Eoin Ó Faogáin later wished he had pulled out his phone and started to film earlier.
It was late evening on Wednesday 6 July, around 10.30pm when he and his friends were stopped by gardaí on Portland Row in the centre of the city. In front of them, a few other cars were waiting in line. A general traffic check. Tax. Insurance. NCT.
It was all in order but they were asked to pull over, says Ó Faogáin, and a to-and-fro conversation began. He and his friends couldn’t understand why they couldn’t be on their way.
As Ó Faogáin remembers it, it wasn’t an aggressive exchange. More passive-aggressive. When his friend was told to get out of the car, he told Ó Faogáin to start filming, just in case.
Ó Faogáin watched as his friend was hand-cuffed and put in the back of a vehicle. “Can you tell me how he’s being arrested?” Ó Faogáin asked the Garda, as he holds the shaky camera.
“Can you explain why he’s being arrested, for … by any chance?” he asks again.
“Oh, by the way, I’m not giving you permission to video this or produce any social media,” says a woman Garda with fair hair. “You don’t have permission. Alright?”
For a moment, Ó Faogáin was unsure about what to do. “There was a reluctance in me, at that point I nearly put the phone away,” he said.
Did the garda have the power to forbid him from filming? Should she have?
Some argue that police work in Dublin would go more smoothly if interactions between gardaí and members of the public were filmed – perhaps by both body cameras worn by the gardaí, and, sometimes, cameras held by members of the public.
This is done, increasingly, as a matter of course in both the US and the UK. But there are complications, including issues of data storage, and of privacy, particularly with gardaí using body cameras.
“There are good policy reasons justifying filming in some cases, there are good policy reasons why filming should be restricted in other cases,” said TJ McIntyre, a lecturer in law at UCD, and the chairman of Digital Rights Ireland.
“That’s a discussion we simply haven’t had in Ireland to date,” he said.
Filming the Garda
Ó Faogáin didn’t have to stop filming, despite what the garda said, according to McIntyre.
“In general, there is no legal basis for telling people they can’t film the gardaí,” McIntyre said. “You do get an element of spoofing in individual interactions where you might get a bit of bluster that you’re not allowed to film, but there’s no legal basis to that.”
Depending on how you’re filming or where they’re standing while you’re doing it, you could be charged with a public-order offence, though, McIntyre says.
“For example, by being close to the scene of an arrest, you are obstructing the function that is being carried out,” he says. “If you were directed to move on but you didn’t, that would be the offense … not the filming itself.”
It’s hard to know how much gardaí stick to those rules.
Spokesperson Brendan English in the Garda Press Office said he couldn’t comment on individual cases, and whether what Ó Faogáin was told was an abuse of Garda authority.
There aren’t statistics available for how many complaints have been made to the Garda Siochana Ombudsman Commission about gardaí interfering with people filming in public.
But if you search online for videos of gardaí as they go about their work in the city centre, or as they police protests against Irish Water, you’ll find tens of videos. And in some, gardaí are telling people to stop filming.
It’s not necessarily the case that gardaí don’t like being filmed while at work, says Jim Mulligan, the Deputy President of the Garda Representative Association. “News cameras turn up in places and they’re used to being filmed,” he said.
“It’s different if you’re are standing at a protest and you’re in the front line and somebody shoves a phone right up to your nose. It’s quite intimidating, you know?” said Mulligan.
But most guards would just stand there and take it, he says.
Holding Gardaí Accountable
In the United States, the advent of camera phones led to significant public debate about the right to film police as a form of freedom of expression. The idea is simple: it’s a way to hold police accountable in the performance of their duties, says McIntyre.
“That’s obviously a very appealing way of looking at it, because you’re tying it to the notion of them carrying out a public function, and being accountable in how they carry out that public function,” he said.
This idea is no less appealing in Dublin: it’s why Philip Campion picked up his phone one March afternoon last year, and started to film a garda as he arrested a homeless man in a doorway in Henry Street.
“I stopped just for two seconds, it didn’t look right at the start. I decided to take my camera out,” said Campion. There was significant media attention in national publications and websites after Campion uploaded the footage to social media.
But after an investigation, the Garda Ombudsman found that the force used — which included pepper spray — was proportionate.
Campion doesn’t regret getting out his phone, though, and still feels the garda used excessive force. “The angle that my camera was at didn’t do it justice, but I saw it with my own eyes,” he said.
That highlights an essential issue with filming: while catching something on camera might show what happened, not everybody will agree on what they are seeing.
What you see, is shaped by what you believe, and how much you trust police, or gardai, to begin with. That’s clear to anybody who has read the comments below footage of the anti-Irish Water protests.
Holding the Public Accountable
Over the last year, too, the Garda Representative Association has been calling for body cameras for their officers. Some have used them already at protests, but that seems to have been on an ad hoc basis.
“It kicked off with some of the protests, where they were being filmed and that (…) and I think some of the water workers had cameras on their helmets,” said Jim Mulligan, of the Garda Representatives Association.
“It’s more of a deterrent, they saw. It would change people’s behaviour towards them, slower to call them names and that, you know,” Mulligan said. “If somebody’s being filmed, it brings the tension and the situation down very quickly. It tends to calm things down.”
Take the attack on two garda on Manor Street in early August, said Mulligan. “Had they been wearing body cameras, if the group of youths were aware they were wearing body cameras, would they have done what they done? They may not have.”
It’s something that Francis Doherty, head of communications at Peter McVerry Trust, said he would cautiously welcome. “Anything that could potentially bring about greater trust between young people and the gardaí would be welcomed,” he said. There is distrust between many people in their services and the Garda, he said.
If interactions are caught on camera, they might be more civil, with more respect and more appropriate language. “I imagine that additional transparency would probably bring about improved conduct, on both sides,” said Doherty.
Research carried out in places where body cameras have been introduced does seem to bear out that idea, but many experts say that it’s early days — and Ireland isn’t the United States or the United Kingdom. So, it’s unclear what impact they would have here.
A 2012 study led by Tony Farrar, chief of the Rialto Police Department in the United States, which was published in the Journal of Quantitative Criminology found that use of body cameras had other important effects beyond the obvious use for gathering evidence.
The fact that all sides knew they were being filmed — as officers had to clearly state it at the beginning of any encounter — meant that officers and those they came into contact with seemed to adjust their behaviour. The use of force by officers wearing cameras fell by 59 percent, and reports against officers dropped by 87 percent compared to the year before.
Another study in Mesa, Arizona, which followed 100 officers over 10 months to see how their interactions with the public changed, found that officers who wore cameras were less likely to perform stop-and-frisks and make arrests. They were also more likely to give citations and initiate encounters, the research found.
Some say that the although the technology is now available for us all to film each other, we’ve yet to properly debate how cameras should be used to capture during police work.
As McIntyrne of Digital Rights Ireland sees it, there are important privacy issues going in both directions. “I think you can risk overlooking that with a more simplistic analysis of who’s doing the filming,” he said.
For Garda body cameras, there are questions of cost, data storage, and privacy for both those being filmed and the Garda who are doing the filming. (The Office of the Data Protection Commissioner did not reply to queries about privacy, protocols and filming and whether it has been engaging with An Garda Síochána about this.)
Gardaí are entitled to be able to talk privately to their colleagues while they’re on duty, said McIntyrne. They “shouldn’t necessarily be monitored the whole time when they’re at their place of work, anymore than the rest of us should be monitored the whole time while we’re at our places of work”.
It might be a good idea to film the police to highlight how they’re performing a public function, he said. “But that shouldn’t extend to everything they do.”
There isn’t a public policy reason for somebody to film gardaí just walking down the street, but there might be at a protest or during an arrest where there might be more contentious actions or a use of force. “There would be a good public interest in reviewing that later on,” he said.
Mulligan says An Garda Siochana would probably look to what police do with cameras in the United Kingdom, and would have to debate how well that works.
“What they do in England, when they go to the particular call, there’s a facility on the camera, you just switch it on and off,” he said.
“Everyone is aware that this recording is going to take place. I don’t think it’s something that’s used in every instance. That’s another area that has to be looked at … When do you turn it on, and when do you turn it off?” he said.
“They’re obviously not going to drive around all day with this thing running, and every innocent member of the public is caught on video all of a sudden! I don’t think that would go down well,” Mulligan said.
If Ireland were going to give body cameras a shot, it might require some legislative changes, said Mulligan from the GRA. “From our point of view, we think it may even require a change in legislation to allow police officers to wear them.”
It’s not just about dealing with the data, he said. “There may be a problem with the surveillance act in relation to videoing people.” If it’s not a CCTV system, then you might need a warrant to carry out surveillance.
Some think that Dublin city would be a good place to try them out. “I imagine it would have to be somewhere in the city. There’s no point in trialling it in a small station in the country where you might get one or two calls a week,” said Mulligan.
There’s an expense in bringing them in, and in storing data but there are ways it could pay off, said Mulligan. It would help cases move through the courts, help the Garda Ombudsman rule. “The benefits, we think, would outweigh it,” he said.
Interactions between gardai and the public are “generally good-natured”, said Mulligan.
“You’ll find when they’re interacting with young lads and that, generally it’s a soft approach.”
But that’s not always the case. After Ó Faogáin was stopped on Portland Row, he felt small. “There seemed to be an attitude across the board of just, ‘We can just mess around with these people,’” he said. “I felt belittled a bit by it.”
If it were all on tape maybe, he says, there’s a chance that might change.