tape-recorded the remarks...
The barrister’s counsel argued that the tape was inadmissible because it had been made without his consent, so was in breach of the Postal and Telecommunications Services Act 1983.
He also claimed that it violated the barrister’s constitutional right to privacy and breached the European Convention on Human Rights. But the tribunal ruled that the 1983 act had been amended by the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993.
Under that legislation, a telephone conversation can be legally recorded by one of the parties involved, without the other’s consent. Tribunal chairman John Gleeson SC said:
"The fact that one party to a telephone conversation records it does not, in the opinion of the tribunal, give rise to a constitutional difficulty or a breach of the European Convention on Human Rights.
"After all, a party to a telephone conversation is always capable of giving evidence of the contents of that conversation without any recording apparatus, whether by making a contemporaneous note or by simply recalling in evidence what was said during the conversation."
René Rosenstock has more discussion
of the legal issues associated with recording telephone calls in Ireland. The Data Protection Commissioner has a case study on the data protection issues involved here
(Many thanks to Ronan Lupton for pointing out the Sunday Business Post story.)