THIRTY SEVEN
Dolores Maxwell.com
 
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The account of the 01 Feb 2011 meeting between Damian Brass and Saoirse raises many questions about Dolores' solicitor, Damian Brass. We haven't sought to provide a lot of background or documentation about this because, as we explained on the page itself, it is out of sequence with the narrative of Dolores' Last Year. There are also events happening at this time that makes us hesitate to share with our readers the full weight of the knowledge we have gained concerning this area.

However, we were remiss in not anticipating and addressing one area when publishing that account. After publication of Damian Brass and Saoirse we received comments that in essense raised the question if it was legal to record this meeting.

This meeting was of course recorded by Saoirse. It was recorded covertly without the prior consent or knowledge of Damian Brass. It is one of many, many recordings of conversations, meetings and telephone calls with various bodies made when Saoirse became very concerned that Dolores was in a very dangerous and even life-threatening situation. Sadly, her fears were well founded.

Is it legal to covertly record private conversations without prior consent in Ireland? Yes it is, and no it isn't. If a person or any other entity records a conversation or telephone call and they are not a party to that conversation it is illegal. The only exception to this is when the third party is authorised by the government and obtains a legal and valid warrant. As say, during an investigation by the Gardai.

If a person is a party to the conversation or phone call then it is legal to record it with or without prior consent of the other parties. For telephone calls specifically, it became legal to do so in 1993.

The POSTAL AND TELECOMMUNICATIONS SERVICES ACT, 1983 strictly forbade intercepting telecommunications messages, except for certain circumstances, as explained in Section 98. Section 98, Sub-section (5) says this:
(5) In this section, “interception”" means listening to, or recording by any means, or acquiring the substance or purport of, any telecommunications message without the agreement of the person on whose behalf that message is transmitted by the company and of the person intended by him to receive that message.
So unless all the parties involved in the phone call were aware of and agreed to be recorded, any recording was illegal.

The INTERCEPTION OF POSTAL PACKETS AND TELECOMMUNICATIONS MESSAGES (REGULATION) ACT, 1993 changed that. Section 13 says this:
(6) In this section ‘intercept’ means listen to, or record by any means, in the course of its transmission, a telecommunications message but does not include such listening or recording where either the person on whose behalf the message is transmitted or the person intended to receive the message has consented to the listening or recording, and cognate words shall be construed accordingly."
So since 1993, if at least one of the parties in a telephone call agrees, a recording of that call is legal. In a Barristers Professional Conduct Tribunal ruling in 2006 Tribunal chairman John Gleeson SC illuminates this:
“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."


Of course, Damian Brass could have recorded this conversation himself. The Irish Law Society's “A Guide to Professional Conduct of Solicitors in Ireland” offers this advice to solicitors:
A solicitor may make an electronic recording of a conversation with a colleague, client or third party. If a solicitor proposes to record a conversation, he should warn the party to be recorded that the conversation will be recorded. There may be exceptional circumstances where such warning need not be given.
 

Update 22 December 2012:

The legality of recording a conversation in which you are a party to is also seen in the conviction of pig farmer Donal Connaughton from Co Longford. He was found guilty of two counts of false imprisonment, two charges of threatening to cause serious harm, one count of assault and two of criminal damage.

Among the evidence presented to the jury was a 22 minute audio recording of the event that led to his conviction. Here's the account from the Irish Independent Newspaper

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Saoirse herself has had cause to make a statement concerning these recordings. Here is an excerpt from her statement:
I was an active participant and party to all these conversations. I recorded these conversations as a private individual and not in the course of representing or employment in any business, company or other organization.

I began these recordings when I became aware of the abuse and isolation Mom was suffering from Damian Brass' client and co-Executor Ethan Maxwell and sought to do whatever I could do to enlist help in aiding her. They served as a contemporaneous record and as a backup to my written notes.

I have worked as a journalist for over 15 years in both the US and Ireland, and am aware of the legality or illegality of recording conversations in the various jurisdictions I have worked in, with and without prior consent. The Postal and Telecommunications Services Act 1983 was amended in 1993; Section 13 of the 1993 Act provides that the definition of "intercept" does not include listening or recording where either the person on whose behalf the message is transmitted or the person intended to receive the message has consented to the listening or recording.


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Australian Elder Abuse Awareness Campaign

[Editor's note: As always, we seek and encourage anyone with knowledge of Dolores' life and/or the events presented here to contribute to this site. Memories, anecdotes, photos and documents are more than welcome. Clarification, correction and alternative views are encouraged and welcomed. Submissions ]

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