Supreme Court: Admissibility of surveillance audio recordings upheld against convicted IRA members

Killian Flood BL

About this case:

• Citation:
  [2021] IESC 31
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Ms Justice Iseult O'Malley

In so ruling, the court determined that section 10 of the Criminal Justice (Surveillance) Act 2009 did not require the Minister for Justice to individually authorise the people who could handle and store the surveillance evidence during the course of an investigation.

It had been argued by the accused that section 10 of the 2009 Act prevented access to documents other than by people who were specifically authorised by the Minister and, to the extent that this was not complied with, the evidence used against them was inadmissible.

The accused also challenged the decisions in the Special Criminal Court and the Court of Appeal that refused to make an inquiry under People (DPP) v. J.C. [2017] 3 I.R. 417, but were unsuccessful.

Background

The five accused men were convicted in the Special Criminal Court of either being members of the IRA or assisting that unlawful organisation. Part of the evidence that was used against the defendants was audio surveillance recordings taken from inside the defendants’ meeting room by a member of the National Surveillance Unit. An ex parte application was granted by the District Court which authorised the use of surveillance in the case based on section 5 of the 2009 Act.

The evidence was taken from the live feed of several microphones and saved immediately on electronic devices. The recordings were uploaded to a computer hard drive and CD copies of the recordings were made. A CD was given to the Special Detective Unit to continue the investigation.

The recordings were shared in the SDU between officers from time to time during the investigation. Transcripts were produced. Further, copies and samples were provided to commercial companies with a view to making the recordings more presentable to court. Ultimately, the recordings were provided to the defendants via disclosure and played before the Special Criminal Court and the public gallery.

During a voir dire hearing at trial, the defendants argued that section 10 of the 2009 Act only allowed individuals to have access to the documents during the investigation if the Minister for Justice provided authorisation to those people. Since no regulations had been prescribed by the Minister, it was submitted that none of the investigating officers were acting lawfully when they handled the evidence. As such, it was argued that the evidence was inadmissible pursuant to the J.C. ruling.

Both the Special Criminal Court and the Court of Appeal accepted the submission that the Act required regulations to be made regarding authorisation to access documents and that this had not been done. Accordingly, it was ruled that the documents were not handled lawfully by the investigators. However, it was also ruled that the exclusionary rule of evidence did not apply to the handling of evidence, but rather the gathering of evidence, and therefore held that the evidence was admissible.

Supreme Court

The primary issue before the Supreme Court was the interpretation of section 10 of the Act. The parties provided lengthy submissions on the admissibility of the evidence. The accused argued that section 10 was “all-encompassing” and was essential to the operation of the Act. Without Ministerial regulations relating to who could access documents, there was a continuing illegality in the investigation process, it was argued. It was also argued that the exclusionary rule in J.C. extended to the storage of evidence as well.

The Director of Public Prosecutions argued that it would be absurd if investigating gardaí required authorisation to access evidence gathered in a criminal investigation. It was submitted that the defendants’ interpretation gave the Minister an unfettered power to refuse to provide access of the documents to anyone, including a court.

Giving judgment in the case, Ms Justice Iseult O’Malley began by outlining some key principles relating to the case, including that the court was required to consider the Act as a whole when interpreting the provisions and that the legislation did not need to be construed strictly if it did not impose a criminal sanction.

Turning to the substance of the Act, the court held that the intention of the Oireachtas was to make surveillance documents available to prevent serious crime against the State. Assessing section 13 of the Act, the court noted that disclosure of the documents was limited to certain specified individuals, including the DPP, the Garda Commissioner and any person “otherwise authorised by law”. It was held that this third category necessarily had to include lawyers and investigators relating to a case because the DPP/Garda Commissioner could direct their officers to act on their behalf.

After examining the wording of section 10, the court concluded that the section did not confer on the Minister an exclusive power to authorise access to surveillance evidence for the purposes of a criminal investigation or a trial. Such power “would involve participation by the Minister in Garda operational matters to a wholly unprecedented extent, for no apparent reason,” the court said.

Further, if the defendants’ interpretation were correct, the Minister would have the power to prevent gardaí from access the collected evidence, thereby overriding a decision of an independent judge who would have provided an authorisation under section 5 of the Act.

The true meaning of section 10 was merely to ensure that old documents were securely stored, with responsibility for this storage lying with the Minister. Such responsibility may include the Minister making regulations (at her discretion) on who could access those documents. The court held that a restriction of access under section 10 did not apply to documents which were the subject of an ongoing investigation or trial.

In expressly obiter comments, Ms Justice O’Malley suggested different systems of access which might by imposed by the Minister, such as only providing access to officers of a specified rank or storing the documents in a specified place.

The court also commented that it was not appropriate to embark on a J.C. inquiry “where a breach of any relevant statutory rule, occurring after evidence has been lawfully obtained, can be identified but where that breach has not in any way affected the integrity or probative value of the evidence.” It was suggested that, instead, a court should ask the threshold question of whether a statutory breach was of such a kind that could warrant the exclusion of otherwise admissible evidence before engaging in a J.C. inquiry.

Conclusion

The court dismissed the appeals of the defendants. The court overturned the Court of Appeal in part, holding that there was no breach of section 10 in the case, which had no relevance to the process of investigation or trial. The court upheld the Court of Appeal’s decision that the surveillance evidence was admissible.