Seanad Éireann - Volume 196 - 30 June, 2009
Criminal Justice (Surveillance) Bill 2009: Second Stage.
Question proposed: “That the Bill be now read a Second Time.”
Deputy John Curran Deputy John Curran
Deputy John Curran: I am pleased to have the opportunity to open this Second Stage debate on the Criminal Justice (Surveillance) Bill 2009. This is an important Bill and one which will provide further support to the Garda Síochána, the Defence Forces and the Revenue Commissioners in their continuing drive against serious and organised crime.
The objectives of the Bill are clear-cut — to allow material gained by covert surveillance to be used as evidence in criminal proceedings, while at the same time ensuring that the intrusion into rights relating to personal privacy and privacy of property, which this necessitates, is both controlled and proportionate.
The Bill deals with these objectives essentially in two ways. It provides, for the first time, a statutory framework for secret surveillance by the bodies concerned, mainly the Garda Síochána in its role as the primary law enforcement and security agency of the State. The Defence Forces are included because of their parallel responsibilities in protecting the security of the State, mainly against the threats posed by subversives and international terrorism. The Revenue Commissioners have a vanguard role in protecting the financial interests of both the State and the European Union, and in guarding against the illegal importation of drugs and firearms. It is easy to see how the interests of these agencies may coincide, for instance, in the case of joint operations by the Garda and the Revenue in targeting money laundering and tax evasion, a key element in the fight against organised and subversive crime.
The Bill also lays out the rules which will apply in regard to the admissibility of evidence covertly obtained in court proceedings.
When the Bill was published on 17 April last, the Garda Commissioner said that surveillance is as old as policing itself. It takes many forms, the simplest of which is keeping track of a person’s movements on foot or in a car, or using binoculars, a camera or CCTV in public places. However, the Bill is not about this type of surveillance that is part of ordinary policing. There is also electronic surveillance — the interception of telecommunications provided for by the Interception of Postal Packets and Telecommunications (Messages) Act 1993. The Bill does not deal with that type of surveillance either.
What the Bill seeks to regulate is the use of covert electronic surveillance devices which are specifically designed to eavesdrop, film, monitor movements and make recordings in order to gather information for the purposes of preventing and investigating serious crime and in safeguarding the security of the State.
Constitutional and European Convention on Human Rights principles must be considered before any interference with privacy rights is contemplated as covert surveillance is fundamentally an invasive and intrusive process. It is accepted, however, that there are some circumstances in which the State in the common interest may exercise special powers denied to ordinary citizens. The right to privacy is a case in point, and it may be interfered within certain circumstances once appropriate safeguards are provided for. The Bill contains several procedural safeguards aimed at achieving an appropriate balance between the competing privacy rights of the individual citizen and the interests of the wider society.
In its 1998 report entitled Privacy: Surveillance and the Interception of Communications, the Law Reform Commission provided a detailed analysis of the issue.
Both Bunreacht na hÉireann and the European Convention on Human Rights guarantee an accused person’s right to a fair trial. Central to this are evidential issues such as admissibility and disclosure of evidence, and the Bill has specific provisions on the admissibility of surveillance evidence as well as rules regarding disclosure. These matters are dealt with in the Bill because, as I said at the outset, the legislation is designed to facilitate the use of information and material obtained by covert surveillance to be used in evidence. Cognisance of the pertinent human rights and constitutional principles has underpinned the drafting of the Bill.
I believe we have provided for the correct balance in the Bill as between the competing interests of privacy and due process on the one hand and the protection of persons, the prevention of crime and the security elements on the other. I am pleased to note the Bill has received a general welcome, not just from all sides in the Houses but from the various non-governmental organisations which have a particular interest in this area. Observations made by the Irish Human Rights Commission have been considered and, where appropriate, have been incorporated into the Bill in the course of its passage through the Dáil. The Bill before this House contains additional safeguards for the subjects of surveillance.
Until now, the Garda has been reluctant to use evidence obtained by covert surveillance in court, mainly for legal and operational reasons. That policy has now changed. In the opinion of the Garda Commissioner, the changing nature of crime, in particular the growth of organised and gangland crime, requires a buttressing of the security response. In addition, the threats to society and to the integrity and effectiveness of the criminal justice system itself posed by these gangs, notably the attacks on ordinary people going about their daily lives, requires correspondingly robust legal measures.
The use of hi-tech surveillance devices can provide real time intelligence on the plans and actions of criminals, subversives, terrorists and other sources, which allows the relevant agencies to disrupt their plans and thwart their actions. It can identify the perpetrators and facilitate their arrest. It can reveal the existence of new sources from which a better understanding of the threat posed by criminals and others can be gauged and from which preventive strategies can be developed. It is a technique employed in law enforcement and security in many jurisdictions.
Regarding the investigation of crime, the use of covert surveillance after a crime has been committed can result in the arrest of the perpetrators. It can also assist with the recovery of the proceeds of crime and with the disentanglement of related money laundering operations. Crucially, surveillance can prevent loss of life.
I will set out more fully the provisions of the Bill. Section 1 deals with definitions, a number of which are worthwhile expanding on. In defining a member of the Defence Forces and a member of the Garda Síochána for the purposes of surveillance under the Bill, it is important to note that any powers of surveillance granted to the Garda or the Defence Forces are not granted to reserve members.
Revenue offences are defined for the purpose of the Bill as arrestable offences under specific legislation which primarily deals with tax fraud and smuggling. Surveillance powers of the Revenue Commissioners under the Bill are restricted to these offences.
The Bill defines surveillance as monitoring, observing, listening to or making recordings of persons, places or things by or with the assistance of surveillance devices. As such, it does not include situations where persons are followed or observed without the use of surveillance devices. Surveillance devices are defined in the Bill as apparatus designed or adapted for use in surveillance. Certain devices are specifically excluded such as devices designed to improve night vision where the image is not being recorded; and CCTV and cameras used to photograph persons in places to which the public has access.
Sections 2 and 3 provide that the Bill applies to surveillance carried out by the Garda Síochána, the Defence Forces and the Revenue Commissioners and that any such surveillance may only be carried out in accordance with the Act. For clarity, the Bill sets out certain activities that are excluded from the provisions of the application of the Act such as any activity that would constitute an interception within the meaning of the interception Act of 1993, tape recording of interviews with suspects in accordance with the provisions of the Criminal Justice Act 1984 or the use of CCTV in Garda stations.
Section 4 deals with applications for authorisations to conduct surveillance. It provides criteria which must be satisfied before an application can be made.
In the case of the Garda Síochána, surveillance can be sought as part of an operation concerning an arrestable offence, to prevent an arrestable offence and in regard to the security of the State.
The Defence Forces may apply for an authorisation in regard to matters concerning the security of the State. The Revenue Commissioners may apply in regard to revenue offences. In all cases there must be reasonable grounds for believing that the surveillance is necessary for the purposes intended and that the surveillance being sought is proportionate to the objectives and is reasonable.
Section 5 deals with the issuing of authorisations for surveillance by a District Court judge, applications for which shall be made ex parte and shall be heard in private. The application can be made to a judge assigned to any District Court district and the authorisation will have effect in any part of the State. Before a judge issues an authorisation, he or she must be satisfied that it is justified to do so having regard to all of the relevant circumstances. An authorisation may be issued for a maximum of up to three months. The judge, when issuing an authorisation, may authorise the person named in it or other members or other persons considered necessary to enter property, if necessary by reasonable force, to initiate or carry out such surveillance.
Section 6 provides for the variation of the conditions attached to an authorisation and for the renewal of an authorisation for a further period of up to three months.
Section 7 provides for the approval of surveillance in situations where the matter is urgent and where there are reasonable grounds to believe that before an authorisation could be issued, it is likely that a person would abscond to avoid justice, that evidence would be destroyed, or that the security of the State would be compromised. In such a case, a superior officer may give approval for surveillance for a limited operational period of up to 72 hours. If continued surveillance is required, an authorisation must be obtained from a judge of the District Court. The section also requires the keeping of written records and the making of reports by the parties involved.
Section 8 provides for the approval of the use of tracking devices for a maximum period of four months. Judicial authorisations are not required but the approval of a superior officer is necessary. This approval is based on strict qualifying criteria in line with the criteria for the approval of surveillance. Tracking devices are used to monitor the movements of persons, vehicles or things and to provide information on their location. Again, the Bill requires that written records and reports must be maintained.
Section 9 provides for the retention, for a specified period, of all official documents relating to authorisations and approvals. The period in question is either three years from the end of the surveillance or the day after the information is no longer required for any prosecution or appeal for which they are relevant. The section further provides that the material will be destroyed, as soon as is practicable, once it is no longer required except in cases where the relevant Minister gives written authorisation for the retention of information and documents, having regard to certain matters.
Section 10 deals with the secure storage of and authorised access to information and documents generated as a result of the carrying out of surveillance with the intention of protecting people’s privacy and other rights. The section also allows the Minister for Justice, Equality and Law Reform to make regulations in respect of the disclosure or non-disclosure to the subject of surveillance or to persons who are materially affected by it. Disclosure will, however, only occur in certain specified circumstances.
Section 11 provides for a complaints procedure where a person believes he or she may be the subject of surveillance or where a superior officer involved in the authorisation or approval process applies to the complaints referee. Where the referee finds that there has been a contravention of sections 4 to 8, he or she has the power to direct the quashing of an authorisation, the destruction of any information obtained and to recommend payment of compensation up to €5,000. However, if the referee believes it is not in the public interest to do so, he or she may decline to make such directions or recommendations. The referee may also undertake an investigation of a case on his own initiative and must investigate a case referred to him or her by the designated judge who has oversight of the operation of the legislation. The matter may also be referred by the referee to the Garda Síochána Ombudsman Commission, the Minister for Defence or the Minister for Finance, depending on the particular State agency concerned. The complaints referee may also refer a matter to the designated High Court judge who has oversight of the Act.
Section 12 provides for the appointment of a judge of the High Court to oversee the operation of the main provisions of the Bill and to make regular reports to the Taoiseach on any matter. Such reports will be laid before both Houses of the Oireachtas. The designated judge may also refer a matter to the complaints referee for investigation.
Section 13 is a confidentiality provision. It prohibits the disclosure of any information about the operation of the Bill unless it is made to an authorised person, as defined, and is in connection with specified criteria such as the investigation and prosecution of offences or in the interests of the security of the State. The section applies both to members or officers of the agencies concerned, including members of respective reserve forces, and to persons engaged in contract work. It also applies to persons generally. Breach of this provision is an offence which may be prosecuted summarily or on indictment.
Section 14 is a core provision of the Bill. It deals with the issue of admissibility of evidence in the narrow and very specific context of evidence obtained by means of surveillance. It provides that such evidence, notwithstanding any error or omission on the face of an authorisation or a written record of approval or notwithstanding any failure by any member or officer to comply with a requirement of an authorisation or written record, may be admitted in evidence in certain clearly defined circumstances where the error or omission was inadvertent or where the member or officer acted in good faith and the failure was inadvertent and the interests of justice would be served by the admission of such evidence. The court, when deciding on the admissibility of such evidence, will have regard in particular to matters set out in the section, whether the error or omission or failure was serious or merely technical in nature, the nature of any right infringed, any circumstances of urgency and the possible prejudicial effects of the information and the probative or conclusive value of same. In effect, this means that a breach of statute-based procedures or a failure to fulfil particular statutory requirements will not, of themselves, mean that the material in question must be excluded.
Section 15 deals with the disclosure of information about surveillance in court proceedings. It provides that disclosure by means of discovery or otherwise will not be made unless a court authorises otherwise. A court will not authorise such a disclosure unless it is satisfied that to so would not create a risk to the security of the State, to the ability of the State to protect persons, including witnesses, or to the integrity and effectiveness of security and crime-fighting operations.
Section 16 provides that the Ministers for Justice, Equality and Law Reform, Defence and Finance may make regulations under the Act. Any such regulations must be laid before each House of the Oireachtas.
Section 17 amends the Garda Síochána Act 2005 to provide for the non-application of the provisions of the Act to the Garda Síochána Ombudsman Commission. This is in line with the existing non-application of provisions of the Offences against the State Acts 1939 to 1998 and the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993.
Section 18 provides for a technical amendment of Section 32A of the Courts (Supplemental Provisions) Act 1961 to extend the provisions of that section to include this Bill. Section 19 is a standard provision and provides for the Short Title of the Bill.
I consider this Bill to be a significant milestone in the process of bringing those involved in serious criminal, subversive or terrorist activity to justice. It is evidence of the Government’s ongoing commitment to the fight against crime and to the safety of its citizens. It builds on measures already introduced by the Criminal Justice Acts of 2006 and 2007 in dealing with the prosecution of gangland crime.
The Bill provides for an appropriate and, more importantly, a proportionate balance between the competing demands of protecting the privacy rights of persons and of ensuring the society in which we live is safe from the threats of violent crime and terrorism. The Bill respects our obligations under the Constitution and European Convention on Human Rights while ensuring effective mechanisms are put in place to support the gardaí and other agencies in carrying out their work.
The opportunity to introduce additional safeguards was taken during the passage of the Bill through Dáil Éireann. A number of these provisions reflect proposals put forward by the Irish Human Rights Commission in its observations on the Bill.
Technological developments in this area continue to evolve so quickly that the potential intrusiveness into our personal lives requires that the type of surveillance dealt with by this Bill may only be resorted to in a proportionate way, accompanied by proper and effective legal safeguards. I believe the Members of this House will agree that the Bill before them meets these requirements. I commend the Bill to the House.
Senator Eugene Regan Senator Eugene Regan
Senator Eugene Regan: The purpose of the Bill is to allow material gained by covert surveillance to be used in evidence in court. Gardaí have conducted covert surveillance for many years but this Bill provides for the information so gathered to be presented as evidence in court. It is aimed at organised crime but it is also relevant to white collar crime.
The Bill provides for the carrying out of surveillance on foot of an authorisation of the District Court for a period of up to three months and which can be renewed in urgent situations by authorisation from a senior officer for a period no longer than 72 hours. It provides for the creation of written records, the admissibility as evidence of information obtained and a mechanism for dealing with complaints and separate judicial oversight of the operations of the Bill by a High Court judge, which I will refer to later.
The Bill encompasses three main enforcement agencies: the Garda Síochána, the Defence Forces and the Revenue Commissioners. Considering the range and interlinking of the activities of criminals, including drug smuggling, customs and excise fraud, VAT fraud and money laundering, it is appropriate that all those bodies are included within the ambit of the legislation.
Fine Gael welcomes the publication of the Bill and urges its immediate implementation. We have called for it for some time on the basis that we will support any measure which makes inroads into tackling gangland crime. Given the conviction rate of 12% of 171 shootings which have taken place in the past 11 years, our evidence gathering measures clearly need to be improved in tackling this form of serious crime.
Covert surveillance legislation is essential but there is no guarantee it will have a major impact unless the necessary resources are put in place and an investment made in training, the provision of the best equipment and ensuring all procedures and structures are in place to implement it effectively. It will also be necessary to resource the national surveillance unit which will run the new bugging and tapping operations. The Garda Commissioner says a new unit does not need to be created, but additional resources will be required to handle the increased workload, comply with written records procedures and so forth.
There are two other fundamental issues that complement this operation. When there are cutbacks in budgets they tend to be across the board. This can be very damaging in the case of some fundamental services provided by the State. One of those is the Office of the Director of Public Prosecutions. The Director of Public Prosecutions has indicated he will be unable to carry out his duties with the budget cuts this year. That cuts across the entire policy of the Oireachtas on tackling and combating the most serious forms of crime. One of the other essential elements in the armoury the State requires to deal with this problem is the establishment of a DNA database. This is long overdue. All EU member states are required to maintain a DNA database and to participate in sharing information. The Minister for Justice, Equality and Law Reform promised legislation to deal with a DNA database last year but it has not been produced.
These are the essential prerequisites for the Garda and the Director of Public Prosecutions to ensure both the detection and prosecution of crime. This Bill can play a part but we should not exaggerate what it can achieve without the resources I mentioned. The most notable case where this type of technology and surveillance have succeeded was the case of the mafia boss, John Gotti. Such cases are rather dramatic and one hopes the resources will be in place, the necessary training will be provided and the sophistication of the gardaí involved in these operations will succeed in having similar success in the case of the some of the most notable gangland criminals in this country.
I do not wish to be negative as we welcome this Bill but the Law Reform Commission produced a report, Privacy: Surveillance and the Interception of Communications, in 1998 which dealt with the introduction of legislation such as this. It is extraordinary that it has taken so many years for the Government to act. The problems did not arise yesterday; there has been a serious escalation in gangland crime for some years, yet in 2007 the Government informed the Houses that no such legislation was in place. The Minister said:
Up until now, the Garda has been reluctant to use evidence obtained by covert surveillance in court, mainly for legal and operational reasons. That policy has now changed. In the opinion of the Garda Commissioner, the changing nature of crime, in particular, the growth of organised and gangland crime, requires a buttressing of the security response. In addition, the threats to society and to the integrity and effectiveness of the criminal justice system itself posed by these gangs, notably the attacks on ordinary people going about their daily lives, requires correspondingly robust legal measures.
It is extraordinary that the Garda Commissioner dictates when we pass legislation. It is up to the Minister for Justice, Equality and Law Reform to take the initiative in these areas and it is a matter for the Oireachtas to make these decisions. This undue deference to the Garda Commissioner in terms of dictating the pace at which we introduce legislation is inappropriate.
The right to privacy is a fundamental right under our Constitution and the European Convention on Human Rights, to which we subscribe. It is legitimate to interfere with that right for the general good if the interference is necessary, proportionate and carried out in accordance with law. Given the extent of criminal activity and gangland crime, and the fear and intimidation which local communities endure, the interference envisaged in the Bill is clearly legitimate. The setting down in law of the conditions under which this interference with the right to privacy by way of surveillance takes place means it takes place in accordance with law. This is why the Irish Council for Civil Liberties has welcomed the Bill. The council says it will place Garda surveillance on a lawful basis that broadly conforms to Article 8 of the European Convention on Human Rights. The council is also correct in its statement that intelligence-led policing, and not the restriction of fair trial rights, is the most effective way to tackle gangland crime. Intelligence gathering and the securing of evidence are essential ingredients in the detection and effective prosecution of crime.
With regard to the specific provisions in the Bill, which we will discuss in detail on Committee Stage, we should expressly include gangland crime among the objectives set out in the Bill. There is an issue with legal professional privilege and how we define the interference with the right to private property. However, two particular issues should be noted with regard to judicial supervision. We have the referee system but, in section 12, there is provision for the engagement of a sitting High Court judge to oversee the operation of this legislation. This provision is in the precursor to this Bill, the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993. I have some concern about the provision in the Bill. The provision is welcomed by many bodies who see it as providing oversight and a necessary safeguard. It provides that a designated judge shall keep under review the operation of the legislation and report to the Taoiseach from time to time, and at least once every 12 months, concerning any matters relating to the operation of the sections that the designated judge considers should be reported.
I appreciate that this provision is in the 1993 Act but has the Attorney General’s view been obtained on it? It seems to involve the Judiciary unduly in the executive legislative function. Requiring a sitting High Court judge to report to the Taoiseach on the operation and implementation of specific legislation appears to cut across the basic principles of the separation of powers. I await the Minister’s response on this issue. In addition, where is a sitting judge to get the time and resources required? Will he or she have staff to carry out investigations of any maladministration or flaws in the legislation? I question the constitutionality of the provision, even if it is already in other legislation.
The other issue I wish to raise is the role of the Garda Síochána Ombudsman Commission. On the point I mentioned about supervision, the Garda Síochána Ombudsman Commission would be the appropriate body to carry out that review. The commission is not given a role in the legislation, nor is it available to the commission to use the provisions of the legislation to carry out its own investigations of issues concerning the Garda Síochána. That is a flaw in the Bill.
I welcome the fact that there is a remarkable similarity between this Bill and some of the provisions in the Bill I introduced in this House, the Criminal Law (Admissibility of Evidence) Bill 2008. Therefore, I cannot but support it.
Senator Denis O’Donovan Senator Denis O’Donovan
Senator Denis O’Donovan: I support this Bill and welcome the Minister of State, Deputy John Curran, to the House. I compliment him on his endeavours in respect of the national drugs strategy and other such issues in community affairs. It is very appropriate that this Minister of State is present because, regrettably, one of the major problems we face in society at present, not only in Dublin, Limerick or Cork but in most of our major towns, is drugs and drug related gangland crime. Unfortunately, this is a very serious and growing issue. I was deeply concerned today to read in some newspapers of a study carried out in Limerick that showed that young children of five to seven years of age are being used by these drug gangs. They are manipulated at a tender age to carry out intimidation and, in some instances, arson attacks on neighbours or anybody who may stand in the way of the illegal, furtive and dangerous activities of these drug lords.
This Bill is not before time. Its advent was heralded by the Law Reform Commission some years ago. I have no doubt it is another addendum to the armour of the Garda, the Defence Forces and the Revenue in tackling organised crime. The Criminal Justice (Surveillance) Bill has two important functions in this regard. As the Minister of State pointed out, the first and most basic is that it gives a legal framework to the carrying out of covert electronic surveillance and the eavesdropping, filming, monitoring of movements, the making of recordings and gathering of information for the purpose of investigating and preventing serious crime. It is important we realise this Bill deals with serious crime. We are not talking about run-of-the-mill minor misdemeanours but crimes that carry a very hefty custodial sentence for those apprehended.
The second, and equally important, issue is the question of admissibility in our courts of evidence collected. To a degree, the Bill upturns the exclusionary use of evidence which hitherto prevented such collected evidence, data and information being used in court. Evidence is collected primarily, but not exclusively, by gardaí or the Revenue Commissioners, although it is possible the Criminal Assets Bureau or the Defence Forces may be included. The Minister of State might clarify this. I have no doubt there are probably a large number of cases where the Garda and the other authorities are 99% sure of who has committed serious crimes but hitherto, because of our legal system, criminals got away on technical issues.
It is also important to note when surveillance can be used. For the first time, the Bill provides for a regulatory framework for the use of surveillance in the investigation and prevention of arrestable offences. The offences in question carry penalties of five years’ imprisonment or more on conviction. The Revenue offences in question are also arrestable offences in that they carry similar sentences. My colleague, Senator Regan, made a very important point, namely, that in addition to the normal subversive organisational type of crime or drug related crimes, the legislation applies to white collar crime such as major tax scams or the smuggling of diesel, cigarettes or other such material.
It is noted that persons have rights under the Constitution and under the European Convention of Human Rights in respect of the inviolability of the dwelling, and breaches of privacy, etc. In this regard, as Chairman of the Joint Committee on the Constitution during the previous Dáil, I had close dealings with Article 40.3.1º and Articles 6 and 8 of the European Convention on Human Rights. The admissibility of material obtained through surveillance as evidence, therefore, is contingent on it being deemed compliant with both the Constitution and the ECHR. It is a belt and braces set-up.
The Irish Council for Civil Liberties often forewarns legislators and Members of this House of doubts and pitfalls when bringing forward legislation. I put on record and welcome, as did my colleague Senator Regan, that the ICCL, by and large, has welcomed and supported this concept.
There is no doubt that intelligence-led operations, especially by the Garda, are the way to solve crimes. Regrettably, we are dealing now with very intelligent, ruthless and sophisticated gangs on our streets who are supported by and have links with gangs not just in Europe and the United States but throughout the world. They have the most sophisticated methods. It is worth noting also that even though we are making strides to prevent it happening, in many instances serious crime is being directed from prisons and prison cells. We think that when a person gets a sentence of 15 or 20 years behind bars he or she is locked up, secure and safe. Regrettably, we still have not stamped out communication and direction of criminal activities, threats and the issuing of fear in one form or another from prison cells.
I was delighted some months ago to visit the Midlands Prison. It was an education to see the mechanisms, trickery and chicanery used by criminal gangs working inside and outside, getting mobile telephones into prisons and all sorts of devices being hidden in shoes and other such methods. I was very impressed by the search methods and stringent security checks like those at airports that ensure people do not bring in illicit drugs or any kinds of weapons. Even simple items can be adapted for weapons or for mobile telephone use in prisons. That has serious implications.
It is important also to note that in the operation of the surveillance framework, the Bill provides for a system requiring authorisations and approvals to be given for the use of surveillance devices in security operations aimed at investigating and preventing arrestable offences. Such authorisation will be issued only on application to a District Court judge who must be satisfied on the evidence presented to the court by a superior officer of the Garda, Defence Forces or Revenue Commissioners that the surveillance is both necessary and is the least intrusive method available. In general, such authorisation will be required for surveillance to take place but there are two exceptions where approval from a superior officer will allow the surveillance to be initiated. For the purpose of this Bill, a superior officer is at least the rank of a superintendent in the case of the Garda, a colonel in the case of the Defence Forces and a principal officer in the case of the Revenue Commissioners.
I note the two exceptions. The first exception is in exceptionally urgent situations where there is no time to get a court authorisation and there is a risk of a person evading justice, committing an offence or where information or evidence regarding a crime may be destroyed. In such cases, the superior officer must be satisfied that the surveillance is necessary and the least intrusive method available. There is a strict time limit of 72 hours for the use of approved surveillance. If the surveillance is to continue, an authorisation must be sought from a judge within the 72 hour period.
The duration of the surveillance is important. It must be noted that authorisations are valid for up to three months but can be renewed on application to the court. Emergency approvals are only valid for 72 hours and cannot be renewed, as a new authorisation must be sought. Tracking device approvals are valid for up to four months.
The issue of confidentiality is also important. Strict rules govern the storage and disclosure of material connected with surveillance in order to protect the integrity of the surveillance system and the security of all parties involved. It will be a criminal offence to disclose any such information. I imagine the section on confidentiality refers to possible leaks, particularly to newspapers. Often we wonder how our excellent crime correspondents have information as soon as, if not quicker than, the Garda.
This is excellent legislation that, among other legislation in the past 12 years in particular, creates a significant plate in the armoury of the Garda and the Defence Forces in the fight against crime. In this regard, I wish the Bill a speedy passage through the House.
Senator Ivana Bacik Senator Ivana Bacik
Senator Ivana Bacik: With the permission of the House, I would like to share time with Senator Quinn equally.
An Leas-Chathaoirleach An Leas-Chathaoirleach
An Leas-Chathaoirleach: Is that agreed? Agreed.
Senator Ivana Bacik Senator Ivana Bacik
Senator Ivana Bacik: I welcome the Minister of State and the opportunity to debate this important Bill, which was prompted by a change in the climate in which we view criminal justice legislation, a change that was largely a result of horrific, so-called gangland killings. Somehow, that phrase sensationalises them and is not the best that could be used, but we are all reminded of the horrific killings of Shane Geoghegan, Roy Collins and others. For this reason, the Bill has received a broad welcome, in which I share. The Bill also marks a change in the Garda’s attitude. As the Minister of State mentioned, the Garda previously did not necessarily want the power to use the product of bugged conversations in court, as it would have exposed their investigatory techniques. This has been alluded to by other speakers.
It is important that, for the first time, covert surveillance will be placed within a statutory framework. I welcome section 3 in particular, since it provides that surveillance would only be carried out by gardaí, members of the Defence Forces or Revenue officers in accordance with valid authorisations or approvals. This is an important and necessary safeguard against the arbitrary use or abuse of such surveillance techniques. It is important to note the Bill does not apply just to the Garda, as it also applies to the Defence Forces and Revenue, a point to which I will revert.
The other core provision, as has been stated, is section 14, which provides for the admissibility of evidence obtained through surveillance carried out in accordance with an authorisation or approval. I should declare an interest in that I am a criminal lawyer. Speaking as such, section 14 is interesting, as it represents the first statutory attempt in a Government Bill to place in a legislative form the principles that have been developed through extensive case law on the admissibility of evidence on foot of search warrants where the warrants are in some way defective. Recently, I carried out some work on case law in this respect. I would be interested to know how the courts will interpret section 14. Inevitably, there will be some conflict with some of the case law, given the Kenny and O’Brien cases. More certainty is necessary, but the section is welcome.
My concerns about the Bill derive primarily from the case law that has evolved around search warrants. The right to privacy has been mentioned by others, including the Irish Council for Civil Liberties, ICCL. We must bear this important right in mind when considering the granting of powers to conduct surveillance. Another constitutional right will be as important or even more so in the case law that will evolve from the Bill, namely, the inviolability of the dwelling under Article 40.5. The provisions that carry the most potential for abuse of citizens’ rights are those that provide for the right of members of the Garda, Defence Forces and Revenue to enter anywhere to plant and remove bugs. I am considering subsection 5(7) in particular, which allows entry by force, if necessary, to any place, including a dwelling, for the purposes of carrying out surveillance and withdrawing a device without a person’s consent. There is extensive case law on when a judge — it is usually a judge — can issue a search warrant to a garda to enter a dwelling or other place. Generally, the case law provides that there must be safeguards in place to ensure that search warrants would only be granted when due process has been observed.
Legislative provisions allow senior gardaí to issue warrants. Interestingly, a provision in the Criminal Justice Act 2006 that would have extended a general power to issue search warrants to Garda superintendents was withdrawn by the Minister on Report Stage. The Act, when initiated, had allowed for a Garda superintendent to issue a search warrant in respect of any arrestable offence in circumstances of urgency. This would have been innovative because the current provisions allowing the power for senior gardaí to issue search warrants arise from specific types of offences, such as drug trafficking or offences against the State under the Offences Against the State Acts. Senior gardaí do not have a general power to issue search warrants, even in circumstances of urgency, for arrestable offences.
I am slightly concerned by the Bill. Sections 4 and 5 provide an important procedure whereby a District Court judge can issue authorisations for surveillance for up to three months. The procedures and criteria set out for the judge are proper. Of more concern are sections 7 and 8, which allow for the approval of surveillance by superior officers in the Garda, Defence Forces or Revenue in respect of any arrestable offence. Although the Bill has been prompted by concerns about gang crime, it applies to all arrestable offences. Sections 7 and 8 provide for surveillance devices to be granted, withdrawn and so on and for homes to be entered without authorisation, by District Court judges but on approval of superior officers. I understand and appreciate that, in circumstances of urgency, it may be necessary to make such a provision. Section 7 is specifically titled, “Approval for surveillance in cases of urgency”. Subsection 7(2) provides criteria regarding the conditions that must apply before a superior officer, a superintendent or above in respect of the Garda, can give approval. We should focus attention in this area to ensure abuses do not occur. I will table amendments in this regard, as approvals can apply for up to 72 hours, which might be too long. Getting a District Court judge to issue an authorisation should be possible within 24 hours. I am concerned about non-judicial approval. We should also consider the matter of principal officers in Revenue being able to approve the use of such devices.
Of even more concern is section 8 on tracking devices rather than surveillance devices. It does not allow for the taking of content of conversations. Rather, it allows for entry into a home to place or remove a tracking device on the approval of a superior officer without any requirement that there be a condition of urgency. This seems like an omission and I will table an amendment to suggest the same conditions that apply in section 7 should apply in section 8 before a superior officer could approve such surveillance.
I do not mean to take away from my overall welcome of the Bill, but I wish to ensure it is water tight, which is an important issue for everyone concerned with the prevention of crime and any more horrific killings. We must ensure that safeguards are in place. Previously, people’s homes were bugged illegally in the interests of so-called State security. We all want to guard against a recurrence. With these concerns in mind, I make my comments and give a cautious, broad welcome to the Bill. I urge caution in respect of some of its provisions, particularly sections 7 and 8. Will the Minister of State consider them? We will have a chance to debate them on Thursday.
Senator Feargal Quinn Senator Feargal Quinn
Senator Feargal Quinn: I thank Senator Bacik for sharing time.
I look upon this Bill with some experience because during the years I was in the supermarket business there were occasions on which the Garda was able to acknowledge there were threats to the effect that poison would be placed in the supermarkets for blackmail purposes. I do not know how the Garda obtains this kind of information or how it solves cases. It clearly had some sort of information but it would not have been able to use it in court given that doing so is only being made legal now.
Three of my colleagues in the supermarket business have been kidnapped. In the case of Don Tidey and Ben Dunne, there was perhaps subversive activity rather than criminal activity but on another occasion, many years ago, there was criminal activity. My family was very concerned. I am not sure how the Garda handled the case at the time but it was certainly able to do so with ability and knowledge. I do not know the technology it used but the suspects were certainly using technology that was not available elsewhere and which could certainly not have been used in a court of law had it been used for surveillance by the Garda.
I was stunned at the conviction rate referred to by Senator Regan, namely, 12% of 171 cases involving shootings in the past 11 years. This shows we need modern technology and legislation such as that under discussion.
I was going through a very modern airport in a modern city in Europe last year and noted the equipment being offered for sale in the duty-free shop was exactly the sort that would enable white-collar crime to take place. I had not seen the technology before and I am sure it is not legal to sell it here. However, it is capable of being sold in a duty-free shop in an airport.
A person from another country told me he had some concerns about information from his own company being disclosed. When the company swept its boardroom – I believe this is the phrase used – it found technology being used to disclose information. The individual was not able to tell me exactly what it was used for but it is clear that information very valuable to the company was being stolen by somebody and obtained by somebody else. This is the sort of white-collar crime I am sure we are talking about and about which preventive action should be taken.
I met the former Mayor of the City of New York, Mr. Rudy Giuliani, some years ago. I had read his book in which he spoke about the use of DNA in securing convictions in New York.  I asked whether there were concerns over civil liberties and he said there had been some. However, he referred to a case in which a person ready to be charged was proven not to be the culprit through the analysis of DNA. The suspect would have had considerable difficulty only that the analysis of DNA relieved him of the possible charge that would have been applied to him.
There is an obvious concern that surveillance powers can be abused by a state, not only in undemocratic countries but also in democratic ones. Senator Bacik and others referred to this. However, with this particular Bill, it must be kept in mind that the new powers afforded to the Garda will allow it to fight like with like, just as criminals have been monitoring gardaí for a long time and using monitoring as a weapon against the Garda through intimidation and other means.
I have a concern raised with me by a former detective superintendent in the Garda Síochána and former national head of Interpol and Europol, the international and European police information exchanges, respectively. He stated:
In my view this Bill fails two tests, those of common sense and what I will call “investigatory necessity”, and by a considerable margin, for the following reasons.
1. It adopts a generalist approach by seeking to apply this law to the entire population and not directly to criminal organisations as defined in the Criminal Justice Act 2006.
2. The threats emanate from specific and defined sources, criminal gangs and subversive organisations. The threats do not emanate from the population as a whole and arguably the population as a whole should not be subjected to these measures.
3. The definition of surveillance data is far too wide.
4. It can be construed to include all surveillance activity, including intelligence and evidential material.
5. The material received from foreign agencies could be disclosable and electronic devices fitted by them to assist Irish authorities could be rendered inadmissible.
6. There may be a loss of confidence at international level in the Irish systems which may inhibit the flow of intelligence and subsequently of evidence.
7. The rules on disclosure are unclear.
8. It is not clear if telephones and electronic mail are covered. [I believed they were.] Some of the measures may have the effect of neutralising current surveillance practices, particularly in relation to telephone intercepts and electronic mail.
9. Placing authorisations at the District Court level is unnecessarily indulgent and it exposes a greater number to possible threats from the criminal elements. [I would like the Minister to comment on this.]
10. The authorisation process is rigid at the operational level and lacks operational reality.
11. The rules on privilege are also unclear.
12. Surveillance officers may be compromised in terms of personal safety and their identities may become known to the criminal gangs.
This legislation is necessary and has reasonable balance. I have some concerns based on the detective superintendent’s experience of Interpol and Europol and I would like to ensure they are taken into account.
Senator Dan Boyle Senator Dan Boyle
Senator Dan Boyle: The essence of the march involving 5,000 people after the death of Mr. Roy Collins in Limerick was to express solidarity with the Collins family, particularly Roy’s close family. In impassioned speeches given by Roy’s father, Steve, and the then Mayor of Limerick, Mr. John Gilligan, it was clear many people were present to discover how circumstances could and should change through legislation. Specific reference was made to this Bill, which was being worked upon at the time. The House will be doing a good job in placing it on the Statute Book and giving a clear signal that things must be done differently.
In a democratic society, where the freedom of the individual is paramount, it is difficult to maintain the balance between the right to privacy and the need to carry out surveillance during the investigation of crime. However, we live in times in which certain individuals compromise the rights of society in general and communities in particular. This makes us consider changes of the law in this regard. However, as other Senators noted, a particular balance has been struck and it was informed by the drafting of the legislation and previous legislation during Private Members’ time, as Senator Regan mentioned. Senator Bacik referred to the inadmissibility of evidence. If there is criticism of the Bill, it concerns how it can be refined. Senator Regan mentioned the inadvertent use of the Garda Commissioner in determining future applications of the legislation and Senator Quinn referred to a number of areas in respect of which we need to be careful.
We live in an age of ever-quickening technological advances. While intercepts can be secured from telephone calls on landlines and mobile telephone calls, the way we communicate with one another is becoming increasingly complicated. The Skype telephone system, whereby people can talk to each other over computers, exemplifies an obvious difficulty with the type of surveillance in question. It is clear that, even with the passage of laws of this nature, there will be technological advances that will require us to revisit the legislation very quickly to ensure we keep up with technology.
My fears do not concern the admissibility of evidence necessary to convict those who are undermining society. My fears, which I hope can be dealt with through the appropriate choice of powers from this Bill and the writing of orders by the Minister to allow the legislation to come into effect, concern the use of information subsequent to a conviction and not its use as evidence in trials. We have seen how information leaked during investigations might have a prurient value for the media or individuals who gain access to it. I seek safeguards in this regard. It is not so much that an individual who engaged in criminal activity or had criminal intent would be compromised on foot of statements made in the compilation of evidence but that innocent citizens might be compromised inadvertently by this information. That is the thin line we tread on these occasions. I support the Bill, however, and am pleased that the House seems to be speaking with one voice about its necessity and the importance of putting it on the Statute Book. While it probably does not cover all the angles, no Bill can do so. It is intended to keep a close eye on how this area of law develops and how we as legislators can make sure that it can be kept up to date so that public confidence can be gained and maintained in this important area.
Senator Dominic Hannigan Senator Dominic Hannigan
Senator Dominic Hannigan: I welcome this Bill and I welcome the Minister of State to the House. I commend the significant work that the Department of Justice, Equality and Law Reform has done on the Bill. I read the Bill and reviewed the debates on, and amendments to, it and it seems clear that its provisions are necessary and fit for purpose in the current climate. I commend my party colleague, Deputy Pat Rabbitte, on the work he has done on this issue in the past two years. I recognise the tremendous contribution of Senator Eugene Regan who tabled a Bill in Private Members’ time last year which contributed positively to the debate and kept the issue on the agenda. At the time I had some trepidation about the Bill but it kept the issue alive and as a result this legislation is introduced.
I am confident that the procedural checks and balances in the Bill succeed in the difficult task of bestowing wide-ranging but proportional legislative powers in the face of an unprecedented threat to society from organised crime. I see no reason to criticise its spirit and central purpose. It is unconscionable that the Collins family in Limerick suffer further intimidation following the horrific death of their son, Roy. In the middle of May 5,000 people marched silently in solidarity with them in that city. A report in the Limerick Independent quoted a female marcher as saying “We’re not going to take it anymore; people are angry, people are afraid, people are intimidated and we shouldn’t have to live like that anymore.” None of us needs wonder at the likely outcome had that woman spoke on the record.
The sentiment of that march captures the necessity of this Bill. There is an urgent need to send the message that challenges from organised criminals will be viewed as an attack on the State. In recent years there has been a collapse in people’s trust in the institutions of civic and political life. Many of the cogs in the machinery of society, such as the church, politicians and the banks, have suffered a haemorrhage of public confidence as scandal after scandal breeds cynicism and detachment. This Bill provides us with an opportunity to fulfil at least partially our first and most important commitment to people, to protect their basic human right to live without fear of intimidation, harm and terror.
The need for the Bill is obvious. Deputy Charlie Flanagan pointed out that of the 171 prosecutions for shooting in the past decade only 12% resulted in a conviction. The tools that the Garda and associated agencies, such as the Revenue Commissioners, have at their disposal are inadequate. Not only are criminal gangs evading the law, they manage to go about their business while ignoring a hamstrung and weak set of criminal justice procedures.
While I welcome the Bill and look forward to its speedy enactment, I wish to raise several issues. I apologise in advance if these concerns have been adequately dealt with on Committee Stage in the Dáil. I echo the concerns of my colleague, Deputy Rabbitte, about the applicability of the complaints provisions. How can one avail of a redress procedure if one is not aware of the surveillance in the first place? Presumably if one manages to seek redress that indicates a failure in the surveillance operation. I appreciate the difficulties in achieving a balance and put forward that query in an operational rather than an ideological context. How was the figure of €5,000 arrived at as a suitable sum for redress? It seems like an arbitrary figure. Will all records of the authorisation papers from the relevant authorities enacting surveillance be retained for only three years after that enactment or until the day after the possibility of an appeal is exhausted?
It is important to have exacting standards for information retention. Once this kind of data is collected it will have a very high value for the people whom it targets. In certain State agencies and others in recent years, laptops and desk tops containing highly sensitive information have disappeared. Encryption is not the rule. Many agencies encrypt their data but others do not. While I realise that the two situations are not directly comparable, many agencies have a cavalier and dangerous attitude to data security and that must be addressed.
Several speakers mentioned resourcing, which is very important if the measures in the Bill are to have any degree of success. Reports in last Sunday’s newspapers referred to cutbacks in Garda numbers in the Templemore training college and to closures of rural stations. While the country is broke, closing Garda stations and taking gardaí off the beat will send out a message that contravenes the spirit of this Bill.
The other Deputy for Tallaght stated proudly that he will never take the view that young people will not turn to crime if they have community centres. Surely the Deputy is aware that nobody is proposing community centres as a cure for these problems. The broader societal aims of community support and early intervention in deprived areas, however, are crucial. Bills such as this deal with those who threaten ordinary, decent people across the country. The State, however, has a duty of care to young people in these areas. Socially, morally and financially we must complement a punitive approach to criminals with an intervention-based approach to the next generation.
I mentioned an acclaimed report from The British Journal of Criminology which makes the express link between criminality and learned parental behaviour. The authors of the report found that the children of persistent criminals commit more delinquent acts during every phase of their lives than those of non-offending parents.
My colleague, Deputy Jan O’Sullivan, yesterday highlighted disturbing research by Dr. Niamh Hourican that suggests that in parts of Limerick and other areas young children are being dragged into a life of crime and intimidation. The research finding suggests that criminal gangs and drug dealers have used children as pawns to intimidate individuals and communities. Without early intervention and investment in these communities the estates and open spaces that these children occupy serve as incubators for the next generation of criminals. The communities and good people in these areas need and deserve our support and they want action. This Bill is appropriate and timely, but I urge the Minister of State to accept or at least acknowledge that without meaningful intervention in the communities involved we will continue to visit this worsening crisis well into the future.
Senator Eoghan Harris Senator Eoghan Harris
Senator Eoghan Harris: When criminal justice issues are debated they are dominated by lawyers but it might not be a bad thing to hear more voices from the ordinary, non-legal side of the community. One of the reasons for the popular success of movies that deal with policemen who break the rules such as “Dirty Harry” is that the public sees the heroes carrying out justice as distinct from law. The public feels that we get a lot of law but very little justice. I am not against the rule of law. “Dirty Harry” is a tribute to the rule of law because when the hero stands over a guy on the ground with a gun he says to him “Do you feel lucky, Punk?” If he was an Iranian or Syrian policeman he would just pull the trigger but he does not do that because he is restrained by the Western jurisprudential, criminal, legal system that goes back to Grotius. “Dirty Harry” is about law. I am in favour of law but I am also in favour of justice.
This Bill is a very thin piece of Elastoplast on a large wound. No Bill or response by the Government has been adequate. The criminal gangs are a sui generis and a new thing in Ireland because they are based upon the delinquency created by the armed struggle of the Provisional IRA and the disrespect for human life is geometrical whereas the response of the community has been arithmetical to it.
I believe in a system of proactively searching out and tracking down the criminal gangs. Therefore, I believe in a system of investigating magistrates who are part of the Executive arm of Government but who, because they are lawyers, may not frighten the civil liberties lobby too much. It would be far better if, under section 12 of the Bill, instead of a High Court judge an investigative magistrate would take responsibility for surveillance and report back to a High Court judge.
I am glad that under section 15 there is not a petty fogging refusal to admit matters on small minor technicalities but that the general public good is taken into account. Having said that this Bill, like all others I have read in recent years, is inadequate for the level of crime that exists. I believe in two things when dealing with the new kind of criminal gangs. I believe in the investigative magistrates of the Italian model and I believe in internment where the State acts in loco parentis, that is selective interment for the sake of the criminals.
In a place like Limerick or many parts of Ireland, the rise of these feral gangs of young people — these Lord of the Flies scenarios — point out to us the inadequacy of the old criminal justice system which says that one person committed a crime and that person is fined, brought to court or jailed. That is not true because now the criminal gang, like the Provisional IRA in Northern Ireland, is deeply intertwined and cross-stitched with the community. Short of lifting out entire sections of that community for intensive periods of rehabilitation I do not see any real means of dealing with it.
Modern prisons should be created where entire families would be lifted and subjected to intensive social rehabilitation by the State. This is so difficult now because of the Ryan report, which has put a cloud over all efforts by the State to act in loco parentis at the very time we most need it to deal with these Lord of the Flies gangs of feral kids parading through Limerick. Everybody who has ever been to Dublin city centre has been mobbed by gangs of kids and it is a frightening thing because it is so unnatural.
Where the parents have failed and where the community is supporting this delinquent structure where older criminals are corrupting youth what answer is there in the long run? How can individual prosecutions handle that? This is where the non-legal mind comes in to play. Lawyers deal with case history, precedents and past performances. There is a new kind of criminal abroad. The Bill is a thin bandage on the wound, fair enough. I have nothing against it and I am for it in so far as it goes but it does not go far enough. We need to examine the entire criminal justice system from the view of the public, not so much previous case law but how we go about rooting out these serious quasi-military criminal gangs which operate like the Provisional IRA on quasi-political interventions and the creation of social structures to sustain them. That requires a mixture of political, legal and social interventions by the State for which we have no provisions at present. I do not expect any Minister to answer on the basis of this Bill the type of questions I am putting.
I am glad the Bill has the shadow of Senator Regan’s work; imitation is the highest form of flattery.
Senator Jerry Buttimer Senator Jerry Buttimer
Senator Jerry Buttimer: Like Senator Harris, I come here with a non-legal mind. However, I come with a sense of justice and a sense that we need to put things back on the right track. I welcome the Bill, the backdrop to which is the increase in crime. I welcome the comments of Senator Harris that we should examine our entire criminal justice system; let us do so not from the perspective of the legal mind but from the perspective of the victim, the ordinary person living in the community who must endure crime. The Minister of State, Deputy Curran, knows from his Department that drug lords are selling drugs and preying on the most vulnerable targets in our communities. I live in Cork city where we are undergoing a huge heroin epidemic.
Gangs are roaming the streets of all our urban areas, in particular Dublin and Limerick. The elements of fear and surprise at the news of death or attack is gone. That is a very sad indictment of society and how we handle crime and those who perpetrate crime. They are criminals and thugs and deserve precious little, but conscious of civil liberties one must give them due process and I accept that.
I get upset because various categories of crime are increasing, including white collar crime. I never wanted to see the zero tolerance approach introduced by the former Minister for Justice, Equality and Law Reform, Deputy John O’Donoghue, because that one-size cap does not fit all and does not lend itself to what we are doing. We need to re-examine the way our Prison Service operates and what function we want prisons to have. If we are serious about tackling crime we must have sentencing and rehabilitation but we must also enable people to see that crime cannot be made to pay in any shape or form.
I welcome the Bill and I commend the Minister of State. Like Senator Harris — I hate agreeing with him on everything this afternoon — I think Senator Regan had a very good Bill before the House earlier this year. However, we need to see the colour of the money within the Bill. The speech of the Minister of State, Deputy Curran, highlighted the various sections of the Bill but there must be overarching cross-party support for anything that can tackle gangland crime and can deter criminals from prospering in Irish society.
This afternoon on the Order of Business I raised the matter of a very interesting pamphlet received from the Irish Tobacco Manufacturers Advisory Committee. It states that duty is not paid on 20% of the Irish tobacco market, accounting for one in five cigarettes consumed. This comes from illegal activity and represents €387 million of revenue lost to gangland and criminal activity. Any effort that can be made to allow the Garda, or whatever organ of security or defence we want to use, to prevent drug use and sale, gangland crime and illegal activities must be supported.
It comes down to addressing resources and investment in structures and I would love to hear the response of the Minister of State. We can have all the fine blueprints and great Bills but how will we resource the Office of the Director of Public Prosecutions? How will we fund the national surveillance unit? If we are discussing the establishment of a DNA database, what will its structure be and how will we fund all these activities?
While I welcome the Bill, there must be assistance given in the carrying out of surveillance. There has always been surveillance by the Garda. In the estate in which I grew up, there were always gardaí and we knew they were watching certain people and doing certain things. We need to commend the work of the Garda. We all need to play a strong role in being vigilant with regard to crime. In stating this, we should not become completely negligent with regard to provisions on privacy and due process for all citizens, be it a fair and just trial or in terms of not invading privacy. However, in stating this, covert surveillance legislation needs to be introduced and needs to be a top priority of the Government in the context of tackling gangland crime and drugs.
This morning, Dr. Chris Luke, the emergency medicine consultant at Cork University Hospital and the Mercy Hospital, said, “The drug problem was all over the country but people did not seem to realise how big the problem was”. He was referring to the recent concert in Slane, where drugs were freely available and people were walking around off their heads after consuming a cocktail of drugs and alcohol.
Regarding drugs and the illegal sale of drugs, the Garda’s hands are tied. In many cases gardaí know house X or person Y is involved, but they cannot catch the people involved because they cannot see them exchanging the product. The Minister of State and I are involved in our own briefs and know full well that gardaí want surveillance to be introduced. It is about time that was done. This is not a populist message. I have been in the houses of people who had debts to pay and whose children have committed suicide, and of families who have to endure thugs who are getting away with everything.
The Bill allows for the gathering and use of information. If one takes it in simplistic terms, a drug dealer or criminal has no difficulty in using technology and the State has an obligation to protect its citizens. It is important we tackle gangland and organised crime, have no respect for the people involved in that and use all the means and methodologies at our disposal to deal with it. The Bill is welcome. It is important that we put the resources and structures in place to tackle the issue, particularly of drugs which, as the Minister of State knows, is becoming a major crisis on our streets. I commend the Bill. I thank Senator Regan for his work. Perhaps Senator Harris’s contribution on the whole structure of our criminal justice system should be looked at in a different debate. Senator Harris might call for such a debate at a later time.
Senator Jim Walsh Senator Jim Walsh
Senator Jim Walsh: Ba mhaith liom an tAire Stáit a fháiltiú go dtí an Teach chun an Bille tábhachtach seo a phlé. Senator Harris made a very interesting contribution to the debate on Second Stage. If we return to first base on the law, there is far too much emphasis on technicalities and legalities and not enough on ensuring effective investigation and prosecution within the system. We have seen, and still see, serious criminals, who are well known to the Garda and are involved in the most heinous of crimes, walking our streets. It is only when they are killed or murdered that their names and the kinds of activities they are involved in come to our attention.
It begs a very serious question of society, that is, what is wrong with our system which allows people who have a total disregard for the law, human life and the rest of society to be able to indulge in criminal activities, almost with impunity? Mention has been made in the House today, and on many occasions, of the activities in Limerick and, in particular, the callous murders of good citizens who stood in the way of criminals and were trying to protect others, such as Brian Fitzgerald and Roy Collins, who was playing his part in our judicial system.
It is a challenge to all of us to work to ensure that the legislative framework and the calibre and effectiveness of the investigative arm, namely, the Garda, and our legal and judicial system, operate to ensure people who are outside the law are held to account for their serious criminal activities. It is interesting that in the press release by the Minister, Deputy Dermot Ahern, on this Bill he stated: “Covert recordings will help to nail crime gang bosses and therefore we must advance this new law as quickly as possible.” He emphasised that the work of the agencies which are covered in this Bill is directed specifically at serious gangland crime. He mentioned offences such as witness intimidation, assaults, murder and extortion, while other offences connected with money laundering, drugs and firearms importation activities may also be involved. He said such activity is a deliberate attack on the foundations of our criminal justice system and society at large by ruthless gangs who are willing to murder. Nobody in this House would disagree with any of that. The challenge for us, in many instances, is to balance the right of the citizen under our Constitution and various human rights provisions on privacy, while ensuring the well-being of society is fully protected. Sometimes that is a fine balance.
I welcome the provisions of the Bill, with one small misgiving which I will come to later. I welcome the fact that the interests of the three main authorities involved, the Garda, the Defence Forces and the Revenue Commissioners, coincide in the Bill. I note with interest that no new powers are given to any of the agencies to provide increased covert surveillance. The powers are already in place for the agencies involved.
The purpose of the Bill is to prevent and detect serious crime and safeguard the security of the State against subversive and terrorist attacks. It allows the information and evidence accumulated as a consequence of surveillance to be used in the prosecution of criminals. It removes any legal objections based on the exclusionary rule. It specifies the types of crimes for which the Bill is applicable. It allows for a regulatory framework for the use of surveillance, but deals specifically with offences which carry a penalty of five years imprisonment. The Bill defines arrestable offences with reference to the two previous Acts, which are in the definitions. An arrestable offence is defined as an offence for which a person of full capacity and not previously convicted may, under or by virtue of any enactment or the common law, be punished by imprisonment for a term of five years or by a more severe penalty and includes an attempt to commit any such offence.
That point brings me to my misgiving, which was well illustrated by Senator Bacik when she made an analogy with search warrants and noted that search warrants do not apply to all arrestable offences. There are certain restrictions on them. If we examine this point, there is a clear comparison between getting a search warrant to enable the authorities to gather evidence and using surveillance to achieve the same result. I am a little concerned. I wonder why we did not restrict the measure to very serious crimes, such as organised gangland crime, which is a real threat to the State and society, rather than extending it further than search warrants. I am interested to hear the Minister of State’s view on why there should be a disparity.
I welcome the fact that surveillance is subject to judicial application, except in exceptional circumstances, and that there is a requirement in the Bill that the provisions be compliant with the Constitution and the European Convention on Human Rights. That will protect the personal rights of the citizen. I do not have any great concerns about the operation of the framework and do not necessarily disagree the 72-hour period is desirable. However, it is important oversight of it is effective and I welcome the fact it will go before a High Court judge who will report to the Taoiseach and that the report will be laid before the Houses. That is appropriate and I disagree with Senator Regan’s comments in that regard.
Senator David Norris Senator David Norris
Senator David Norris: I welcome the Minister of State. Like many preceding speakers, I am an amateur and do not have legal qualifications. Unfortunately, I missed the contribution by my colleague, Senator Bacik, who has an astute, professional view on these matters. However, I have some comments to make.
I will comment first on the Minister of State’s speech and then on a short briefing I got from the Irish Human Rights Commission. This Bill comes, I presume, in the context of various murders, in particular gangland murders and drug related offences. This area is a huge industry. It is astonishing these offences take place so flagrantly and blatantly. People even boast about their involvement in these matters, at least by implication, on sites like Facebook. Some notorious criminals and their molls in Limerick have put material up on Facebook boasting about “my favourite gun” in the aftermath of a murder. This is an affront to civilised, decent society.
There has been a notable, changing, sophisticated pattern of the use of electronic information in murder trials over recent years, for example, the use of mobile phone patterns where signals are picked up from one centre to another. However, whereas the pattern of movement of a suspect can be placed before the court as evidence, I have yet to learn of a situation where the substance of a conversation has been placed before the court. This means we have a situation where the police may know a crime has been or is about to be committed, but is paralysed in terms of bringing the evidence before the court. Therefore, I welcome the development that will allow this to happen. We must be careful however, because we are talking here about secret surveillance. Any involvement by the State in spying, which is what it is, on individual citizens must be examined carefully in case of what the American military would call “friendly fire”. We do not want decent citizens or people involved in minor infringements to be involved in this area.
The Minister of State said in his speech, “Both Bunreacht na hÉireann and the European Convention on Human Rights guarantee an accused person’s right to a fair trial.” That is only right. However, I noticed he did not refer to privacy. I would think that an important element. We have an obligation in international law to respect the privacy of the citizen except in rare and circumscribed circumstances. The privacy of third parties has not been raised in this debate so far. The police may be able to listen in to conversations and to sit some distance away and use electronic instruments to penetrate into a person’s home, but while there may well be a criminal present, there may also be a perfectly innocent third party present whose activities should not be of interest to the police. In cases where the news media also have access, an innocent person could be dragged unwittingly into the situation. I ask the Minister of State to consider the rights of innocent third parties who may, willy-nilly, have become involved in a criminal situation.
I am glad Senator Walsh raised the matter of an arrestable offence because this is something I marked as needing further consideration. There seems to be a fairly low threshold for this and there are a myriad of arrestable offences.
Senator Jim Walsh Senator Jim Walsh
Senator Jim Walsh: We agree on many things.
Senator David Norris Senator David Norris
Senator David Norris: On one or two, but it is a pity the Senator is such a sour puss on gay rights.
Senator Jim Walsh Senator Jim Walsh
Senator Jim Walsh: I agreed with the Senator on the civil partnership issue.
Senator David Norris Senator David Norris
Senator David Norris: Perhaps we will subject the Senator to surveillance, put a tracking device on him and see what he is up to see if we can embarrass him into supporting it — a bit of blackmail.
Senator Jim Walsh Senator Jim Walsh
Senator Jim Walsh: Senator Norris said today he was going to oppose it.
Senator David Norris Senator David Norris
Senator David Norris: No. We must not let this debate get too light-hearted because this is a serious matter.
An Cathaoirleach An Cathaoirleach
An Cathaoirleach: It is time to move on.
Senator David Norris Senator David Norris
Senator David Norris: I notice the Revenue Commissioners can apply to carry out surveillance. This must be considered only in a serious situation. I do not believe every little person who is massaging his tax returns should be subject to this. They deserve a little slack and not this kind of surveillance. The Minister of State spoke about ex parte applications. Of course the application would be ex parte as one would hardly send a notification to the person to be subjected to secret surveillance.
The provision in section 11 is excellent. It is a necessary and important corrective that people who are subjected to secret surveillance will have the right to make an appeal and should be compensated. I say this as someone who had his telephone bugged a number of years ago. I found the situation irritating, laughable and entertaining, but I would have made a complaint if possible and would have claimed €5,000 as well. That would have been welcome.
I note the Ministers for Justice, Equality and Law Reform, Defence and Finance may make regulations under the Act. Why is this? This function should be centralised. This is a matter of justice and only the Minister for Justice, Equality and Law Reform should have this power. I do not want the Minister for Finance sticking his nose into this, nor do I want the Minister for Defence doing so. They should have to work through the Department of Justice, Equality and Law Reform and should not be given free rein.
Before I come to the briefing by the Irish Human Rights Commission, I refer to the dreadful lost opportunity by the Government when it downsized and made its mean-minded attacks on various organisations. Today, I am sad to say, is the day of the funeral of the Combat Poverty Agency, which is shameful. The Irish Human Rights Commission has survived but in a slightly downsized form. I urge the Minister of State to take back to his colleagues the suggestion made at the launch of the last annual report that the Irish Human Rights Commission should be used by Government. It should send legislation to that so that it can be human rights proofed. The Government does not have to take up all its suggestions but this practice would be very useful and would cut some corners. The commission suggests that the definition of surveillance should include ongoing repeated photographing of people so that such actions by the Garda would also be subject to review. What is sauce for the goose is sauce for the gander.
With regard to tracking devices, four months is too long a time without a requirement to return to the judge to ask for an extension. In the case of a review by a High Court judge, when something suspect is discovered, the object of surveillance must be informed. This is good. I believe the Garda Síochána Ombudsman Commission should also be included in the Bill. I suggest we follow the principle that what is sauce for the goose is sauce for the gander. If there is criminal activity against a member of the public by a person who happens to be a member of the Garda, that person should have the right to get the Garda Síochána Ombudsman Commission to use the same machinery against that member.
A detailed and accessible code of human rights-based practice should be included in the regulations to be published by the Minister for Justice, Equality and Law Reform so that citizens can consult it to see where they stand with regard to this important new legislation. In general and in outline, I welcome what the Minister is doing with this Bill.
Senator Fiona O’Malley Senator Fiona O’Malley
Senator Fiona O’Malley: I welcome this Bill. It may not be overdue, but it is necessary. I listened to what some previous speakers said about how the Government often only gets spurred into action after a particular incident. The legislation on the Criminal Assets Bureau was a case in point. This legislation represents a similar type of move. It is never easy to change policy on an issue like surveillance, a policy that, as mentioned by the Garda Commissioner, has been around since policing began. A compliment is due to the Minister for having the courage to do this.
Senator Norris referred to the area of human rights and said it was a pity the Human Rights Commission did not get the opportunity to human rights proof the Bill. I find this comment offensive. It is as if the Government will not protect the human rights of the individuals although this is at the heart of the legislation.
Reference is often made to gangland crime, particularly in Limerick. This is slightly unfair to Limerick because while the area has problems, the Minister of State will know that major cities and smaller urban areas throughout the country have similar problems. Beginning with anti-social behaviour and moving right up to ferocious intimidation of a gang type, these are the issues with which we must deal. I commend the Minister for producing a Bill which tries to do so. The people in Limerick, Mr. Roy Collins in particular, just would not accept this kind of violence. His courage and dignity was quite remarkable and it is for such decent human beings who live in this society that this legislation is being drafted.
The Bill is totally appropriate. We are dealing with communities where there has been a complete breakdown of normal behaviour, sometimes over generations, and we must tackle this. I was very interested in Senator Harris’s point in this regard. It is intervention before people commit crimes rather than incarceration afterwards that is needed. There is much to be said with regard to the question of responsibility, in particular parental responsibility. This is why I admire what the Minister is doing in the Bill. It is fine to be pious and to have great aspirations about upholding the rule of law, which we of course all do, and protecting the criminal’s rights. However, in many cases, as in the case of Mr. Roy Collins, when does anyone stop to think about the most basic fundamental human right we would all uphold, and which Mr. Collins was denied, namely, the right to life?
We need to have perspective in this regard, which is why I particularly welcome the measures in the Bill. We need to apply a firm hand in dealing with people who have absolutely no respect for law and procedures, particularly concerning intimidation during trials. I welcome measures that will strengthen law enforcement and the services of the Garda Síochána, the Defence Forces and the Revenue Commissioners.
I have listened to the point made by others that the Bill needs to be applied correctly. As with other professions, we have to a certain extent rooted out problems where they have existed in the police force. We need to arm our police force with an appropriate ability to deal with the modern criminal and, for this reason, we must provide gardaí with legislation that does not hinder them. I made the point earlier with regard to Garda Commissioner Murphy’s statement that policing cannot be effective without surveillance. This is just a modernisation of policing in that evidence which has been procured through surveillance will now be allowed before the courts.
We are not crossing a major Rubicon because this is the position in which we find ourselves. The first duty of a government must be to the safety and security of its citizens. If people can operate throughout the country believing they are above the law and showing a total disregard for the lives and property of others, we must show a tough response.
I was interested in Senator Harris’s point concerning rehabilitation for families. He is correct that a young child who is before the courts does not become a criminal in isolation. All kinds of resources are needed in dealing with this problem and a part of the solution must be how we empower the whole community, particularly parents, in delivering a sense of responsibility to children.
It would be welcome if the President would consider calling together the Council of State to examine the Bill when it is passed by the Houses of the Oireachtas. We need to ensure as soon as possible after the Bill is passed that it is legally watertight because I can foresee it becoming bogged down in court cases. While it is not for a Member of the Houses of the Oireachtas to suggest to the President what she may or may not do, there would be a certain value in her calling together the Council of State. It would serve to support the Garda Síochána at a time when we need to send a very clear signal that the Oireachtas supports the Garda in the conduct of its work.
Deputy John Curran Deputy John Curran
Deputy John Curran: I thank the many Senators who contributed to the debate on the Bill. Many important points were made and I will deal with many of them, if not all. I am sure several of these points will be raised again and debated in detail on Committee Stage and Report Stage.
I thank Senators for generally supporting the Bill. It is important legislation which will be very useful to the Garda Síochána, although it must not be viewed as the only answer and must be taken in the context of and in conjunction with other strong legislation that is being published and to which I will refer.
At the outset, Senator Regan referred to the right to privacy in the context of the Bill, as did a number of other Senators. The right to privacy is not an absolute right. It may be affected by other interests, so while the European Court of Human Rights has held that secret surveillance amounts to a serious interference with privacy, it has indicated that such interference is permissible once it is proportionate and strictly necessary in a democratic society. This may be for the protection of national security, public safety or the economic well-being of a country; for the prevention of crime or disorder; and for the protection of health or morals, or the rights and freedoms of others.
A key consideration is that any measure must be prescribed by and in accordance with the law. This is where the Bill comes in. As Senators may have noticed, the Bill is quite detailed and strives to achieve a balance between the competing rights in this sensitive area. It provides the necessary safeguards in that respect, first by prescribing what is permissible by law and second by clarifying the position as to the admissibility of material obtained on foot of surveillance and the rules governing the disclosure of information connected with surveillance.
Senator Regan and other Senators commented on the Garda Síochána. I point out that the Garda Commissioner has indicated that the time is right to be in a position to use this type of evidence in courts. Sometimes the material which becomes available as a result of secret surveillance is so valuable and compelling that gardaí believe its use in evidence would be persuasive and significant. This may be to strengthen a case or it may be that the material on its own may support conspiracy charges. The Garda Commissioner has also indicated that additional resources are not required. The Bill effectively gives statutory effect to current operational practice.
With regard to provisions in regard to the designated High Court judge, this provision is similar to the oversight provision in the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993 and is included on the basis that the oversight provision of that Act has worked well since 1993.
I refer to points raised concerning the Garda Síochána Ombudsman Commission and its role under the Act. The decision taken at the time of the enactment of the Garda Síochána Act 2005 was that it would be preferable to wait until the ombudsman had gained more operational experience before considering the application to it of interception powers. That position also applies to surveillance powers under the Criminal Justice (Surveillance) Bill now. Accordingly, this is why section 17 has been included. It amends section 98(5) of the Garda Síochána Act 2005 such that the provisions of the Criminal Justice (Surveillance) Bill do not apply to the ombudsman. The ombudsman has a role under the legislation in that section 11 allows the complaints referee to refer a matter to the ombudsman where he or she believes there has been a contravention of the Act by the Garda Síochána.
I refer to Senator Bacik’s comments on the authorisation of entry into places to initiate surveillance. Sections 7(5) and 8(5) provide that authorisation or approval to carry out surveillance may be authorised by a superior officer in the relevant agency. An officer accompanied by any other person considered necessary may, if necessary, enter by reasonable force any place for the purpose of initiating or carrying out surveillance. Such an authorisation or approval may be subject to whatever conditions the issuing judge or superior officer considers necessary. An authorisation or approval will only be issued where the judge or superior officer is satisfied surveillance is necessary for obtaining evidence or information related to the commission of an arrestable offence, preventing the commission of an arrestable offence, to maintain the security of the State and when the surveillance sought is the least intrusive means available proportionate to its objective and of reasonable duration.
Senator Bacik referred to the emergency approval of 72 hours’ surveillance. This applies only in cases of exceptional urgency, for a limited period of up to 72 hours and is not renewable. The Bill provides for such surveillance to take place under the sanction of senior officers: a superintendent in the case of the Garda, overseen by an assistant commissioner, or officers of comparable rank in other agencies. Approval is confined to cases in which there is a risk that a suspect may abscond, the surveillance is necessary to prevent a serious crime or there is information evidence may be destroyed or lost. Surveillance beyond this period requires judicial authorisation.
I refer to Senator Bacik’s comments on tracking devices, the use of which is regarded as a less intrusive means of surveillance than the use of other devices. For the purposes of the Bill, tracking devices are defined as those which provide information regarding the location of a person, vehicle or thing. In providing for a system of approvals rather than authorisations, the Bill seeks to achieve a balance between the necessity for fast action in the placing of tracking devices and the provision of an effective regulatory framework for their use. As a counterbalance, the Bill provides a stringent system of control for the use of tracking devices which includes rules on record keeping and reporting where such an approval is granted.
I refer to the comments on John O’Brien’s newspaper article. The author considers the Bill solely from an operational point of view, but we must also consider the Constitution and the European Convention on Human Rights, ECHR. This is why the safeguards such as the judicial District Court authorisation process are essential. We have also taken on board some of the concerns of the Irish Human Rights Commission which were included during the Bill’s passage through the Dáil. I refer to Senator Hannigan’s point on retention of records. The measures are in keeping with the emerging ECHR jurisprudence. Section 9 allows for relevant Ministers to retain documents beyond the specified period, which relates to the point made by the Senator. There is provision to go beyond that specified period.
I refer to Senator Walsh’s comments on offences covered by the Act. It is not intended that the surveillance covered in the legislation would be used widely, only in certain specific circumstances in response to a threat posed to citizens by criminal elements. It is also subject to stringent safeguards. Senator Norris referred to people materially affected by surveillance such as a third party who is overheard. Such people are covered by the complaints procedures.
Most of the comments of Senator Harris did not relate to the legislation. However, they were provocative and thought-provoking and merit a wider debate in their own right. One comment was whether the legislation would be an effective tool in the fight against crime. The Bill will help to ensure more prosecutions and to secure convictions in cases which might not otherwise have progressed to court. The Garda Commissioner believes the potential of the Bill to fight against gangland crime, such as the tragic events which occurred in Limerick recently, is very significant.
At the outset I remarked that we should not simply view the legislation on its own. In the coming days the House will be asked to consider additional measures to tackle organised criminal gangs. In the light of the situation we face with ongoing intimidation of witnesses and jurors, the Criminal Justice (Amendment) Bill 2009 provides that the powers available to combat subversive organisations may be applied to criminal gangs. This would mean crimes involving criminal gangs could be scheduled offences for the purposes of the Offences against the State Act such that those involved could be tried in the Special Criminal Court unless the Director of Public Prosecutions states otherwise. The Bill provides for the new offence of directing the activities of a criminal organisation which carries a maximum penalty of life imprisonment. Provision is also made for organised crime offences with penalties upon conviction of up to 15 years, including intimidation of witnesses and jurors. The Criminal Justice (Amendment) Bill 2009 complements, to a large extent, the provisions of this Bill.
Senators have welcomed this legislation which is part of a wider package of legislative measures. To deal with gangland crime, more legislation is necessary. However, this is very specific legislation to give effect to the operational procedures followed by the Garda at present. I am pleased Senators have recognised the necessity of the legislation, I thank them for their constructive input and look forward to returning to the House in the coming days to proceed with Committee and Report Stages.
Question put and agreed to.
Committee Stage ordered for Thursday, 2 July 2009.
Sitting suspended at 5.40 p.m. and resumed at 5.50 p.m.
Seanad Éireann 196 Criminal Justice (Surveillance) Bill 2009: Second Stage.