This Bill regulates the exercise by the Minister for Justice of his power to authorise the interception of postal packets and telecommunications messages. For brevity I shall refer to postal packets as letters and to telecommunications messages as telephone calls, though the former include, for example, parcels and the latter include, for example, telegrams and telex messages.
The Bill provides that the purposes — and the only purposes — for which the Minister may authorise interceptions shall be those of criminal investigation and the security of the State. It also sets out in detail the procedure that must be followed before an interception can be authorised, and it introduces two new provisions for controlling the exercise of the Minister's powers in this respect. One of these is for the operation of the Act to be kept under review by a judge of the High Court; the other is for the appointment of a legally qualified referee to investigate complaints of improper authorisation by the Minister.
I must first say something as to the justification for the system of authorised interceptions. The system embodies the reconciliation of two important principles. The first is the privacy of correspondence and telephone calls; the second is the need to combat crime and subversion.
Little needs to be said as to the importance of preserving the privacy of communications. If you post a letter, you expect it to be delivered unopened to your correspondent; if you make a telephone call, you do not usually want third parties to listen to it. Indeed, it is not too much to say that it is one of the features of life in a free country that people should be able to write to other people, or speak to them on the telephone, without their letters or telephone calls being intercepted. Interception of letters or telephone calls, except under lawful authority, is an offence under sections 84 and 98, respectively, of the Postal and Telecommunications Services Act, 1983.
However, it has always been recognised that the importance of combating serious crime of subversive activities is so great that it should prevail, in strictly limited circumstances, over the principle of privacy. For example, the gardaí may have information that a kidnapping has been planned or that a large quantity of dangerous drugs, or of arms and explosives, is about to be imported or moved, and there may be good reason to believe that the final arrangements are going to be made by telephone calls between some of the persons involved. If the telephone calls could be listened to, this might provide a link in the investigations which would enable the crime to be prevented or detected. In fact, the European Court of Human Rights has accepted that and I quote, "the increase of crime and particularly the growth of organised crime, the increasing sophistication of criminals and the ease and speed with which they can move about have made telephone interception an indispenable tool in the investigation and prevention of serious crime".
It is because of the conflict between the need to preserve the privacy of postal and telephone communications in general and the need to allow them to be intercepted in particular circumstances that the system of interception under the authority of a warrant by the Minister for Justice has been established. The actual interceptions are carried out by the appropriate officials of An Post and Bord Telecom on foot of direction under section 110 of the 1983 Act, but in every case there must be a warrant by the Minister for Justice authorising the interception by reference to the address or telephone number in question. Thus the Minister has cast on him the disagreeable duty of deciding whether the need to combat crime or subversion obliges him to authorise the official opening of people's correspondence or eavesdropping on their telephone calls.
In order to reconcile the claims of privacy and the need to combat serious crime or subversion, successive Governments have laid down certain conditions which have to be fulfilled before the Minister for Justice may issue a warrant authorising an interception. Solemn assurances have been given to Dáil Éireann that these conditions will be adhered to. The primary condition has been that a warrant should be issued only when the Minister is satisfied that the interception is required for the prevention or detection of serious crime or for security purposes and that information for the purposes in question cannot be got in any other way, but it has also been an essential condition that warrants should be issued only on an application by the Commissioner of the Garda Síochána or the appropriate Army officer. I mention these matters in order to explain the safeguards under which the system of warrants is operated.
Apart from the intrinsic merits of placing our interception system on a statutory basis, it is also necessary to do so owing to the decision of the European Court of Human Rights in the case of Malone against the United Kingdom. The court held that the tapping of Malone's telephone was in violation of Article 8 of the European Convention on Human Rights in that the interference was not "in accordance with the law". In order to comply with that Convention, the conditions for the authorisation of interceptions should be laid down by law; it is not sufficient that they should be the subject of undertakings by the Executive.
The European Court of Human Rights held also in the Malone case that there had been a violation of Article 8 of the Convention in another respect. This was on account of the process known as "metering", which consists of the use of a device which registers the number dialled on a particular telephone and the time and duration on each call. This process was designed mainly for the purpose of ensuring that subscribers were correctly charged, investigating complaints and the like, but the Post Office did on occasion provide the police with information obtained from metering when this was necessary for police inquiries in relation to serious crime. The court held that the existence of the practice, unregulated by law, constituted a violation of Article 8.
There is one other provision of the European Convention on Human Rights, Article 13, that I should mention, because it, like Article 8, is directly relevant to the Bill. Article 13 reads as follows:
Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.
Malone submitted that no domestic remedy was available for the breaches of Article 8 of which he complained and that, consequently, there has also been a violation of Article 13. The court held that, having regard to its decision on Article 8, it was not necessary to rule on the issue of Article 13.
The present Bill takes full account of the requirements of the provisions of the Convention on Human Rights. First, it sets out in detail the conditions under which the power of the Minister for Justice to authorise interceptions is to be exercised and regulates the procedure for the issue of authorisations; as a result interceptions will be carried out only "in accordance with law" in the sense in which that phrase was interpreted by the court and, of course, only to the extent permitted by Article 8. Second, it ensures that information obtained from metering it not disclosed save as permitted by Article 8. Third, it provides for "an effective remedy before a national authority", as required by Article 13, for a person whose rights under Article 8 are violated.
I turn now to the provision of the Bill. There is a good deal of detailed explanation in the explanatory memorandum which was circulated with the Bill which I need not repeat. I shall take the sections in order, except that I shall refer to the more important of the definitions in section 1 when speaking of the provisions in which the expressions defined occur. Also, the Bill is similar in many respects to the Bill presented to the Dáil in 1985 but which was never debated and to the Private Members' Bill presented in 1990. There are differences; some of these are no more than drafting changes and some are made necessary by the passage of time. However, there are some substantive changes and I will explain the reasons for these when I come to the provisions in which the changes occur.
The only definition in section 1 to which I need refer at this point is that of "interception". This definition is fundamental to the Bill. Stated briefly, "interception" means opening a letter or listening to, or recording, a telephone call, except that in the case of a telephone call the definition will not apply in a case where either a party to the call has consented to the listening or recording.
Section 2, read with section 3, lays down the fundamental requirements of the Bill that interception of letters and telephone calls may take place only in accordance with an authorisation given by the Minister for Justice and that the only purposes for which the Minister may give an authorisation are those of criminal investigation or of the security of the State. The reason I said that section 2 had to be read with section 3 is that the actual interceptions will, as I said they are at present, be carried out by An Post or Bord Telecom, as the case may be, in accordance with directions by the Minister for Tourism, Transport and Communications. These directions are given under section 110 of the Postal and Telecommunications Services Act, 1983, and what section 3 of the present Bill does is to provide that a direction by that Minister, if it is one requiring an interception, shall be given or remain in force only if and for so long as there is in force an authorisation by the Minister for Justice applying to the interception. An authorisation by the Minister for Justice must be given by a written warrant signed by him except that in a case of exceptional urgency he may give it orally in the first instance, but in that case he must confirm it by a written warrant as soon as may be. As I have already mentioned, under the 1983 Act it is already a criminal offence for anybody, whatever his position, to carry out an interception that is not authorised as mentioned in the Act; and this will still be the case when the Bill is passed.
I stress the requirement that the only purposes for which an interception may be authorised will be those of criminal investigation or the security of the State. These are the same restrictions as have been established by governmental undertakings in the past. It is also important to note that under section 2 the power to authorise interceptions will be much more restrictive against the Executive than is required under the European Convention on Human Rights; for under Article 8 of the Convention interference with the right of privacy for correspondence is permitted if it is "necessary in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others." Thus of all the grounds for authorising interception on which the Convention permits governments to rely, we shall be relying on only two — national security and the prevention of crime.
Section 2 includes other provisions restricting the power of the Minister for Justice to issue a warrant. Read with sections 4 and 5 it restricts the cases in which warrants may be issued for the purpose of criminal investigation and the security of the State respectively; this restriction is that the Minister shall not give an authorisation unless he considers that the particular conditions laid down in sections 4 and 5 respectively stand fulfilled. Under section 2 the Minister must also consider that there has been no contravention of the procedure which under section 6 must be observed before he may issue the warrant. The warrant will have to include a positive statement that these requirements have been complied with. I shall speak of sections 4, 5 and 6 in a moment.
First, I will mention the other provisions of section 2. The warrant will specify the relevant postal address or telephone number; in the case of a postal address it will also limit the authorisation to particualr addresses unless the Minister considers that this would be prejudicial to the purposes of the proposed interception. A warrant will remain in force for a maximum period of three months but may be renewed for similar periods provided that the same conditions as justified the original issue are fulfilled. The Minister may, before deciding whether to issue or renew a warrant in a particular case or in a case of any particular class, consult the judge of the High Court who, as I mentioned at the beginning, will have the duty of keeping the operation of the legislation under review.
Section 4 sets out the conditions which the Minister for Justice must consider to stand fulfilled in order to justify him in issuing a warrant authorising interception for the purpose of criminal investigation. The offence or suspected offence being investigated must be a "serious offence" as defined in section 1. This means that it must fulfil both the following requirements. First, it must be an offence punishable with at least five years' imprisonment. Second, it must involve loss of human life, serious personal injury, serious loss of or damage to property, or a risk of this; or it must result, or be likely to result, in substantial financial gain; or the facts and circumstances must make the offence a specially serious one of its kind. The investigations already being undertaken must have failed, or be likely to fail, to produce, or to produce sufficiently quickly, the required information or evidence sufficient for the purpose of a prosecution, and there must be a reasonable prospect that the proposed interception will help to provide such information or evidence.
In the case of an offence apprehended but not committed, the last of the conditions I have mentioned will be that there is a reasonable prospect that the proposed interception will be of help in preventing the commission of the offence or in detecting it if it is committed. In addition to these conditions, it will also be necessary — and I stress this particularly — that the importance of obtaining the information or evidence concerned is in all the circumstances, and notwithstanding the importance of preserving the privacy of letters and telephone calls, sufficient to justify the interception.
Therefore, the Minister for Justice will have to take a considered decision, in each case, after balancing the claims of privacy for communications and those of criminal investigation, before deciding that the needs of criminal investigation must prevail. Only if he so decides will he have power to issue a warrant.
Section 5 sets out the conditions which the Minister for Justice must consider to stand fulfilled in order to justify him in issuing a warrant authorising interceptions in the interests of the security of the State. In this case the Minister must consider that "there are reasonable grounds for believing that particular activities that are endangering or likely to endanger the security of the State are being carried on or are proposed to be carried on". Moreover, the section requires that other conditions, similar to those that apply under section 4 in the case of warrants for the purpose of criminal investigation must, in the Minister's opinion, stand fulfilled.
Section 6 sets out the procedure that must be gone through before the Minister may issue a warrant authorising an interception. This is not a mere technical matter as procedural provisions sometimes are: on the contrary, it is vital to the legislation. The purpose of the procedure laid down in the section, which complements sections 4 and 5, is to secure that warrants are issued only in furtherance of investigations already in existence. Neither the Minister nor officials of his Department will be able to initiate the process leading to an interception. If the purpose of the proposed interception is that of criminal investigation, the process will have to be initiated by the Commissioner of the Garda Síochána. If the purpose is that of the security of the State, the process will have to be initiated by either the commissioner or the appropriate military officer of the rank of colonel or above designated by the Minister for Defence.
The commissioner or the designated officer will have to make an application in writing containing sufficient information to enable the Minister to determine whether the relevant conditions stand fulfilled. The application will be sent or given to an officer of the Department of Justice nominated by the Minister for the purposes of the Act. An application by the designated military officer will require to be accompanied by a supporting recommendation by the Minister for Defence.
The nominated officer of the Minister will consider the application and make a written submission to the Minister stating whether in his opinion the relevant conditions under the Act for the issue of a warrant stand fulfilled or, if not, then in what respects they fail to do so. The decision whether to issue a warrant will, of course, be that of the Minister himself. Section 6 formalises the procedure for application for warrants and for the rigorous scrutiny of such applications.
Section 7 provides a particular procedure for the ending of an authorisation for interception in a case where interceptions are no longer required for the purposes for which they were authorised. The Minister will, of course, be able to cancel a warrant at any time and, indeed, as I will mention in a moment, he will have a statutory duty to do so in certain circumstances. Section 7 provides for termination, without any action by the Minister, in a situation where the Commissioner of the Garda Síochána or the designated military officer considers that interceptions authorised by a warrant are no longer required. This may be because all the information wanted has already been obtained or because the interception is not producing information of sufficient value and is unlikely to do so. If the commissioner or the designated officer considers that the interception is no longer required, he will without delay inform the nominated officer of the Minister for Justice, that officer will without delay inform the person to whom the warrant is addressed and the warrant will then immediately cease to be in force. No formal cancellation by the Minister will be required. The procedure under the section will be another safeguard to ensure that interceptions are kept to the minimum necessary for the purpose for which the power is conferred.
I now come to the two wholly new provisions which, as I mentioned at the beginning, the Bill introduces for the purposes of controlling the exercise by the Minister of his power to authorise interceptions. The two new provisions are contained in sections 8 and 9. These sections serve quite different purposes. Section 8 provides for a judge to keep the operation of the Act generally under review, irrespective of any complaint by a member of the public as to how it is operated; section 9 provides a procedure under which a person who believes that his letters or telephone calls have been intercepted may have the matter investigated and may obtain redress if it is found that the interception, if it took place, was improperly authorised. I shall now describe the two procedures in more detail, prefacing my account with a reminder that the sections deal only with interceptions where there has been a warrant issued by the Minister. The sections are not concerned with illegal interceptions, which are a matter to be dealt with by the prosecuting authorities and the courts.
Section 8 provides that the Government shall designate a judge of the High Court to carry out the duty, if he accepts the invitation to do so from the President of the High Court, of keeping the operation of the Act under review and ascertaining whether its provisions are being complied with. The judge's duty will include that of reporting to the Taoiseach at intervals of not more than two years on the general operation of the Act and from time to time on any matters that the judge considers should be reported. The judge will have power to investigate any case in which an authorisation has been given. It will be for him to decide what numbers of cases he should investigate in order to determine whether the Act is being complied with. For the purpose of his functions he will have access to, and may inspect, any official documents relating to an authorisation or the application for it. Further, any person who was concerned in the giving of an authorisation or in the application for it, or has any information relevant to these matters, will be required to give to the judge, if requested by him, all the relevant information in his possession.
The result of these provisions will be that the judge will be able to select for investigation, whether at random or otherwise, any case in which an authorisation has been given, that he will be able to examine all the official documents relevant to the case and that he will be able to require any person to give him any information in his possession concerning the case. This means that the judge will be able to examine not only the documents, without exception, concerning the case in the Department of Justice but also all those in the possession of the Garda Síochána, the Department of Defence, An Post or Bord Telecom or any other official document that may be relevant to the investigation. He will thus be able to trace every warrant to its source, and no official or other person will be able to object on the ground of secrecy, confidentiality or any other ground to giving him any relevant information. So the whole process will be subject at all times to scrutiny by the judge. Under section 11 (1) all the official documents relevant to an authorisation or the application for it will have to be preserved for at least three years.
I mentioned that the designated judge will make reports to the Taoiseach. The Taoiseach will be required to cause copies of all these reports to be laid before each House of the Oireachtas. The reports will be laid in full except that, if the Taoiseach considers that the publication of any matter in a report would be prejudicial to the prevention or detection of crime or to the security of the State, he may exclude that matter from the copies of the report as laid, but before deciding to exclude any matter he will have to consult the designated judge, and every report when laid will have to be accompanied by a statement as to whether any matter has been excluded from it. Apart from these formal reports the designated judge will, if he thinks it desirable, be able to communicate with the Taoiseach or the Minister on any matter concerning interceptions.
There are three other important provisions designed to strengthen the supervisory role which the designated judge will play in relation to interceptions. First, section 8 (6) provides that, if the judge informs the Minister that he considers that a particular authorisation should not have been given or should, because of circumstances arising subsequently, be cancelled, or that it should not have been renewed, the Minister shall, as soon as may be, inform the Minister for Communications and shall then cancel the authorisation. Second, there is the provision in section 2 (7) that the Minister may consult the designated judge before deciding whether to give or renew an authorisation in any particular case or in a case of any particular class. Third, section 9 (6) gives the designated judge, in certain circumstances which I shall mention when I come to deal with section 9, the function of determining whether the Minister was right in considering that a particular offence was a serious offence as defined in section 1.
Before leaving section 8 I would like to mention the differences between it and the 1985 Bill. The reference to a judge of the Supreme Court has been deleted. On consideration it has been decided that it would be inappropriate for a judge of the Supreme Court to undertake these duties. Also in the Bill, the President of the High Court will invite, after consultation with the Minister, a High Court judge to undertake the duties specified in the section. If the judge accepts the invitation the Government will designate him for the purposes of the Act. It is more appropriate that the initial invitation come from the President of the High Court rather than the Government having regard to the president's duties in regard to the allocation of business among judges of the High Court. Having regard to the duties which would be imposed under section 8, it is the intention of the President of the High Court that the designated judge would not take part in criminal trials or appeals.
Sections 9 and 10, which are to some extent interlocked and which I must admit are complicated in places, are intended to secure two objects which in the nature of things cannot be easily reconciled — hence the complications. The first object is that, although the question whether an authorisation should be issued in a particular case must be for the Minister's decision, it is right that a person who believes that his letters or telephone calls have been intercepted and that the Minister was not justified by the Act in authorising the interception should be able to have the matter investigated and to obtain redress if this is the case. The second object which must be achieved is that of maintaining, as far as possible, the secrecy of interceptions. It is obvious that persons suspected of complicity in crime or subversive activities should not be able merely by instituting legal proceedings to discover whether their communications have been intercepted. If this were possible, the whole purpose of authorising interceptions — that of combating crime and subversion — would be frustrated.
Briefly, the solution adopted by the Bill is to provide that a breach of the provisions of the Act will not enable a person affected to take proceedings in the courts, except for a cause of action that is an infringement of a constitutional right to privacy. Instead, he will be able to have the matter investigated by a legally qualified complaints referee equipped with all the necessary powers, including power to quash the authorisation and award compensation to the complainant.
Senators will notice a significant difference between section 9 (1) in the 1985 Bill and section 9 (1) in the present Bill. Since the 1985 was prepared the High Court has held that the unenumerated personal rights guaranteed by the Constitution include a right to privacy in respect of telephone conversations and the right to hold such conversations without deliberate, conscious and unjustified interference and intrusion by servants of the State. The court said that the right to privacy was not an unqualified right. Its exercise might be restricted by the constitutional rights of others and was subject to the requirements of the common good and to public order and morality.
I have been advised that, in the light of that decision, there would be a risk of a successful constitutional challenge to the Bill if it were enacted including section 9 (1) of the 1985 Bill which sought to preclude a cause of action for a breach of the provisions of the Act. I have, therefore, amended section 9 (1) so as to make that provision inapplicable to a cause of action where such a breach also constitutes a breach of an individual's constitutional rights.
Section 9 also sets up the office of complaints referee. In the 1985 Bill the complaints referee procedure was provided for as an alternative to a cause of action in a court for a breach of a provision of the Act. Even though, as I just mentioned, an action for such a breach where it also constitutes a breach of a constitutional right will be possible, I propose nevertheless to retain the complaints referee procedure as a simple, inexpensive and easily availed of remedy which will be open to aggrieved persons as an additional safeguard.
The holder of the office of complaints referee will be a judge of the Circuit or District Court or a practising barrister or solicitor of not less than ten years' standing. I need not go into the details as to his tenure of office except to say that he will hold office for a term of five years and will be eligible for re-appointment and that, while he may resign at any time, he may be removed only for stated misbehaviour or incapacity and upon resolutions passed by both Houses of the Oireachtas calling for his removal. The conditions as to when the referee may be removed from office will thus be similar to the conditions for the removal of a judge from judicial office, so the referee will be wholly independent in the exercise of his office.
Any person who believes that a letter sent to or by him, or a telephone call made to or by him, has been intercepted after the commencement of the Act in the course of its transmission will be able to apply to the complaints referee for an investigation. The referee, unless the complaint appears to him to be frivolous and vexatious, will then investigate whether there was a relevant authorisation in force at the material time.
If the referee concludes that there was no relevant authorisation in force at the material time, then he will simply give notice in writing to the complainant that there was no contravention of the Act and that will be the end of the matter. As I have explained, the referee will be concerned only with breaches of the Act and if he finds there was no authorisation under the Act there will be no occasion for him to acquire whether there was an unauthorised interception because, if there was no authorisation, there was no breach of the Act. To require the referee, in a case where there was no warrant, to go on to inquire whether there was an interception would saddle him with the functions of criminal investigation because, as I have pointed out, the interception would be an offence.
If, on the other hand, the referee concludes that there was an authorisation in force at the material time, then he will have the important task of investigating whether there was a contravention of any of the relevant provisions of the Act in relation to the authorisation. This means that the referee will have to investigate whether the authorisation was lawfully issued, whether the application for it was made and dealt with in the required manner, whether interceptions were continued in contravention of the Act after the appropriate authority had reported that they were no longer required and whether the Minister failed to cancel an authorisation after the designated judge had informed him that in his opinion it should not have been issued or renewed or should be cancelled.
If the referee concludes that there was a contravention such as I have mentioned, he will notify the applicant in writing of his conclusion and make a report of his findings to the Taoiseach. He will also have extensive powers to order redress for the applicant. He will have power to quash the authorisation and direct the destruction of all copies of the communications intercepted pursuant to the authorisation; and owing to the definition of "copy" in section 1, such a direction will apply also to any transcript, extract or summary of a communication or any tape on which it is recorded and to any record of the identities of the parties to the communication, for example, an envelope in which an intercepted letter was sent.
Further, the referee will have power to recommend that the applicant should be paid a specified sum by way of compensation for the wrong done to him in having had his communications intercepted, and the Minister will be required by the section to pay the compensation recommended. Any notification to the applicant or report to the Taoiseach will have to state the effect of any order made by the referee such as I have mentioned.
Section 9 includes a special provision — this is in subsection (6) — in relation to the question whether, in the case of an authorisation for the purpose of criminal investigation, the offence in question is a "serious offence" within the definition of that expression to which I referred earlier. The Minister will not be empowered to give an authorisation unless he considers that the offence is a serious one, that is to say, it will be for the Minister, after considering the facts and circumstances, to make a judgment as to whether this is the case. It is an essential feature of the scheme that the Minister should be entrusted with the duty of making the judgment. However, subsection (6) provides a special safeguard in order to enable a person whose communications have been intercepted to have the advantage of an independent judgment on the question whether the offence in question was a serious offence.
If the referee considers that, although there was no contravention of the relevant provisions, nevertheless, in spite of the Minister's opinion, the offence in question was not in fact a serious one then he will refer the question whether the offence was a serious one to the designated judge for his determination. If the designated judge agrees with the referee that the offence in question was not a serious offence, the referee will act as if he had concluded that there had been a contravention of the relevant provisions of the Act; and this will include the power to make a binding recommendation that the applicant should be paid compensation. If the designated judge disagrees with the referee, that is to say, if he agrees with the Minister's opinion that the offence was a serious one, the referee will comply, in accordance with the scheme of the section, give notice in writing to the applicant that there was no contravention of a relevant provision of the Act; again he will not say whether there was an authorisation or an interception.
Like the designated judge under section 8, the referee will have access to all the official documents relating to a relevant authorisation and the application for it and be able to inspect the documents; and again, as in the case of an investigation by the designated judge, all persons who were concerned in, or have information relevant to, the giving of an authorisation or the making of the application for it will be required to give the referee, on request by him, any information in their possession relating to the application or authorisation.
Section 10 of the Bill may be regarded as complementary to section 9 in the sense that it restricts the possibility of making use of legal proceedings, criminal or civil, for the purpose of discovering whether an authorisation of an interception has been issued or an application for an authorisation has been made. To impose such a restriction is in the Government's view clearly justified because of the need in the national interest to protect the secrecy of the system of interception and because the complaints procedure under section 9 fully protects members of the public from any possible abuse by the Minister of his powers under the Bill. Section 10 does not seek to exclude completely the possibility of raising in legal proceedings the question whether there has been an authorisation: its purpose and effect are to prevent such a question from being raised unnecessarily or prematurely.
Subsection (1) relates to criminal proceedings. It provides in effect that a private prosecution for an offence consisting of unlawful interception of a letter or telephone calls shall require the consent of the Director of Public Prosecutions. Without this restriction a person wanting to find out whether his telephone had been tapped might start a prosecution against an official of Bord Telecom or of the Department of Justice in the hope of compelling the accused to say whether there had been an interception and, if so, an authorisation. If an application were made to the director for his consent for a prosecution, the director would investigate the case, and would simply refuse his consent if there was no evidence of an offence whether there was an interception. The section would not prevent a person from issuing a summons for an offence, but he would not be able to take the matter beyond that stage and any remand without getting the director's consent.
Subsection (2) relates to civil proceedings. It applies to a case where a person might bring an action in respect of an interception which, if it took place and was not legally justified, would have amounted to one of the offences of unlawful interception in respect of which the consent of the Director of Public Prosecutions for a criminal prosecution would be required by subsection (1). The effect of subsection (2), subject to an exception, is that if any such civil proceedings are taken, the question whether there was in fact an interception will be determined before any question can be raised as to whether there was an authorisation.
Accordingly, unless and until it is determined that there was an interception, no person who from his official duties might be concerned in, or have knowledge concerning, authorisations will be permitted to give any evidence, or be asked any question, that would tend to show that an authorisation was or was not given or that an application for an authorisation was or was not made or that proposals or steps for that purpose were or were not made or taken, nor will the defence be permitted to make any disclosure or allegation to this effect in the action before it is determined that there was an interception.
If this preliminary inquiry fails to show that the interception complained of occurred, then the action will, of course, fail, but if it is determined that the interception did occur, then the action will proceed and the result will depend on whether the interception was justified on the ground that there was an authorisation by the Minister or for some other reason. The Court will, on the application of any party to the proceedings, allow any amendment to the pleadings that may be necessary in order that the question whether there was an authorisation may be determined; this is necessary because, as I said, the defence will have been prohibited from raising this question before it was determined that there was, in fact, an interception.
Subsection (3) provides another safeguard against attempts to use legal proceedings for the purpose of discovering whether, for example, an authorisation has been given. The subsection provides that no person shall be compellable in any proceedings to give any evidence or information to a court or tribunal or any person which shows or tends to show that an authorisation was or was not given or that an application for an authorisation was or was not made or to be made. This will apply to proceedings of any kind and not only to proceedings directly related to interceptions. The subsection will not prevent a person from giving the evidence or information voluntarily. Whether an official possessing the information gives it voluntarily will be a matter between him and the service to which he belongs. There will be three exceptions to the rule of non-compellability under subsection (3). First, it will not apply in criminal proceedings for an offence of unlawful interception. Second, it will not apply to evidence that a person has been convicted of such an offence. Third, the information will have to be given on request to the designated judge or the complaints referee.
Although a person will in general not be compellable to give evidence or information such as I have referred to with regard to an authorisation or the application for one, a certificate signed by a person authorised by the Minister and giving the information in question will be admissible, under subsection (5), as evidence in any legal proceedings in which evidence of the facts stated in it is admissible. Therefore if, for example, a person was prosecuted for an unlawful interception, the fact that there was no authorisation in respect of the interception could be improved by means of the certificate without the need to call formal evidence to this effect. There will, of course, be no obligation on the Minister to give a certificate, but he would naturally do so in a proper case in which evidence of the matter that would be included in the certificate could have been given orally.
Section 11 provides that all the official documents relating to an authorisation and the application for it must be retained for a period of at least three years after the authorisation ceases to be in force. This requirment will apply, for example, to documents in the possession of the Garda Síochána, An Post or Bord Telecom as well as those in the possession of the Department of Justice. The documents might be required by the designated judge or the complaints referee for the purposes of their functions under the Act. Section 11 will not apply to copies of material which have been intercepted. Under section 12 these will have to be destroyed as soon as their retention is no longer necessary.
Section 12 provides extra safeguards for the benefit of persons whose communications may have been intercepted. It requires the Minister to ensure that arrangements exist to limit to the minimum necessary the disclosure of the fact that an authorisation has been given and the contents of any communication that has been intercepted. The arrangements will also secure that copies of communications that have been intercepted shall not be made to a greater extent than is necessary and shall be destroyed as soon as their retention is no longer necessary. For these purposes "necessary" will mean "necessary for the prevention or detection of serious offences or in the interests of the security of the State". The adequacy of the arrangements made by the Minister for these purposes will be among the matters that will be subject to investigation by the designated judge under section 8, and the judge will, of course, under that section, have full power to inspect all relevant official documents and to question all persons concerned.
Section 13 makes a number of amendments to the Postal and Telecommunications Services Act, 1983. These are mostly technical and the only one that calls for particular mention is that contained in subsection (2). It relates to the practice known as "metering" which, as I said earlier, consists of the mechanical recording of the making and duration of telephone calls. Subsection (2) inserts a new subsection in section 98 of the 1983 Postal and Telecommunications Act. The new subsection makes it an offence for a person employed by Bord Telecom to disclose information such as I have mentioned to anybody else unless the disclosure is made in the circumstances specified in the subsection. Disclosure will be permissible if it is made at the request or with the consent of the subscriber; for the prevention or detection of crime or for the purpose of criminal proceedings; in the interest of the security of the State; in pursuance of an order of a court, or in the course of the employee's duty as such. I have added another circumstance to the original list, i.e., for the purpose of civil proceedings in any court. This is to put beyond doubt that Bord Telecom could disclose information obtained by "metering" in, say, any legal proceedings, relating to the number of telephone calls made.
Section 14 repeals section 18 of the Official Secrets Act, 1963. The latter section empowers the Minister by warrant to require the production to him of telegrams sent to or received from places outside the State. The section reproduced a section in the British Official Secrets Act, 1920, which applied to the State. The power is very wide, the only condition being that the Minister should be of the opinion that production is "expedient in the interest of the State". The power under the section has never been used so far as is remembered in the Department of Justice, and the Bill is a convenient occasion to abolish it.
Should Senators wish me to explain further any particular provisions of the Bill, I would be happy to do so in concluding. I now look forward to a useful and positive debate.
