The Supreme Court has dismissed five appeals challenging the admission of Garda audio surveillance evidence in criminal trials, holding that the evidence did not breach section 10 of the Criminal Justice (Surveillance) Act 2009.
The appeals arose from convictions in the Special Criminal Court. Three appellants had been charged with membership of the self-styled Irish Republican Army, and two with providing assistance to the organisation. The prosecution alleged that an internal inquiry into a failed operation took place at a temporarily unoccupied rental house in Castleknock, County Dublin, on 7 and 8 August 2015. The appeals concerned the handling and use of recordings made under a District Court surveillance authorisation, whose validity was not in issue.
The Special Criminal Court and Court of Appeal had found that Gardaí breached section 10 by storing and accessing the recordings without ministerial authorisation, but held that the breach did not make the evidence inadmissible because it occurred after the recordings were lawfully gathered. The appellants argued that the trial court should have held an inquiry under the principles in People (DPP) v J.C. and that the distinction between gathering recordings and later handling them was artificial. The Director of Public Prosecutions disputed the alleged breach and argued that later handling did not affect admissibility.
In a judgment delivered by Justice Iseult O’Malley on 4 May 2021, the Supreme Court concluded that section 10 had been misinterpreted by the lower courts. Read in the context of the Act as a whole, the provision did not give the Minister exclusive control over access to surveillance material for an investigation or trial. The Court said the recording process, including listening to conversations as they were recorded and storing them on the recording device, was covered by the judicial authorisation. It also concluded that investigators, prosecutors and others entitled by law to receive evidence for trial did not need separate ministerial authorisation under section 10.
The Court held that the evidence did not establish a breach of the Act or a violation of the appellants’ rights. It did not order a J.C. inquiry. Justice O’Malley said, obiter, that a sufficiently serious breach in the later handling of lawfully obtained evidence might in another case justify refusing to let the State rely on it. She said a trial court could first ask whether the breach was serious enough to warrant exclusion. Even if the lower courts had been right about a section 10 breach, she said, the facts here would not have met that threshold.
The Court dismissed all five appeals. The judgment did not overturn the convictions.