Criminal Justice (Surveillance) Bill 2009: Report Stage (Resumed).

Debate resumed on amendment No. 6:
In page 5, line 19, after "Síochána," to insert the following:
"officers of an Garda Síochána Ombudsman Commission,".
—(Deputy Aengus Ó Snodaigh).

Deputy Rabbitte said the views I expressed on the report of the Morris tribunal were a diversionary tactic. I do not accept that. I was referring to a substantial part of the report which criticised the way Members handled complaints. It is difficult for Members but I was merely responding to the report which was significant in respect of how the investigation took place.

Some Members expressed sentiments, which were also expressed on Committee Stage, to the effect that we are out of kilter with neighbouring jurisdictions. They said on Committee Stage that we are out of line with the practice in England, Wales and Northern Ireland. It is true that equivalent bodies in England and Wales have powers of surveillance, but the office of the police ombudsman for Northern Ireland has neither interception powers nor powers of surveillance. Under the Regulation of Investigatory Powers Act 2000 the ombudsman's office in Northern Ireland has powers of directed surveillance but those powers do not extend to either interception or the type of surveillance that is the subject of this legislation. We are not out of kilter with our peers across the Border. We checked this with the Northern authorities because it arose on Committee Stage and in the correspondence from the Human Rights Commission. The extension of interception and surveillance powers to the Northern Ireland ombudsman's office is kept under review. It is a relatively new organisation set up in 2001 and our own ombudsman commission has been modelled on that office.

While in principle I believe we should examine this at a future stage, given that the Garda Síochána Ombudsman Commission has been swamped with complaints since its inception in 2005, we need to give it time to operate. When the 2005 legislation was drafted and approved by the House, we did not extend to the GSOC on the same basis the powers the Garda has under the 1983 legislation to intercept telephony and postal packages because it was a new organisation and should be given time. I cannot say any more than that. Deputy Charles Flanagan referred to the fact that the GSOC has a role under the Bill in that the legislation allows the complaints referee to refer a matter to the GSOC where he or she believes there has been a contravention of the legislation by the Garda. I cannot accept the amendment.

It seems odd that when the objective of the legislation is to prevent crime and murder and tackle gangs, the most contentious point seems to be whether we give powers to the GSOC against gardaí. It takes away from the focus of the legislation which must be quite specific. I agree with the Minister's approach that perhaps it will be necessary to give this power to the GSOC in the future but now we should act to tackle the criminals, get those boys and girls into jail and provide the Garda and the courts with the evidentiary powers in the legislation. We should forget about the other matter for the moment and examine it in the future, as the Minister has stated.

I welcome Deputy Byrne's intervention and I agree that the intention of the legislation is to tackle crime. As I stated on Committee Stage, if that crime is carried out by a person in uniform, it is even more appalling. It is interesting that the Minister repeated what he stated on Committee Stage, that at some future stage we should examine this. The same attitude was adopted with regard to the Garda Complaints Board, that at some future stage we might change it, give it more powers or make it more effective. This did not happen and because it was so ineffective we, as a society, were forced to come up with the GSOC. We do not want the same to be said about the GSOC in the future. It is time to allow it to be able to operate and, as I stated earlier, it is hoped that it does not have to use these powers. The time to act is now when we have an opportunity. Who knows when the next Bill will come? We might not have an opportunity in the future. For the GSOC to work effectively it needs resources, not time.

On the amendment itself I do not understand how providing this additional power does anything but increase the ability of the Garda Síochána to do its work and help a body which is tasked with ensuring crime within the Garda Síochána, or a culture that existed and was exposed by the Morris tribunal, is at an end and that those who would have an inkling towards it within the force, and I doubt there are many left, if any, understand that the full rigours of the law available to them as members of the Garda Síochána are also available to those who would investigate crime within the force. I will press this amendment.

In general, I welcome the Bill. I spoke about it when it was published but I was not involved on Committee Stage. It is all about what checks and balances are included in the Bill and at a level of principle, if we decide to give the Garda power to combat criminal gangs, once we have provided the constitutional protections required, we should leave it at that. There is no point in introducing provisions to allow the Garda to carry out surveillance on criminals and use the information gathered as evidence in court but then trammel them with many sub-clauses that if they err, they are tripped up.

The thrust of the Bill is to encroach on the constitutional rights of certain individuals. Whenever surveillance is allowed under law it encroaches on the right to privacy of the individuals being surveilled and often on that of their families and social contacts as well. It must be proportionate and necessary. It is proper that the Minister should decide the Garda cannot go on a fishing expedition and that surveillance is confined to the search for information to be used in evidence which cannot be acquired otherwise by the Garda. This is quite a severe restriction on the activity and I am not too sure how it will play out in practice. I am not sure it is practicable. Does it mean that if a sergeant in charge were to assign two gardaí to follow a particular vehicle around the town on a night the Garda resources to do so were available that a tracking device could not be used on that vehicle because the information could have been obtained through normal Garda activity? That is just an aside.

The safeguard that it must be a superior officer, a senior Revenue officer or a senior Army officer that instigates the surveillance in the first instance is appropriate, especially when the senior officer in question has to go to a District Court judge to get permission. The mechanism whereby the referee can review situations subsequently is also proper and proportionate and the safeguards are being provided.

The one area about which I have concern is the 72-hour provision, where recourse to a District Court judge is not required in certain situations of urgency. This certainly will be open to challenge. I appreciate that similar provisions are in place in other European jurisdictions but it is difficult in the first instance to envisage why it would be difficult as a matter of urgency to have recourse to a District Court judge. Even if it is, one could envisage a situation arising where a person was kidnapped and being held to ransom, a District Court judge could not be found and surveillance devices were used to gather information or tracking devices were used on certain vehicles.

I query the constitutionality of this provision. In analogous legislation, the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993, there is recourse to a District Court judge and in the main provisions of this Bill there is recourse to a District Court judge. I can see why the Garda authorities would consider it necessary to have a period of 72 hours without recourse to a District Court judge but will the Minister re-examine this provision to ensure its constitutionality?

I do not know whether it was amended on Committee Stage but when I read the Bill originally the provision to surveil for a period of 72 hours could be done on the say so of a superintendent. At a minimum that should be a chief superintendent. Analogous provisions normally require the warrant of a chief superintendent rather than a superintendent. In so far as possible the Minister should proof this provision against constitutional challenge. There is no point in having provisions if subsequently they are attacked constitutionally and serious criminal activity goes unpunished because the law was flawed because we in these Houses did not do our job. The Minister must proof this constitutionally and that is a weakness in theBill.

I am not sure whether the ombudsman's office should be used. The use of a district justice and the referee system to subsequently assess the manner in which the Act is applied gives adequate constitutional provision. There is a mechanism for complainants through the referee system and this is analogous to the 1993 Act. The ombudsman's role is different and the office in the short time it has operated has been effective, but when something is working well, we should not load every task on top of it.

The provisions are adequate for the needs of the Bill to provide the constitutional safeguards necessary. The opening position is the House on the advice of the Minister is deciding to invade the constitutional rights of certain individuals, principally the right to privacy, and that must be balanced with a series of safeguards in order that this is only done in exceptional circumstances, where it is necessary and proportionate to do so. However, once the balance is struck, it is struck and the Minister has it right with the exception of the 72-hour provision where there is an element of doubt about whether the safeguards are sufficient.

The amendments relate to the extension of powers and the proposal is to extend them to the GSOC. The reason the Revenue Commissioners and the Defence Forces are included is in the fight against drug crime, in particular, the Garda, the Naval Service and the Revenue Commissioners through its customs and excise division operate together on a multi-agency basis. Under its legislation, the GSOC's remit is restricted. This legislation is designed to tackle arrestable crime, crime with a sentence of five years or more and serious crime. I do not say gardaí are not capable of serious crime but we are examining amendments to the ombudsman commission's Act in conjunction with requests from the commission and we are discussing them with the Garda, which has views in this regard. There might be an opportunity on another occasion to examine the extension because, in principle, I do not have a major issue with it but this is not the right time because the main focus of the legislation is on organised crime.

I welcome Deputy Noonan's comments. While we were criticised for not bringing the legislation forward earlier, he is absolutely correct that the Bill provides for invasive surveillance, which infringes on people's privacy. With regard to his comment on the 72-hour provision, the superior officer must be satisfied under section 7(3) with the grounds for believing that an authorisation should be issued by a District Court judge. He or she under section 7(11) must report to an assistant commissioner not later than seven days afterwards specifying the grounds on which the 72-hour approval was granted, including providing a copy of the written record of approval and a summary of the results of the surveillance. While the Deputy is entitled to his view, I have provided for proper checks and balances in respect of his provision because it must be accepted if the situation is urgent, the Garda should have the ability to act in an urgent manner, provided it does so in a proportionate way.

The GSOC will be disappointed that it is being disadvantaged in its capacity to discharge its function vis-à-vis the Garda in this legislation. The commission may take some comfort from the Minister saying it is only a matter of timing and the body is so new that he does not want to extend the power at this stage. One may draw the inference from this that he may do so in the relatively near future, given that he is promising amending legislation for other reasons.

However, the issue is the commission's responsibility to investigate arrestable offences. As the Minster fairly said, that is a serious matter because we know we cannot rule out the possibility of a garda or gardaí being involved in serious crime. The members of the commission argue that in the event of them being seized of such a matter, they would like to have available to them the same tools as the Garda if they are to investigate the matter. This is the case in Wales and England. The Minister will accept that he has changed his argument about Northern Ireland. When the issue was raised on Committee Stage, he said a comparison could not be made with Northern Ireland because the policing scenario is different but now he is saying the interception powers are not provided there and, therefore, we are not out of kilter.

The Minister made a remarkable comment in passing. He said the GSOC is "swamped" and I am sure he did not say that lightly. It is, therefore, extraordinary that it should have that many cases in front of it, even if some are mischievous. All the commission is saying is that it wants the same instruments available to it as the Garda.

I assure Deputy Byrne that nobody is trying to distract from the focus. I published the Garda surveillance Bill on which the legislation is modelled. This is the way legislation is dealt with. He must be a diligent watcher of the monitor in his office if he knows that this is the most contentious issue because one certainly would not know it from the brevity of his infrequent visits to the committee. He should not lecture us on what is most contentious in the Bill.

I welcome the legislation. The focus is to ensure compliance with the European Convention on Human Rights and to allow the Garda to comply with the convention in carrying out its duties while also giving officers the legal powers to carry out their duties in gathering evidence. I tabled a number of amendments, some of which would add to the powers they have or make them more practical.

We discussed this issue on Committee Stage and while the Minister dismissed the point raised about the Northern Ireland police ombudsman, he did not deny that under the Act governing the independent police compliance commission in Britain, certain of its officers are prescribed as being capable of authorising surveillance under section 30 of the regulation on investigatory powers. I do not know how often that power has been used, if at all.

Given what we now know occurred in Donegal and given other incidents where members of the Garda Síochána have been found guilty, often following investigation by their own colleagues who caught them in the act, we know gardaí have been found guilty of crimes that carry a sentence of more than five years. Whether they got that sentence was up to the court. We know from the Morris tribunal that gardaí were involved in fabricating evidence, interfering with witnesses, assaults and the manufacture and planting of explosives. We also know of cases where gardaí were involved with drug smugglers, fraud, organised crime and major gangs. This is a fact of life.

Obviously, the Garda Síochána Ombudsman Commission would not be involved in all such incidents, because that is the job of the Garda Síochána. However, if I or any other member of society went in the first instance to the Garda Síochána Ombudsman Commission to complain about a garda who was not carrying out his or her duty, the commission would be duty bound to investigate that complaint, because the complaint would be about the garda in question. For example, if I made an allegation of treason against a garda, the commission would have to investigate that, but the investigation would be very difficult because the commission operates from the outside in.

One of the powers that might help the Garda Síochána Ombudsman Commission, especially in a case where the commission believed there was an organised group involved within the Garda Síochána — as there was in Donegal — would be to have the same power as the members of the Defence Forces or members of the Revenue Commission to carry out surveillance. This is not a power that is given lightly to any organisation and that is the reason we suggest giving it to a body set up by this House that has rules and regulations in terms of how it carries out its investigations. Restrictions in the Bill would also apply to the Garda Síochána Ombudsman Commission, which would mean the commission would have to justify its action to a court and ensure it was proportional and likely to be successful.

This is the most contentious proposal we have put forward. We agree with the thrust of the Bill and have welcomed it. We are not making the Bill a contentious one; the Minister is doing that by not accepting any amendment, which is a pity.

Amendment put.
The Dáil divided: Tá, 63; Níl, 69.

  • Bannon, James.
  • Barrett, Seán.
  • Behan, Joe.
  • Broughan, Thomas P.
  • Bruton, Richard.
  • Burke, Ulick.
  • Burton, Joan.
  • Byrne, Catherine.
  • Clune, Deirdre.
  • Connaughton, Paul.
  • Coonan, Noel J.
  • Costello, Joe.
  • Crawford, Seymour.
  • Creighton, Lucinda.
  • D’Arcy, Michael.
  • Deasy, John.
  • Deenihan, Jimmy.
  • Durkan, Bernard J.
  • English, Damien.
  • Enright, Olwyn.
  • Feighan, Frank.
  • Ferris, Martin.
  • Flanagan, Charles.
  • Flanagan, Terence.
  • Gilmore, Eamon.
  • Hayes, Brian.
  • Hayes, Tom.
  • Higgins, Michael D.
  • Hogan, Phil.
  • Kehoe, Paul.
  • Kenny, Enda.
  • Lee, George.
  • Lynch, Ciarán.
  • McCormack, Pádraic.
  • McEntee, Shane.
  • McGinley, Dinny.
  • McGrath, Finian.
  • McHugh, Joe.
  • McManus, Liz.
  • Mitchell, Olivia.
  • Neville, Dan.
  • Noonan, Michael.
  • Ó Caoláin, Caoimhghín.
  • Ó Snodaigh, Aengus.
  • O’Donnell, Kieran.
  • O’Dowd, Fergus.
  • O’Keeffe, Jim.
  • O’Mahony, John.
  • O’Shea, Brian.
  • O’Sullivan, Jan.
  • Penrose, Willie.
  • Rabbitte, Pat.
  • Reilly, James.
  • Ring, Michael.
  • Shatter, Alan.
  • Sheehan, P. J.
  • Stagg, Emmet.
  • Stanton, David.
  • Timmins, Billy.
  • Tuffy, Joanna.
  • Upton, Mary.
  • Varadkar, Leo.
  • Wall, Jack.

Níl

  • Ahern, Dermot.
  • Ahern, Michael.
  • Ahern, Noel.
  • Andrews, Barry.
  • Andrews, Chris.
  • Ardagh, Seán.
  • Aylward, Bobby.
  • Blaney, Niall.
  • Brady, Áine.
  • Brady, Cyprian.
  • Brady, Johnny.
  • Browne, John.
  • Byrne, Thomas.
  • Calleary, Dara.
  • Carey, Pat.
  • Collins, Niall.
  • Conlon, Margaret.
  • Connick, Seán.
  • Cowen, Brian.
  • Cregan, John.
  • Cullen, Martin.
  • Curran, John.
  • Devins, Jimmy.
  • Dooley, Timmy.
  • Finneran, Michael.
  • Fitzpatrick, Michael.
  • Fleming, Seán.
  • Flynn, Beverley.
  • Gogarty, Paul.
  • Grealish, Noel.
  • Hanafin, Mary.
  • Haughey, Seán.
  • Healy-Rae, Jackie.
  • Kenneally, Brendan.
  • Kennedy, Michael.
  • Killeen, Tony.
  • Kirk, Seamus.
  • Kitt, Tom.
  • Lenihan, Brian.
  • Lenihan, Conor.
  • McEllistrim, Thomas.
  • McGrath, Mattie.
  • McGrath, Michael.
  • McGuinness, John.
  • Mansergh, Martin.
  • Martin, Micheál.
  • Moloney, John.
  • Moynihan, Michael.
  • Nolan, M. J.
  • Ó Cuív, Éamon.
  • Ó Fearghaíl, Seán.
  • O’Brien, Darragh.
  • O’Connor, Charlie.
  • O’Dea, Willie.
  • O’Flynn, Noel.
  • O’Hanlon, Rory.
  • O’Keeffe, Batt.
  • O’Rourke, Mary.
  • O’Sullivan, Christy.
  • Power, Seán.
  • Roche, Dick.
  • Ryan, Eamon.
  • Sargent, Trevor.
  • Scanlon, Eamon.
  • Smith, Brendan.
  • Treacy, Noel.
  • Wallace, Mary.
  • White, Mary Alexandra.
  • Woods, Michael.
Tellers: Tá, Deputies Aengus Ó Snodaigh and Paul Kehoe; Níl, Deputies Pat Carey and John Cregan.
Amendment declared lost.
Bill recommitted in respect of amendment No. 7.

I move amendment No. 7:

In page 5, between lines 22 and 23, to insert the following:

"(3) An authorisation or approval under this Act may not be issued or granted in respect of an activity that would constitute an interception within the meaning of the Act of 1993.".

This amendment makes clear that an authorisation or approval under this Act may not be given in respect of an activity that would constitute an interception within the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993, which provides for interception of telecommunications by ministerial order. The amendment, in effect, puts beyond doubt the fact that the surveillance legislation may not be used for the purpose of interception, as envisaged by the 1993 Act.

Amendment agreed to.
Bill reported with amendment.

Amendment No. 8 arises out of Committee Stage proceedings and has already been discussed.

I move amendment No. 8:

In page 5, line 35, after "Síochána," to insert the following:

"an officer of an Garda Síochána Ombudsman Commission,".

Amendment put and declared lost.

Amendment No. 9 arises out of Committee Stage and has already been discussed with amendment No. 4.

I move amendment No. 9:

In page 5, line 37, after "surveillance" to insert ", including by means of a tracking device,".

Amendment, by leave, withdrawn.

Amendment No. 10 arises out of Committee Stage proceedings. Amendments Nos. 10, 16, 46, 49 and 56 are related and will be discussed together.

I move amendment No. 10:

In page 6, to delete lines 8 and 9.

This is an amendment I tabled on Committee Stage. The power referred to in this case is that the surveillance being sought to be authorised is necessary for the purpose of maintaining the security of the State. The amendment proposes the deletion of those words. This is vague and does not add to the Bill. Most of subsections (a) and (b) would cover all eventualities. The related amendments in this section, amendments Nos. 16, 46, 49 and 56, which are all in my name, concern the same issue, namely, that the proposals are vague. If we put forward such proposals, we need to be much more specific in what is proposed with regard to the security of the State so we do not duplicate what is in subsections (a) and (b). Anything that would undermine the security of the State would, I presume, be an arrestable offence which would be covered under subsection (a) or (b), which state that surveillance is authorised for the purpose of preventing the commission of arrestable offences. I believe most, if not all, of the issues which subsection (c) attempts to capture are captured under subsections (a) and (b).

I could not accept the amendment in any shape or form. The Deputy is trying to remove any reference to "the security of the State" right across the Bill, whether it is in regard to authorisation for surveillance under section 4, for the granting of an approval under section 7, as a reason not to publish matters contained in a report under section 12 or with regard to disclosure of information under sections 13 to 15.

The Garda Síochána has a distinct and somewhat unusual role in that most other states have separate police agencies. In our system, the Garda Síochána has the dual function of investigation of crime and the protection of the security of the State in its widest form. To exclude that from the consideration of the ability of the Garda, the Defence Forces and the Revenue Commissioners to deal with crimes affecting the security of the State would reduce the effectiveness of gardaí in defending this State against an attack in whatever shape or form it would happen. I could not accede to the removal of the reference to "the security of the State" in a number of sections because it is a core function of the Garda Síochána and to accept the amendment would restrict gardaí in regard to normal crime as well as issues of protecting the State against national and international terrorism and other crimes. Therefore, I cannot accept the amendment.

I agree with the Minister. This country does not have an MI5 or MI6 and the Garda Síochána carries out the intelligence functions as well as the policing functions of the State. Although there is a minor intelligence unit in the Army, by and large, what was traditionally known as the special branch or the security intelligence unit of the Garda Síochána carries out these functions. It is appropriate to have reference to "the security of the State" in new provisions of surveillance being given to the Garda.

I am not sure of the intention of the amendment. However, were the amendment to be accepted by the House, it would seriously weaken the legislation and would be a grave omission. The Fine Gael party is supportive of what the Minister has said on this amendment.

The intention in these amendments is not to undermine the security of the State. In amendment No. 46, "the security of the State" is substituted by "current or future criminal prosecutions". The Bill seeks to ensure surveillance for the purpose of gaining criminal prosecutions against those who are carrying out crime or likely to do so. I believe the term "the security of the State" is too loose and the intention is to delete it and to allow for all arrestable crimes to be covered either by section 4(1)(a) or 4(1)(b) in the context of amendment No. 10, which we are discussing at present, and of the other amendments.

I will not press the amendment as it is not that big an issue but we should in law try to have descriptive terms. Where terms such as "the security of the State" are being used, we need to explain in greater detail what is involved and not duplicate the reasoning for the surveillance. The reason for the surveillance in this instance is to get the information required to bring about a successful prosecution, which is catered for at section 4(1)(a) and 4(1)(b). As I noted, the substitution in amendment No. 46 of the term “the security of the State” with the term “current or future criminal prosecutions” would cover this and mean the Garda Síochána could do its job, gain prosecutions and ensure the information is gathered.

Amendment, by leave, withdrawn.
Amendment No. 11 not moved.

Amendments No. 12 and 14 are related and may be discussed together.

I move amendment No. 12:

In page 6, to delete lines 44 and 45 and substitute the following:

5.—(1) An application under section 4 for an authorisation and under section 6 for a variation or renewal of an authorisation—

(a) shall be made ex parte and shall be heard otherwise than in public, and

(b) may be made to a judge assigned to any district court district.

I indicated on Committee Stage that I would introduce amendments in regard to the issuing of authorisations for surveillance by the District Court. These amendments allow an application for a surveillance authorisation, under section 5 of the Bill, to be made to a District Court judge in any District Court district. The application will be valid in all parts of the State.

In general, applications of this nature are made to the District Court in the district in which the subject of the application is resident or is located. The amendment to subsection (1), however, makes it clear that an application for an authorisation to carry out surveillance can be made in any District Court district. This is to address the fact that, in may cases, a proposed surveillance operation will involve a group of subjects — for example, a group of persons or vehicles — who are resident or located in more than one District Court district or who cannot be said to be resident or located in any given district.

The second amendment, the insertion of a new subsection (9), provides that an authorisation issued by a judge of the District Court will have effect, not only in the district to which the District Court judge is assigned and in which the authorisation issued, but also in any other part of the State. This is particularly important given that the subjects of surveillance, both persons and objects, will, by their very nature, usually be mobile and therefore capable of moving between District Court districts. Provision for flexibility in the judicial authorisation process will ensure the legislation is practical from an operational point of view.

I commend the amendments to the House.

Debate adjourned.