Criminal Justice (Surveillance) Bill 2009: Report and Final Stages.

Amendment No. 1 arises from committee proceedings. Amendment No. 38 is related and will be discussed with amendment No. 1.

I move amendment No. 1:

In page 3, between lines 15 and 16, to insert the following:

""Act of 1993" means the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993;".

These are technical amendments that define "Act of 1993" in the interpretation section of the Bill as the "Interception of Postal Packets and Telecommunications (Regulation) Act 1993" and provides that references to the 1993 Act throughout the Bill will be interpreted as such.

Amendment agreed to.

Amendment No. 2 in the name of Deputy Ó Snodaigh arises out of committee proceedings. Amendments Nos. 2, 3 and 5 are related and will be discussed together.

May we have copies of the grouping list for the amendments?

It is being circulated.

I move amendment No. 2:

In page 4, after line 39, to insert the following:

"(c) the targeted, ongoing and repeated photographing of persons for the purposes of monitoring and/or recording the movements, activities and communications of such persons,”.

These amendments follow the recommendation of the Irish Human Rights Commission, IHRC, which believes that the Bill's definition of "surveillance" is not exhaustive. The IHRC has rightly pointed out that, for instance, the use of cameras in public spaces are excluded. However, it has also stated that the recognition by the European Court of Human Rights that a right to privacy exists to a certain extent in public places must be respected.

The IHRC went into detail on why it believes that the targeted, ongoing and repeated photographing of a person for the purpose of monitoring him or her or recording his or her movements, activities and communications via a camera falls under the legislation's description of surveillance. The IHRC believes that the current description should be extended to cover this type of photography, as it does not always cover the activity desired by the Garda Síochána. Currently, "surveillance" means monitoring, observing, listening and making recordings of persons. Photographing adds to existing powers and covers the activities in which the Garda is already involved in many instances. That evidence can be used in a similar fashion as recorded evidence and the like.

The Bill sets out what types of activity can be done, who must authorise them and how they are to be documented. Accepting my amendment would be useful. The scope of the Bill is not just to cover the ordinary activity of a member of the Garda Síochána, but, in particular, for the permission required where there is an ongoing and protracted targeting by the Garda of a suspect. There are instances where the Garda would like to have this power and it would be covered by the same rules and regulations we are setting out for surveillance devices.

I am inclined to support the amendment. I tabled a similar amendment on Committee Stage on which we had a good deal of discussion. I do not wish to rehash the points made, other than to say Deputy Ó Snodaigh makes a reasonable point, which was made in correspondence Members received from the Irish Human Rights Commission. Notwithstanding what the Minister said in the earlier discussion of the matter, I do not see any harm in the amendment or how it would detract from the import of the legislation in any event. It is important that the definition be extended, as outlined in the amendment. Where is the harm in it or what is the downside of the amendment? The Minister will say the amendment is either, at best, unnecessary, or, at worst, damaging. I am inclined to support the amendment on the basis of the points made to us, with particular reference to clearing up any doubt as to what surveillance might mean.

The import of the legislation is not to interfere in the regular day-to-day surveillance that is the norm of policing. The focus of the amendment is surveillance with the aid of electronic surveillance devices. What the Deputies are proposing, in effect, is that the normal type of surveillance would also be included. That would result in utter confusion from a Garda point of view as to whether the members of the force would have to get authorisation to have a normal type of investigation for the monitoring of known criminals. That would leave the hands of the gardaí very much tied behind their backs in terms of normal, day-to-day policing.

The amendments seek to allow for the targeting of persons by the Garda, including repeated photographing of persons. What is "targeted surveillance"? The Garda would have to make a determination as to what is "ordinary surveillance" and what is "targeted surveillance" and decide on the use of informants. In effect, the aim of the three amendments is to expand the definition of surveillance. The Bill is designed to regulate surveillance by electronic means, including tracking devices or other electronic devices. Cameras are specifically excluded from the definition of surveillance devices. I cannot accept the amendment. The expansion of the definition as proposed by Deputy Ó Snodaigh, supported by Deputy Flanagan, would tend to include ordinary day-to-day surveillance by gardaí and would make the situation totally unworkable from their point of view.

It is a pity that the Minister cannot accept that the intention of the amendments was not to in any way hamper the day-to-day activities of the Garda. I cannot ask the Minister to consider an alternative wording at this Stage. The wording in the amendment is one we came up with in an effort to be helpful. Surveillance, as defined in the Bill, covers a great deal of Garda activities. Monitoring takes place on a regular basis, but it does not allow for photographing or video recording on an ongoing basis. That is why we included the wording "ongoing and repeated photographing of persons for the purposes of monitoring and/or recording the movements" in the amendment.

I will not press the amendment. I have argued the case put forward by the Irish Human Rights Commission that the wording proposed in the amendment should come under the definition of surveillance and what surveillance devices are allowed to be used by the Garda Síochána. It is a pity that due to the rushed nature of the debate we have not had a longer period to tease out whether this type of definition is covered in other jurisdictions. I will leave it at that for the moment. I urge the Minister to consider the matter as the Bill progresses to the Seanad. He might have an opportunity to amend it there and we can return to the matter in the Dáil.

The Minister referred to "ordinary" surveillance and "targeted" surveillance. We are dealing with a definition of surveillance. Is the Minister telling the House that a targeted and repeated photographing of persons for the purposes of monitoring and recording their movements, activities and communications is not surveillance? If that is not surveillance, then I do not know what is. I am not sure whether we are in the business of talking about ordinary surveillance, targeted surveillance and special surveillance. We are talking about surveillance. I would have thought that in a definition of surveillance we would not leave a doubt as to what is surveillance for the purposes of legislation. We are not talking about a tourist with a camera. We are talking about activity that is targeted, repeated and ongoing for the purposes of monitoring and recording a person's movements and activities. It seems to me that this is surveillance.

I am not sure whether that will hinder the Garda in the course of its work. That would not be anything like the object of the exercise. What we are doing is ensuring that what is in the legislation allows the Garda to engage in the type of activity that will be legally recognised and accepted under law. I would be disappointed if the Minister were to say that the amendment would hamper the Garda in the course of its duties. I would not like to be associated with any section of an Act that might so do. The activity is either surveillance or it is not. To talk about ordinary surveillance, as opposed to some other type of surveillance, is to subject the Bill to a lot of argument.

Amendment No. 3 refers to using officers to monitor the movements, activities and communications of a subject in a targeted, ongoing and repeated way. If one were to allow that, in effect, one is extending the definition of surveillance and, therefore, extending the necessity for an authorisation to be gained from a judge in order to allow officers to monitor the movements, activities and communications of a subject in a targeted way. The whole portent of the legislation was to allow the evidence garnered from electronic surveillance devices to be used in evidence. Officers who monitor and survey on a normal policing basis are able to give the evidence in court themselves and be cross-examined. That is the distinction and it is necessary in that the Bill deals with electronic devices and the admissibility of the evidence garnered by such devices as opposed to that garnered in normal day-to-day policing activity in respect of which the gardaí would be questioned in a subsequent trial.

I am disappointed by the attitude of the Minister in that nowadays most cameras are electronic devices in any case. I presume that gardaí, in their day-to-day activity, must have to sign off on the use of cameras and video cameras. This may involve obtaining permission from a senior officer. There is obviously a high threshold set for most of the surveillance devices in question. Perhaps there is a flaw in my amendment in this regard. The use of a camera or video camera, for a designated purpose, might have to be signed out with the permission of a superintendent, inspector or officer of another grade. Doing so would attest to the fact that a device has not been interfered with and records the correct date. We are not trying to prevent the operations of gardaí who, in the normal course of events, happen upon a robbery or encounter, by chance, a suspect they have been looking for and use their mobile telephone, for example, to capture information. If the new TETRA system were running properly and radios had the facility to take photographs, as is the case with some police communications systems, the information gleaned could be used for the purpose to which I refer.

My amendment was not intended to hamper the Garda in any way but to ensure that ongoing activity would be facilitated. In this regard, consider the example of a stake-out where it is known that a criminal gang or individual is planning a crime in respect of which some type of recording device must be put in place — for example, to record movements to and from a specific location. This is not covered. Monitoring and observing require personal attestation whereas, with this Bill, we are trying to comply with the European Convention on Human Rights to ensure that ongoing surveillance will not breach the right to privacy while at the same time allowing the Garda to carry out its functions properly. If this balance is struck, the Garda could use the information gleaned in a court case to ensure that the convictions desired by the public are made.

I am concerned that the use of cameras and video cameras will not be admissible in court or that there might be a challenge if they are used on an ongoing basis on the grounds that they are not authorised surveillance devices covered by this legislation. I might be wrong. I was trying to be helpful by tabling my three related amendments in this regard.

Amendment put and declared lost.

I move amendment No. 3:

In page 4, after line 39, to insert the following:

"or

(c) using officers or informants to monitor and/or record the movements activities and communications of a subject in a targeted, ongoing and repeated way,”.

Amendment put and declared lost.

Amendments Nos. 4 and 9 are related and may be discussed together.

I move amendment No. 4:

In page 5, line 1, after "devices" to insert "including tracking devices".

This amendment is similar to those we have just discussed. It deals with tracking devices and is based on the report given to us by the Irish Human Rights Commission, which stated there should be an explanation offered as to why tracking devices are not included in the definition of "surveillance" and why the use of tracking devices will come under section 3 of the Bill.

Mr. Justice Morris criticised the absence of any statutory or other guidelines governing the practice of surveillance. My amendment focuses on this because surveillance by a tracking device is akin to the surveillance already mentioned, although in many ways it is rudimentary. It raises some concerns in respect of the right to privacy, which is covered by the European Convention on Human Rights. I propose to ensure that the use of surveillance devices by the Garda will not fall outside the law and that there will be a rationale behind their use that at least will have a basis in law. If this is achieved, there will be safeguards similar to those applicable to other devices. We are trying to ensure that the use of tracking devices is admissible in law and they can be used effectively to ensure that people are brought to justice.

The Bill defines surveillance as monitoring, observing, listening to or making a recording of persons, places or things by or with the assistance of surveillance devices. The reason "tracking device" is defined separately is because it involves a different type of surveillance. A tracking device is used only for the purpose of providing information on the location of a person, vehicle or thing. It is defined separately in order to distinguish it from other types of surveillance device because, by its nature, surveillance by a tracking device is less intrusive than that by other devices. As such, the approval procedure, rather than a judicial authorisation, is used to allow the use of the tracking device. The amendment proposed by the Deputy would lead to confusion and I cannot accept it. A tracking device is different from the other surveillance devices, which are used in particular to monitor activities. The latter could be used to listen to activities of individuals while the former is only used to show the location of a person.

I will not dwell on this too much. A tracking device can now be quite sophisticated and can track more than an individual's general location. It could track somebody going to the toilet, for example. Therefore, a question arises over interference with the right to privacy. All we are trying to do is ensure that the Bill does not fall foul of laws establishing the right to privacy and other laws. I presume tracking devices that are also listening devices which can be switched on or off would be covered by the law as it stands.

We need more time to consider this legislation. The Bill could have been much more detailed and allow greater scope for the Garda Síochána.

Amendment, by leave, withdrawn.

I move amendment No. 5:

In page 5, line 12, after "access" to insert the following:

"and except where a camera is used for the targeted, ongoing and repeated photographing of persons for the purposes of monitoring and/or recording the movements, activities and communications of such persons".

Amendment put and declared lost.

Amendment No. 6 arises out of Committee proceedings. Amendments Nos. 8, 11 and 58 are related, therefore, amendments Nos. 6, 8, 11 and 58 may be discussed together by agreement.

I move amendment No. 6:

In page 5, line 19, after "Síochána," to insert the following:

"officers of an Garda Síochána Ombudsman Commission,".

These amendments try to ensure that the powers of surveillance that we are trying to grant to the Garda Síochána in this Bill are also available to the members of the Defence Forces and to another organisation set up to investigate crime especially in light of the Morris report and the danger that the Garda Síochána Ombudsman Commission would be hampered if it did not have the power to properly investigate crimes that have been drawn to its attention.

We had a good argument on this on Committee Stage. Although I went away and thought about it I could not see the logic of the delay in giving this power to the commission given the scale of the abuse of power that the Morris tribunal investigated. I hope that the Garda Síochána Ombudsman Commission would never have to resort to the use of surveillance devices or ongoing surveillance and that the members of the Garda under investigation would co-operate and prove wrong the charges against them.

To deny these powers to the commission would suggest that the new era that was promised for the Garda and the investigation of abuses of power has not reached its full conclusion and we have a long way to go. It is not a power that any of the organisations that will be mentioned in the Act can use at will but it is important given that the commission often investigates serious injury, or a death in custody, or maybe a cover up. In Donegal explosives were used, hoax bombs were prepared and officers colluded to cover up what was happening. It is sometimes difficult in any organisation to get to the truth of a matter. We should give whatever tools we can to an organisation tasked with investigating these complaints even in the case of a death.

Most cases that come before the commission, like those that came before the Garda Síochána, have been ruled as frivolous but now and again serious charges are made. We need to ensure that the commission has the tools to carry out a full investigation if that is ever required. Hopefully it will not be. There is a change in the culture of the Garda from the top down and I do not expect the power I am proposing to grant to the commission to be used at all. That would be a good sign.

The final amendment in the group tabled by me and Deputy Rabbitte seeks to delete section 17 which ensures that they are not excluded but the preceding amendments name the Garda Síochána Ombudsman Commission earlier in the Bill so that we do not grant it powers simply by not excluding it but do so specifically.

I broadly support Deputy Ó Snodaigh's points. The powers that we are conferring here are being conferred not alone on the Garda Síochána but also on the Defence Forces and the Revenue Commissioners. It might at first glance appear questionable or odd that such powers are being conferred on the Defence Forces and the Revenue Commissioners but on reflection and following the Committee Stage debate it makes perfect sense to extend these powers and the admissibility of the evidence so gathered to the Revenue Commissioners and to military intelligence and so on.

I cannot see why the Minister is expressly excluding the Garda Síochána Ombudsman Commission. He did not tell us a great deal, notwithstanding a lengthy debate on Committee Stage. He said the ombudsman commission should learn to crawl before it walks, that it is a new institution, and let us test it and see how it performs when its mettle is tested against experience and it builds up its own jurisprudence, and so on. That is not much of an argument. It runs against the experience outside this jurisdiction. This facility is extended to the ombudsman in Northern Ireland.

Deputy Ó Snodaigh makes a fair point when he brings the Morris report into the debate. We have an extraordinary capacity in this country to forget things when it suits us and to consign to oblivion something like the Morris tribunal on which we spent a great deal of taxpayers' money, and time. The Morris tribunal report makes several recommendations and we nod in their direction then put them on a shelf somewhere where they are forgotten. It is nowhere similar in any way to criticising the Garda Síochána generally to say that what was revealed in the Morris report was appalling beyond belief and some of what was done defied belief.

Some of my colleagues will never forgive the present Minister for Justice, Equality and Law Reform for his reaction to that report when he came in here and created a diversion by selecting two colleagues in the House for criticism. If Deputy Stagg and I were put in possession of disturbing information of an allegedly criminal nature what could be more responsible other than going to the Minister for Justice, Equality and Law Reform and telling him or her the information we were given and that we do not know whether there is anything in it and asking that it be checked out because it is of great concern? This is what my colleagues in the House did at the time but the Minister created a sideshow here and blew up a sandstorm and avoided the issues that Deputy Ó Snodaigh raised today about the Morris report.

The Garda Síochána Ombudsman Commission has the remit to inquire into alleged serious offences that, as has been stated, might well involve the death of a person or serious injury and in any event, the investigation of arrestable offences. If there were allegations of that gravity and the commission felt obliged prima facie to have them investigated then it ought to have available to it the same tools to do the job as the Garda Síochána has in terms of arrestable offences in the jurisdiction generally.

I cannot see any plausible reason for putting the Garda Síochána Ombudsman Commission at a disadvantage because if it was investigating complaints along the lines that might be referred to it, which would involve allegations of corruption in the Garda Síochána, it would manifestly be a more serious case than if those allegations were affecting an ordinary citizen. I do not think it is any secret that Ombudsman offices in the neighbouring countries which I mentioned believe that they ought to have available to them the capacity through surveillance to assemble evidence that might be admissible in court subsequently.

For the Minister to state that the Garda Síochána Ombudsman Commission is a new institution and is not yet experienced is not very convincing. There may well be a meeting of minds between the Minister and his officials in this regard but I do not know why. We are scarcely talking about bugging the Garda stations of the country. If malfeasance was suspected or under way it is a bit improbable that it will be conducted from the Garda station in any event. Whether it is or is not, the argument for the Garda Síochána Ombudsman Commission being treated the same as the Garda Síochána seems to be compelling in terms of the instruments at its disposal to fight crime wherever that crime is it, yet the Minister has not replied addressed this.

The Minister can do it whichever way he wishes. Deputy Ó Snodaigh has advanced a couple of alternative amendments and I advanced the excision of the relevant subsection. Whether or which, the Minister should not permit this Bill to be passed while putting the Garda Síochána Ombudsman Commission at a disadvantage. It is very important to this House and those who established the commission with such expectation and confidence that what happened can never happen again and that people can have confidence when complaints are made that they are fairly, thoroughly, rigorously and properly investigated and that the commission is shown to be a success. We and the taxpayers have a vested interest in that and I do not think the taxpayers would appreciate the Minister putting the commission at a disadvantage vis-à-vis the powers we are now conferring on the Garda Síochána.

I am inclined to agree with the amendments. We had this debate on Committee Stage. I recollect that the Minister did not have a huge problem with the principle of what is contained in the amendment. His objection was more from a time point of view, that the Garda Ombudsman Commission is not sufficiently experienced or has not had sufficient time to experience a review or extension of its powers. I would like to hear more of a principled argument rather than an argument on the matter of time.

If we were dealing with the matter of time then the inclusion of a review mechanism in the legislation that would allow for us in the House to revisit the legislation at some early date might make the Minister's argument more compelling. However, the only reference to a review of the operation of the legislation is by consultation between the President of the High Court and the Minister under section 12, which presumably would be in private and would not have any bearing on any activities that might take place in the House other than by motion on the part of the Minister. It seems the Minister has reserved unto himself any powers of review and perhaps this makes the extension at this stage of powers under the legislation to the Garda Síochána Ombudsman Commission all the more important.

On Committee Stage I drew the Minister's attention to the fact that the adjoining jurisdiction of Northern Ireland had such powers vested in its ombudsman. Perhaps in retrospect I did not pick the best example because the Minister stated — I accept what he said — that the policing situation is such in Northern Ireland that it is somewhat different to here and has been for reasons on which there is no need for us to dwell for any extended period of time.

Best practice in England and Wales could be considered on this side of the water in a way that perhaps the situation in Northern Ireland might not. Under section 4(1) of the Independent Police Complaints Commission (Investigatory Powers) Order 2004, officers of the Independent Police Complaints Commission are prescribed as being capable of authorising surveillance for the purposes of the legislation. We can draw upon best international practice. It is important to note that the Garda Síochána Ombudsman Commission is already engaged in some respect in this proposed legislation given the complaints procedure and the role that we are vesting in the Garda Síochána Ombudsman Commission under section 11. It will, therefore, be involved in some respects as a receiving party for a complaint.

However, while it may be that the commission has an involvement, when it wishes to engage in the surveillance that may be necessary having regard to the fact it is charged with the responsibility of dealing with serious matters involving the death and serious injury of citizens and the embarking by it of an appropriate investigation into these matters, it could well be that we will hamper the commission's work by not according appropriate power to it as we are according not only to the Garda but to members of the Defence Forces and the Revenue Commissioners. Greater power is being given to the Revenue Commissioners than to a body designated as a complaints office under the legislation.

Debate adjourned.