- Last Thursday, 09/05/2014 myself and a friend were canvassed for the local elections by an elected councillor, Sean Bellew, who is a professional barrister. When asked about the legality of the recording of intraparty conversations he was quite definite that such recording was illegal. Read more about this in the email below. I note that to date (14th of May) Sean seems to have avoided either acknowledging receipt of providing a response to the questions posed to him by me.
- The event which originally piqued my interest in addressing the question in this case study occurred on 04/03/2014. I'd spent the morning walking around Ennis in County Clare and I was sitting having a bowl of soup, a toasted sandwich and a cup of tea in the afternoon. The radio was on in the background and as there were a number of people talking in the vicinity it was difficult to hear the details of what was being discussed. The program on a was "The Last Word" with Matt Cooper. He was interviewing someone (because of the background noise I wasn't sure who the interviewee was at the time) and they were discussing a press release which had been issued earlier By the Ex-Confidential Recipient, Oliver Connolly. Mr Connolly had remained silent for a few weeks after media exposure of transcripts of a conversation between himself and the whistleblower (who at that time was not being held in the high regard and accepted credibility by those in positions of power and many of those in the media, contrary to the present position in mid-May 2014 where both he and retired Garda John Wilson are seen as public heroes with our political leaders falling over themselves with sentiments such as "not having a problem apologising to Sgt McCabe"). It seemed that Mr Connolly was troubled with the double bind of having to remain silent because he held this "confidential" position and therefore felt he could not discuss his interaction with Sgt McCabe.
Suddenly however, Mr Connolly seem to have find some way of getting over his confidentiality issues and was now "out there" having issued a detailed press statement of a number of pages on his headed paper which identified him as a legal eagle with a long list of legal qualifications, making it clear that he was a person of some personal and professional integrity and stature and that as such his comments and the evidence therein should therefore be accepted by the reader.
During the interview with Matt Cooper and the interviewee (whom I later learned to be the journalist Mick Clifford) and given that I was trying to focus on the detail of the discussion through a barrage of background noise it appeared to me that Mr Connolly was specifically claiming that Sgt McCabe had acted unlawfully when he had covertly and without the knowledge and permission of Mr Connolly recorded the conversation between them. As the discussion between Matt Cooper and Mick Clifford continued I ended up with the impression because of things Matt Cooper said that it appeared to be the received wisdom on the programme that this recording by Sgt McCabe was in fact illegal.
This issue of the legality or otherwise of the recording by one party in a conversation (whether it be over the phone or in the presence of each other) of that conversation has been a recurring theme in my life over the last 20 years. In that time I have faced numbers of situations where my recollection of what had been stated in a conversation in which I had been a participant had been incorrectly re-presented by others in order either to cause damage to me offered them to run away from their own personal responsibility.
I had spent a lot of time over the years, seeking to get unequivocal clarity about the legal status of the recording of such conversations. As has been my experience right through this present period, there has and continues to be a widespread belief amongst professionals, institutional and public service administrators and the public at large that recording of intraparty conversations by one of the parties is both illegal and immoral. In following the comet trails on sites such as independents.ie and politics.ie during the early periods of the whistleblower saga, I noted many of the comments were highly indignant, suggesting that Sgt McCabe's action of recording conversations was low life stuff, if not entirely illegal.
A number of months ago, there was similar discussion about the legality of such recordings as a result of media exposure of telephone recordings involving the politician Michael Lowry. I followed such discussion particularly on politics.ie, in the hope that I might hone my understanding of the legalities of such recordings. Sadly this environment seemed more likely to involve second-hand anecdotes, unreferenced or unclear examples of practices in other jurisdictions and many irrelevant and distracting comments.
As far back as 13/08/2006 I had become aware of specific acts which related to the interception of the transmission of data that would occur in a conversation such as a telephone conversation. This reference material and the surrounding case made it quite clear to me what was already patently self-evident, namely that if I'm party to a conversation that at any time, limited only by the accuracy of my recall, I can refer to the content of this conversation (notwithstanding the questionable practices and restrictions that exist in the secret "In Camera " Family Courts)
As soon as I had the opportunity I went online to try to source press release by Mr Connolly and the podcast of the radio programme which I had been listening to.
TO BE Continued.........................
See reference and supportive material below. Suggestions critiques, (spelling error correction or factual correction, references links etc welcome to email@example.com
As a practical experiment, over the last few years I have often posed the following question to people from all walks of life whom I've met along the way:-
"Do you think it is illegal or legal for a person to record a conversation that they are a party to without the consent of the other party?"
Almost invariably the response that I got from those whom I questioned was that not only did it think it was illegal, but they also felt quite almost morally indignant, suggesting that someone who would make such a recording is essentially a less than honourable individual. They would respond to me with comments such as :-
"are we going to end up in a society where everybody is watching every single word we say?"
"How can it be right if we have to parse everything we say,, for fear of being recorded?"
If you consider the two most recent examples below of how our political elite appear to be both clueless and quite disinterested in clarifying what the law actually is in relation to recordings, it is not surprising that so many members of the public are poorly informed, at best often confused and most likely holding an incorrect belief in relation to intra-party recordings.
Tonight May 12th 2014, two Sinn Fein canvassers to my door stated such recording is illegal.
- Ms Fitzgerald also said “the highest levels of legal support and protection will be given to Garda whistleblowers. "
It is time for Minister Fitzgerald to answer the question:- Was the Recording of conversation by Sgt. McCabe, Irish whistleblower, Lawful or UnLawful?
from: Liam O Gogain <firstname.lastname@example.org>to: email@example.com
cc: Liam O Gogain <firstname.lastname@example.org>
date: 3 June 2014 14:34subject: Fwd: Unlawfulness of recordings re You and Sgt .McCabe ?: - Call for clarityDear Minister Fitzgerald,
I wish you well in your new appointment as Minister for Justice, and hope that your term of office brings about an improvement in the level of confidence that the public has in their Garda force, which you have acknowledged publicly is lacking at present. I also hope that you will assist in bringing about accessible, pragmatic, reliable and enforceable measures which create a protective and supportive environment in which future putative whistleblowers can serve the public interest by exposing wrongdoing at many levels and that these measures are couched in such a way that they are clearly understandable to the ordinary citizen.
Mindful of my aspiration in this regard, a draw to your attention that I wrote to you previously 25 March 2014 16:16, under the subject heading "Unlawfulness of recordings re You and Sgt .McCabe ?: - Call for clarity"
In common with the vast majority of your Oireachtas colleagues, I received neither an acknowledgement of receipt nor a response in relation to the issues I raised, concerning the ongoing controversy about the whistleblowers and in particular the issue of clarifying whether the recordings made by Sgt McCabe, of conversations he had had with the former confidential recipient, were lawful or unlawful.
I appreciate that you are now in a different position as the new Minister for Justice. I also note that you have set out your stall, as Minister, to usher in a new era and a new culture to restore public confidence in policing. I understand that you have also stated that you will ensure that “the highest levels of legal support and protection will be given to Garda whistleblowers. "
I formally request and that you as Minister address the following 2 issues for me:-
Firstly, the most immediate and most fundamental contribution you can make towards providing protection and support to whistleblowers, whether they be within the Garda or in other areas, is to provide, without further delay and any obfuscation, a clear, easy-to-assimilate statement, specifying whether the recordings made by Sgt McCabe, the presence of which is now well known everywhere in the public domain, were lawful or unlawful.
Noting the weighty influence of the highly qualified Oliver Connolly in terms of his public statement claiming that the recordings by Sgt McCabe were unlawful, a position from which he has been unwilling and/or uninterested in either resile from or reaffirming, with credible references, leaves the unhealthy public perception to other putative whistleblowers, that they may be acting unlawfully in recording conversations they are a party to. As I have previously explained, such recordings are often the critical piece of evidence that powerless whistleblowers have in their battle to expose corruption.
Secondly I wish you to clarify whether your undertaking to provide “the highest levels of legal support and protection will be given to Garda whistleblowers " only applies to members of the Garda or are you going to provide similar protections for all citizens within the state, including myself. Personally, I have a number of issues where, in the public interest I wish to contribute as a whistleblower. However mindful of the potential vindictive mindset within Powerful institutions, I feel particularly exposed and vulnerable when I see the claim of unlawfulness of recordings of conversations, having been made by Oliver Connolly (who as I understand it was connected with Fine Gael and would have previously had the full support of the Cabinet including yourself), being left hanging out there in the public domain as believable.
Finally, mindful of media coverage suggesting that a previous occupant of the your role as Minister for Justice, Dermot Ahern, has been able to claim that he personally was not made aware of communication to him by Sgt McCabe a number of years ago, I have concerns that this communication may in some way similarly not be brought to your attention.
Consequently, I would appreciate if you would confirm to me, by return, that you personally have had sight and/or knowledge of the contents of this communication to you.
I am hopeful that you can join with me in performing a major contribution to a more just society and the public interest by using your position to provide clarity on this issue.
I invite you to review the material I am collating at https://storify.com/Liamog/were-the-recording-of-conversations-by-sgt-mccabe … , which is intended to serve as an information resource for members of the public and for people in positions of influence and power such as yourself.
Liam Ó Gógáin
- The Guerin Report. LInks below for the PDF of the report and also an OCR version
- Ms Fitzgerald said it was time to listen to whistleblowers and she paid tribute to the work of Sgt Maurice McCabe.
- Just answer the question Taoiseach, if you really support whistleblowers!" Was the Recording of conversation by Sgt. McCabe, Irish whistleblower, Lawful or UnLawful?
"Mr Kenny said he had “no problem apologising” to Sgt McCabe for the length of time it took for his concerns to be addressed."
- Oliver Connolly goes public, accuses Sgt. McCabe, saying his recording of their conversation was unlawful. He has still neither backed up or resiled from that position as of today 9th May 2014. See correspondence to him in this regard below, to which he has not replied, by 12/05/2014
- A good place to start for new Justice Minister Frances Fitzgerald would be to provide unequivocal clarity in relation to the law on intraparty recording and to make it absolutely clear that it was perfectly lawful for Sgt McCabe to have recorded his conversation with the ex-Confidential Recipient Oliver Connolly.
This will provide vital and critical support for future putative whistleblowers who almost by definition rely on small scraps of evidential detail often in the form of conversation that they will have recorded with more powerful people who are abusing their positions.
- In Her Dáil statement on report by Seán Guerin SC, Statement by Frances Fitzgerald TD Minister for Justice and Equality, on the 15th May 2014, Minister Ftizgerald stated that "The highest levels of legal support and protection will be given to Garda whistleblowers."
Does this only apply to Garda Whistleblowers? What about the rest of us citizens? Are we not Equally entiled to such Legal support and protection?