The meeting has been convened for the purpose of consideration of the Criminal Justice (Surveillance) Bill 2009. I welcome the Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, and his officials. Related correspondence was circulated to members. Item No. 83 is relevant to the Bill and copies have been made available. A grouping list has been circulated. Before we get into the meat of the Bill, the Minister wants to make a comment.
Criminal Justice (Surveillance) Bill 2009: Committee Stage.
Before the Minister does that and while I do not want to interrupt him, what of the Spent Convictions Bill 2007? It is a non-contentious Bill which was introduced by the Minister of State and broadly agreed to by everyone in the House. Is there any prospect of us enacting it?
It has completed Second Stage.
Yes, but is there any prospect of it——
I do not know. I have left it to the Minister of State, Deputy Barry Andrews, to bring it forward. It is his Bill.
The Minister might ask him to let us know.
We are considering a number of amendments for Report Stage and in consultation with the Attorney General on section 5 which deals with authorisations. Subject to his advice, I am considering the inclusion of two related amendments on authorisations issued by a District Court. The first would make it clear that an application for an authorisation would not require to be made to the District Court in the district in which the subject of the proposed surveillance was resident or situated. This is to address the fact that, in many cases, the proposed surveillance operation might involve a group of persons or vehicles resident or situated in several districts or subjects who could not be said to be resident or situated in a given district.
The second amendment would make it clear that an authorisation issued by a judge might have effect outside the District Court district to which the judge was assigned. This is to address the fact that the subjects of the surveillance such as vessels or persons might be mobile by nature and capable of moving between districts. These amendments would greatly add to the efficiency of the operation of the authorisation in assisting the Garda Síochána and other agencies involved in surveillance.
Section 9 refers to the retention of materials relating to applications and reports. Subject to consultation with other agencies involved, I am considering replacing the term "Minister" in section 9(5) with the term "relevant Minister". It may be more appropriate that the Minister for Defence or the Minister for Finance makes a decision in respect of retention of documents relevant to the investigations for which they had responsibility.
Section 10 concerns the restrictions on disclosure of the existence of authorisations and other documents. In consultation with the Office of the Attorney General I am considering the insertion of an enabling provision that would allow the disclosure or non-disclosure to a person that he or she has been the subject of surveillance in certain circumstances after the authorities are satisfied that secrecy is no longer required and once the disclosure would not prejudice the proposed surveillance or impinge on security in any way.
Section 12 provides that review of operation of the Act will be by a designated judge. I am considering the inclusion of a provision that will allow the designated judge, in the performance of his or her functions, to refer a matter to the complaints referee for investigation. Section 13 deals with confidentiality of information. I propose to re-examine the list of authorised persons in section 13(4), with a view to ensuring that disclosure of information is permissible in the context of providing mutual legal assistance and that it can be made to law enforcement, Revenue or defence personnel or their equivalents in other jurisdictions. We will consider these issues for Report Stage.
Notwithstanding the recordings procedures, perhaps the Minister can circulate the note as soon as possible.
Has the preponderance of that been prompted by representations from the Garda Síochána? Substantive issues have been raised by the Minister for the first time. I wonder where the information is coming from at this late stage.
It is mainly from the Attorney General, although the Garda Síochána has been involved in the consideration of the Bill. This is particularly true in respect of the restrictions on disclosure of the existence of authorisation and other documents in compliance with the European Court of Justice rulings on confidentiality and disclosure.
We will now consider the Bill proper.
I move amendment No. 1:
In page 4, line 29, after "of" to insert "chief".
Having regard to the fact that the content of the Bill contains far-reaching measures of a type not enshrined in our law before, and given the powers vested in the Garda Síochána, I would have thought it prudent that the superior officer, upon whom considerable powers will be vested, should be a person not below the rank of chief superintendent rather than superintendent. If the Minister is not prepared to accept this amendment, perhaps he will reassure members of the committee that the ranking officership of a superintendent would be appropriate in the circumstances.
The Bill governs the use of surveillance not only by the Garda Síochána but also by members of the Defence Forces and the Revenue Commissioners. It is intended that members at the equivalent level of authority in each of the State agencies would apply for court authorisations to carry out surveillance and to grant approval to both in cases of urgency and for the use of tracking devices. In some cases a member of the rank of superintendent may be directly involved in a surveillance operation. It is envisaged that another member of the force will be designated to undertake the surveillance by the superintendent to whom the authorisation is issued or who grants the approval.
In the case of the Garda Síochána it is not necessary or appropriate to provide that it must be an officer of higher rank that makes an application or grants approval, nor do I think it is practical. The competence and experience attached to the superintendent rank means that this is the appropriate grade. The equivalent grades, colonel and principal officer in the Defence Forces and Revenue Commissioners, are dealing with authorisation and approval. A Garda superintendent is of sufficiently high authority while sufficiently close to the operational side of work in preventing, detecting and investigating crime to undertake this role. I do not accept the amendment.
Having regard to what the Minister said, I withdraw the amendment
I move amendment No. 2:
In page 5, line 1, after "devices" to insert the following:
"and includes any entry upon or interference with private property for the purpose of installing or operating surveillance devices".
Similar legislation in the United Kingdom expressly regulates interference with private property. The Minister does not propose to do that in this Bill. The purpose of the Bill is primarily to regulate surveillance, as opposed to supervising it. In that regard there is a lacuna in the Bill. While it regulates the act of surveillance and, to some extent, entry onto private property, it does not regulate interference with private property, for example, making a hole in the wall for the purposes of installing a device. Comparable legislation in the United Kingdom makes this provision. This point recurs a few times in the Bill and I do not want to return to it each time my amendment comes up. We must be clear and must make express provision for this interference with private property. As the Bill stands, it does not do so.
We are discussing definitions and, in this case, the meaning of surveillance. I missed a trenchantly critical article inThe Irish Times on this Bill because I was engaged in different activities on the day of publication. It was written by a retired detective chief superintendent, Mr. John O’Brien. His analysis shows his positive disposition to the notion of providing for this type of surveillance in primary legislation. However, he is immensely critical of the Bill as produced. He refers to his years of experience having been tempered by the tendency of the Department of Justice, Equality and Law Reform and successive Ministers to spin the latest anti-gangland measures. He refers to the definition of surveillance as being far too wide:
It adopts a generalist approach by seeking to apply this law to the entire population and not directly to criminal organisations as defined in the Criminal Justice Act 2006. It can be construed to include all surveillance activity, including intelligence and evidential material. The threats emanate from specific and defined sources, criminal gangs and subversive organisations. The threats do not emanate from the population as a whole and arguably the population as a whole should not be subjected to these measures.
I have not had an opportunity to judge how much weight one should put on that, but I have just heard the Minister say in response to Deputy Flanagan's amendment that he is satisfied that a garda of the rank of superintendent is appropriate in the circumstances surrounding the Bill. This man is a retired detective chief superintendent who, I gather, was concerned with this issue and has long experience of it. I am concerned that he should feel it necessary to write in such trenchant terms a critical article on the Bill that has been put together.
To deal with the amendment, entry to a premises to install a device does not amount to surveillance; it is the procedure which facilitates surveillance and enables it to take place. The power to enter a place for the purpose of initiating or carrying out surveillance, withdrawing or placing a surveillance or tracking device, is provided for within the sections which deal with the authorisation or approval of such activity, namely, sections 5(7), 7(5) and 8(5). Section 1 deals with the definition of "place" which includes a dwelling or other building.
The authorisation or approval may authorise the Garda Síochána, the Defence Forces or the Revenue Commissioners to effect entry by use of reasonable force. For this reason, the provisions in respect of entry have been included in the core of the Bill and as such are subject to all the safeguards which the legislation offers such as any conditions considered appropriate by the judicial authority or senior officer in respect of the surveillance, the complaints procedure in section 11, the judicial oversight process in section 12 and the confidentiality of information provisions in section 13. I do not believe the procedures for entry to carry out surveillance should be included in the definition of surveillance; they are correctly and more appropriately placed in the authorisation and approval provisions of the Bill and for that reason I do not propose to accept the amendment.
I read the article to which Deputy Rabbitte referred and to a large extent the person looked at this issue in the context of the practicality of the day-to-day operations of surveillance from his own knowledge. The Bill deals strictly with the ability of the Garda or the Director of Public Prosecutions to use it in an evidential way. He has made one or two reasonable points which we will consider, but with regard to the main point made by the Deputy based on the article that this applies to the wider population, not to gangland crime, I never said the Bill was only to deal with gangland crime; it is to deal with all serious crime. It will help in tackling gangland crime, but there are other operations conducted by the Garda, the Defence Forces and the Revenue Commissioners and, by a combination of all three, do not relate to gangland crime solely. The Deputy suggested the Bill should be targeted at particular elements of crime, but I do not accept this. This is a new departure, but the measure will put on a statutory footing the ability of the Garda and the prosecution service to bring forth evidence in support of attempts to secure prosecutions.
As I understood it, what was argued for——
We are getting away from the amendment.
We are not; this is very pertinent to the amendment.
The definition of criminal organisations within the meaning of the Criminal Justice Act 2006 was spoken. The Minister states he intends to use it generally for serious crime; surely, it is the same whether we refer to "gangland", "criminal organisations", "serious criminals" or "subversive organisations". Former detective chief superintendent John O'Brien was not speaking about the general population but about serious criminals by definition. I would have thought that the input of a Garda officer of that rank who has had direct experience would be a cause for at least an examination in the Department. If he says we are introducing legislation that is likely to be counterproductive — it is not going too far to summarise his 13 criticisms of the Bill as indicating it would be counterproductive — is it not time to examine the claims he is making?
I am not saying that. As I stated, he has made points which we will examine. However, he is considering it from an operational point of view. He refers to surveillance data which is not defined in the Bill. To return to the point on the applicability——
Is there a point of view other than the operational one? If it is not operationally effective and efficient, what is the point?
I accept that, but what we are dealing with primarily is the ability to use the information in court. We are not going into the finer detail of the operational aspects of surveillance.
To come to the Deputy's point on the applicability of this measure, it relates to arrestable offences which are mentioned in section 1. Under section 2 of the Criminal Law Act 1997 "arrestable offence" means an offence for which a person may be punished by imprisonment for a term of five years or by a more severe penalty and includes an attempt to commit any such offence. It does not only deal with gangland crime.
That is very serious. By "gangland crime" does the Minister mean instances where gangs are killing each other?
No, I mean gangland crime as defined in the 2006 and 2007 legislation and the particular offences related to what is termed an "organised gang". The Deputy is aware of the difficulty we have in proving what is or is not a gang. If it were restricted to those particular offences only, the Garda would not be able to use surveillance anywhere other than in very restricted circumstances.
To go back to the amendment, the Minister stated with regard to interfering with private property and expressly regulating the right to interfere in these limited ways with private property that it is elsewhere included in the Bill. He instanced section 5(7) which deals with authorisation and stated it gave the express approval that I sought in the amendment. The last line of section 5(7) mentions that the person conducting the authorised surveillance withdraws the authorised surveillance device without the consent of a person who owns or is in charge of the place. That is why I tabled three successive amendments on essentially the same point; we can dispose of them now and the Chairman can handle the procedure for doing so, as I do not want to return to them. I tabled amendment No. 8 to deal with the very point the Minister is making.
That amendment states:
In page 7, subsection (7), line 20, after "place" to insert the following:
"and may authorise interference with private property for the purpose of installing or operating such surveillance device without the consent of the owner of such property".
A similar issue arises in that it is not expressly provided for in section 5(7) or elsewhere in the Bill. I am merely arguing for clarity on these issues.
I will ask the Parliamentary Counsel to review the matter before Report Stage but my advice is that it is already addressed in the existing provisions, particularly because the definition of "place" in section 1 includes a dwelling or other building. I acknowledge the Deputy's point that it is not expressly authorised but we believe the Bill as it stands makes sufficient provision for it.
How stands the amendment?
If the Minister agrees to review the matter before Report Stage, I am happy to withdraw it.
I move amendment No. 3:
In page 5, between lines 1 and 2, to insert the following:
"(c) the targeted and repeated photographing of persons for the purposes of monitoring or recording the movements, activities and communications of such persons.”.
This matter arises in the context of correspondence committee members have received from the Irish Human Rights Commission, which examined the Bill and forwarded to us its observations on the definition of "surveillance". Paragraphs (a) and (b) provide for the monitoring, observing, listening and recording of places or things by or with the assistance of surveillance devices. However, the Minister’s definition may not be tight enough to withstand a challenge based on existing case law on privacy and surveillance.
The definition of "surveillance device" does not at present specify electronic mail or telephone appliances even though one would think these are obvious candidates for inclusion. My amendment attempts to remove doubt by specifying targeted or repeated surveillance. The Minister will be aware of the tests applied by the courts to the justification of interference with the rights of individuals. Such a justification is arrived at and maintained by showing that surveillance or tracking is conducted in pursuit of legitimate aims. We should specifically define surveillance as targeted and repeated monitoring rather than merely observing or listening. I am anxious to hear the Minister's views on whether his definition of surveillance and surveillance devices is sufficiently robust to withstand challenge.
I am confident that the Bill as it stands will resist challenges but that is not to say they will not be made. The Office of the Attorney General has considered carefully the provisions because it undoubtedly represents a significant departure. In regard to the Deputy's amendment, the Bill is specifically concerned with the carrying out of surveillance by or with the assistance of surveillance devices. The text as currently drafted excludes from the definition of surveillance devices a camera to the extent that it is used to take photographs of any person, place or thing to which the public have access. The proposed amendment is inconsistent with this exclusion. The taking of photographs is not the type of surveillance with which this Bill is concerned. It is not intended to interfere with the type of surveillance which forms part of ordinary policing. For this reason, the Bill provides definitions of surveillance and surveillance devices which exclude ordinary surveillance activities.
I support Deputy Charles Flanagan on this amendment. I find the current definition of "surveillance device" strange given the widespread use of CCTV in public places. If, for example, the Garda wishes to use CCTV in a surveillance operation, a specific mechanism should be included in the Bill to facilitate this. The Bill as it stands appears to exclude such activities, however. Everybody wants to ensure the Bill becomes a useful tool for the Garda. It is therefore strange that the Minister claims there is no need for the amendment proposed by Deputy Flanagan. The greater the clarity, the fewer the opportunities for abuse. Gardaí would also find it easier to understand their limitations in terms of surveillance operations.
Deputy Rabbitte referred to a newspaper article by the retired chief superintendent, John O'Brien, who wrote that he is uncertain whether telephones and electronic mail are covered by the Bill. He believes several of the measures proposed may in fact hamper current surveillance practices in respect of e-mail and telephones. It behoves us to define precisely what is covered, therefore. I would have thought that telephone calls should be covered but I am not sure if the Bill makes specific provision in this regard. Similarly, we do not yet have the relentless and targeted surveillance which the Minister believes is required. We should, therefore, specify in our definitions the role of targeting and repeated photography.
The Minister said that much of the Bill is designed to target criminal organisations, as defined in the 2006 Act. Again, retired Chief Superintendent O'Brien reminds us that this Bill is directed at everyone, not just organised criminal gangsters. This leads me to suggest we should be especially careful about our definition of surveillance. My amendment would not take from the Bill, nor am I convinced that the Bill specifically deals with the point I raise.
I cannot put it any further. This is not designed to include the normal type of targeted surveillance. It is a completely different issue. It relates to the use of electronic means. I think the Deputy said this targeted type of surveillance is not included in the normal type of surveillance gardaí do, but he is wrong. Gardaí do it on an ongoing basis. This provision under discussion specifically relates to the use of electronic devices for surveillance and the ability to use that evidence in court. It is very restricted. To open it up to including cameras and therefore requiring authorisation would hamper the ordinary, day-to-day work of gardaí. I do not know how long Chief Superintendent O'Brien is retired but I hazard a guess he would have some operational difficulties. This Bill was drafted in consultation with the people working at the coalface.
I will not press the amendment.
The interception of postal packages and telecommunications in that legislation is not an issue in this. Given that this is a 1993 Act, we probably need to re-examine this. The Act includes acts which "consists of the listening or attempted listening to, or the recording or attempted recording, by any means, in the course of its transmission, of a telecommunications message, other than such listening or recording, or such an attempt, where either the person on whose behalf the message is transmitted or the person intended to receive the message has consented to the listening or recording". We are happy that the interception of Internet mail such as gmail is covered but we are examining it to see if we can tighten it up.
I will propose an amendment on Report Stage to include tracking devices. Surveillance and tracking devices are two separate things. I want to give further explanation to surveillance devices. After "with the assistance of surveillance devices" I want to include "tracking devices". The other amendment I would suggest is in line with some of the suggestions from Mr. Justice Frederick Morris that we specify that surveillance includes the use of officers or informants to monitor or record the movements, activities and communications of a subject in a targeted, ongoing and repeated way.
I understand what the Minister is saying, that we do not want to hamper the normal, day-to-day operations of the Garda Síochána, but if it is on a continuous basis there must be some guidelines or mechanisms in place to ensure it does not amount to harassment or wrong-doing by the Garda. The recommendation by the Morris tribunal which would cover this was 16(29), in which Mr. Justice Morris said it was wrong that gardaí should be recording persons, including their colleagues and senior officers, at will, or contemplating carrying out covert surveillance using electronic means without any statutory guidance or regulation. The same could be true of informants. I will seek to insert an amendment on Report Stage on this.
This Bill is designed for the use of electronic devices. It is a fairly siloed Bill, so to speak. It is not about the broad surveillance activity of gardaí.
Electronic devices are carried by a person and specifically sent in to record the activity of people on an ongoing basis and the same can be true——
Again, it is subject to authorisation. I understood Deputy Ó Snodaigh referred to continuous normal policing surveillance and that he was trying to include it in this Bill, which would include it in an authorisation process, to which I could not agree.
I am trying not to include that. If there is an ongoing, continuous operation targeting individuals I am trying to insert an authorisation for informants or gardaí to use the surveillance devices on themselves rather than placing them in the individuals' homes, cars or wherever. The same argument can be made about cameras, which are electronic devices as well. I will argue it out on Report Stage.
I move amendment No. 4:
In page 5, between lines 22 and 23, to insert the following subsection:
"(3) For the avoidance of doubt, it is hereby declared that this Act does not apply to the following:
(a) the use of a closed circuit television system in a Garda Síochána station;
(b) the recording by electronic or other similar means under section 27 of the Criminal Justice Act 1984 of the questioning of a person by members of the Garda Síochána at Garda Síochána stations or elsewhere in connection with the investigation of offences;
(c) the recording by electronic or other similar means of any evidence given, or statement made, by a person for the purposes of any court proceedings.”.
This amendment inserts a new subsection (3) into section 2, which provides that the provisions of the Bill do not apply to closed circuit television, CCTV, systems in Garda stations, the electronic recording of the questioning of persons by the Garda Síochána under section 27 of the Criminal Justice Act 1984, or electronic recording of any evidence given or statements made for the purpose of court proceedings. The use of CCTV in Garda stations, electronic recording of questioning or evidence given in the context of investigations is not surveillance for the purposes of the Bill and as such it is not intended that gardaí would require judicial authorisation under the Bill. However, the use of CCTV in Garda stations and the electronic recording of interviews could be interpreted as coming within the definition of surveillance. Subsection 3 is being included, therefore, to make it clear that these activities are excluded from the scope of the Bill.
I do not have a difficulty with that.
On section 2, I mentioned on Second Stage that we should examine including officers of the Garda Síochána Ombudsman Commission, who might also be required to carry out some type of surveillance, and asked whether that was allowed. Another question is whether the other organs of the State which carry out surveillance to a degree are covered. I am not sure whether the Department of Social and Family Affairs is covered. According to reports it has been quite successful recently. I do not know whether other jurisdictions such as city councils and fisheries protection officers have carried out surveillance. Are they specifically excluded and, therefore, cannot carry out surveillance or will their activities remain unregulated?
This Bill refers to three State organisations, the Garda Síochána, Defence Forces and Revenue Commissioners. It does not apply to the Department of Social and Family Affairs or any other State agency. That does not mean the Department of Social and Family Affairs does not carry out surveillance, but it is not electronic surveillance or else it is not authorised. That is not to say the Department does not check up on people's activities. I return to the general point that this is a fairly siloed Bill that relates to use of electronic devices and the authorisation and use of intelligence gleaned from those in evidence.
Should we not use the opportunity to regulate the use of electronic surveillance devices by Departments? I do not know the extent to which they use them; perhaps they are not used at all.
I would hazard a guess that they are not used at all but I do not know. I was Minister for Social, Community and Family Affairs for five years but I did not come across it anyway.
I repeat that I will look to insert a reference to an "officer of the Garda Síochána Ombudsman Commission" in this section on Report Stage.
I move amendment No. 5:
In page 6, subsection (1), line 32, to delete "may" and substitute "shall".
This is a technical amendment to clarify that an application for an authorisation shall, rather than may, be madeex parte and shall be heard otherwise than in public. It is imperative that knowledge of applications made for authorisation for surveillance should be limited to as few persons as is necessary. It is for this reason that the application shall be ex parte and heard otherwise than in public.
I move amendment No. 6:
In page 6, subsection (4), line 49, after "by" to insert "legal professional".
This amendment may be superfluous but I ask the Minister what he means in the section where it states "The judge shall not issue an authorisation if he or she is satisfied that the surveillance being sought to be authorised is likely to relate primarily to communications protected by privilege". Is the Minister satisfied with the level of privilege or what is meant in these circumstances by privilege?
The use of the term "privilege" generally refers to legal professional privilege but to define the term narrowly as "legal professional" privilege would fail to capture cases where other types of privilege might apply, such as confessions to a priest. It has been upheld by the courts that this concept is not a legal professional privilege. For example, discussions at Cabinet are governed by privilege but the use of the term "privilege" will not extend to the concepts of privilege such as journalistic communications or communications between spouses. I am of the view that to limit privilege to "legal professional" would give rise to an infringement of privacy of communications in circumstances that have been recognised in law as being privileged. For this reason I do not consider the amendment as suggested appropriate.
I accept what the Minister has said, provided he is satisfied with the issue. I am not sure of the effect of civil partnership legislation, for example, on communications between husband and wife but as long as we are satisfied the definition is inclusive, I will withdraw the amendment.
Amendment Nos. 7 and 10 are cognate and will be discussed together.
I move amendment No. 7:
In page 7, subsection (7), line 18, to delete "or withdrawing" and substitute "and withdrawing".
The text of sections 5(7) and 7(5) are currently drafted to provide for an authorisation for a superior officer of the Garda Síochána, Defence Forces and Revenue Commissioners to enter any place for the purpose of initiating or carrying out the authorised surveillance or withdrawing the authorised surveillance device. The use of the conjunction "or" could be interpreted as meaning that one authorisation is required for initiating the surveillance and that a separate authorisation is required for the withdrawal of the device. This is not the intention. An authorisation for a senior officer to enter a place to initiate or carry out surveillance should also authorise the withdrawal of the surveillance device at the end of the specified period.
Amendments Nos. 8 and 15 are cognate and will be discussed together. We alluded to these already when discussing amendment No. 2.
I move amendment No. 8:
In page 7, subsection (7), line 20, after "place" to insert the following:
"and may authorise interference with private property for the purpose of installing or operating such surveillance device without the consent of the owner of such property".
I alluded to these when discussing amendment No. 2 and I accept the Minister's undertaking to consider if there is any merit to them between now and Report Stage.
With regard to section 5, Detective Chief Superintendent O'Brien stated that placing authorisations at the District Court level is unnecessarily indulgent and exposes a greater number to possible threats from criminal elements. What is the Minister's view on that?
What were the comments? I do not have the article in front of me, although I read it.
He states: "Placing authorisations at the District Court level is unnecessarily indulgent and it exposes a greater number to possible threats from the criminal elements."
He may have been speaking from a Garda perspective, where often attendance at the District Court may be unnecessarily indulgent, but I do not wish to interpret what he means.
Where else would they go for authorisation?
I presume he is talking about going to a higher level of court.
I would have thought he meant a lower level of court if he stated it was indulgent to go to the District Court. In other words, they should be doing it themselves.
That is what I thought.
Amendments Nos. 9 and 11 are cognate and will be discussed together.
I move amendment No. 9:
In page 7, between lines 34 and 35, to insert the following subsection:
"(3) Where an application for a renewal under this section has been made and the authorisation concerned would, but for this subsection, expire during the hearing of the application, it shall be deemed not to expire until the determination of the application.".
Section 6 provides for an application to be made for the variation or renewal of an authorisation already in place. Section 7(10) allows a superior officer, where it is believed surveillance should be extended beyond the 72-hour urgency period, to make an application for judicial authorisation to continue such surveillance. An application for renewal or extension under these sections must be made prior to the expiry of the authorisation. There is, however, no provision to address the position when the authorisation expires during the hearing for renewal.
These amendments are being included to remedy this issue and are based on similar provisions in the Criminal Justice Acts 2006 and 2007. They provide that where an application for renewal or an application to continue surveillance is made and the authorisation would have expired during the hearing of the application, the authorisation would be deemed not to have expired until the determination of the application.
I will be proposing an amendment to include a new subsection (3) stating "The information on oaths supporting the application shall include a copy of a written record of the approved concern, a summary of the results of the surveillance carried out and the reasons why varied or continued surveillance is required". This is an additional safeguard I will propose on Report Stage.
I move amendment No. 10:
In page 8, subsection (5), line 24, to delete "or withdrawing" and substitute "and withdrawing".
I move amendment No. 11:
In page 9, lines 1 to 6, to delete subsection (10) and substitute the following:
"(10) (a) If the superior officer who approved the carrying out of surveillance believes on reasonable grounds that surveillance beyond the period of 72 hours is warranted, he or she shall, as soon as possible but in any case before the expiry of that period, make an application under section 4(4) for an authorisation to continue the surveillance.
(b) Where an application under section 4(4) has been made and the period referred to in paragraph (a) would, but for this paragraph, expire during the hearing of the application, it shall be deemed not to expire until the determination of the application.”.
I suggest the deletion of subsection (7) as it is vague. Paragraphs (a) and (b) would suffice in this case. Between lines 31 and 32 I suggest the insertion of new paragraphs which would cover the grounds on which approval is given. Less intrusive means were considered and determined to be insufficient. Efforts were made to secure an emergency judicial hearing.
This is to recognise the need for the Garda to be able to issue its own authorisations for surveillance in certain exceptional and urgent circumstances. In view of some of the concerns raised by Mr. Justice Morris in this regard, it is a big power and primary legislation must underpin it and provide sufficient safeguards. This is a suggestion for achieving this.
In addition, I suggest an insertion, after "hours" in line 48, to the effect that the superior officer will produce a written record of the variation and the reasons for same. Also in this section, I suggest that reference be inserted between lines 23 and 24 providing for the inclusion in all cases of the designated judge in the making of a report under subsection (11). As it stands, unless a complaint is made, there is no independent oversight of this significant Garda power. I will go further in this regard on Report Stage.
I have several other amendments which I can go through if the Chairman wishes.
No. The Deputy can move them on Report Stage.
I will move several amendments to ensure that the whole section is robust and that it contains safeguards to ensure we do not end up in circumstances such as those about which Mr. Justice Morris has criticised both the State and the Garda.
Amendments Nos. 12, 13, and 14 are cognate and No. 16 is related. These amendments may be discussed together.
I move amendment No. 12:
In page 9, subsection (1), line 29, to delete "superior officer" and substitute "Judge of the District Court".
Sections 7 and 8 are the core of the Bill in that we are dealing with the approval of surveillance activity and tracking devices without the necessity of seeking the sanction of a court. We must bear in mind the description of the retired former senior garda of placing of authorisations at the level of the district court as — what did he call it——
An unnecessary indulgence.
I would not agree with that; in fact, I would say the opposite. The powers we are giving to superior officers are wide-ranging. While I do not expect the Minister to accept my amendment, I am anxious that we receive guarantees that there will be appropriate safeguards. The superior officer may make the decision on surveillance and tracking devices without an element of objectivity. That is a significant encroachment on the liberties and rights of citizens. How do we safeguard the citizen if the superior officer from the Revenue Commissioners, the Defence Forces or the Garda Síochána is satisfied that the information upon which he or she is acting constitutes reasonable grounds for suspicion that an offence has been committed or is in the course of being committed? By removing this from the court we are in many respects removing objectivity. I ask the Minister to guarantee that the code of practice that accompanies this Bill in the form of a regulatory framework is robust and sufficiently strict that we can be satisfied as legislators that there is an element of objectivity, notwithstanding the removal of the role of the court.
We have seen, particularly in recent years, the enactment of criminal justice legislation that we are told is necessary, which I accept. Deputies on all sides of the House supported the recent legislative framework. However, the regulations often do not follow. Sometimes they do not follow at all, while sometimes it takes years. It is vital that the Minister give us assurances, with regard to authorisations under section 7 and applications for tracking devices under section 8, that before these come into effect a code of practice will be established so that everybody knows where we stand in terms of the rights of the citizen. These rights were vindicated to some extent at District Court level in so far as the judge had to satisfy him- or herself that there were reasonable grounds for suspicion. How do we ensure such a framework is still in existence, notwithstanding the subjectivity of the superior officer?
The Deputy is correct in that I cannot accept his amendments, which seek to make the use of tracking devices by the Garda Síochána subject to judicial authorisation rather than the system of approvals currently provided for in the Bill. The use of tracking devices is regarded as a less intrusive means of surveillance compared to others. Tracking devices are defined for the purpose of the Bill as devices to provide information on the location of a person, vehicle or thing, and thus only provide information on location, while other surveillance devices are much more intrusive, picking up voice communications or taking video records. The Bill seeks to achieve a balance between the necessity for fast action in placing these tracking devices and the provision of an effective regulatory framework for their use. While the tracking devices do not require judicial authorisation, they are subject to the oversight framework laid down in the Bill for surveillance devices. They are also subject to complaints procedures. According to section 8(3), the superior officer authorises the use of the tracking device "if he or she is satisfied that there are reasonable grounds for believing that an authorisation would be issued under section 5 and that the conditions specified in subsection (2) apply." In other words, he must be satisfied based on the same criteria as a judge would rely on when making an authorisation.
Tracking devices monitor the movement of persons, vehicles or things, and the opportunity and timing of their placement is critical if they are to be successfully used. A tracking device can be attached, for example, to a package that is suspected to be a drugs shipment as it arrives in port, or to a vehicle. In many cases its placement will be required at short notice; otherwise the opportunity to prevent or solve a crime would be lost because the vehicle or package may have moved on. As with approval of surveillance in cases of urgency, it is imperative that the Bill provide for an effective and practical system that can be used by the Garda Síochána which would not result in unnecessary delay while a court application is sought — a delay that might hinder or jeopardise an investigation. As a counterbalance, the Bill provides for a stringent system of control for the use of tracking devices, including rules on record keeping and reporting where such approval is given. Although the function of tracking devices as surveillance devices is somewhat limited, the timely use of a tracking device can be an effective tool in the armoury of both security and customs personnel.
I will not press the amendment if the effect of it were to make that part of the legislation weaken what the Minister attempts to do, but I wish he would give guarantees. The complaints procedure to which he refers is all very fine but is after the fact. A person may complain about a montage of photographs or that surveillance has been on a house or car or whatever, but it will have been there for some time. In many circumstances making a complaint after the fact may not meet the requirement of ensuring an element of fairness. Before any such decision is made there should be certain measures stronger than guidelines such as a regulatory framework which can be followed and strictly adhered to by superior officers in the Defence Forces, the Revenue Commissioners and the Garda Síochána.
The Deputy is referring to subsection (9) concerning a superior officer who approves the tracking device and must make a report as soon as possible afterwards and not later than seven days with regard to its use. He also must make that report to an assistant commissioner in the case of the Garda, and to equivalent persons in the case of the Defence Forces and the Revenue Commissioners. Again, the Minister can make regulations reducing the period from four months to shorter periods if evidence emerges that there is an overuse of these devices or an overly long use of them.
Subsection (9) is not exactly punitive. It states that, in any case, the superior officer "shall make [the] report ... not later than 7 days after its use has ended". I can understand why speed is of the essence and why it would be necessary to act with despatch and so on. In terms of the regulatory assurances Deputy Flanagan seeks, it seems reasonable that whatever protocol or otherwise accompanies this should be spelt out more clearly. Subsection (9) does not exactly do this: "A superior officer who approves the use of a tracking device under this section shall make a report as soon as possible and, in any case, not later than 7 days after its use has ended". Is that probably or possibly after four months? It is quite a long period, is it not?
It could be sooner depending on when the tracking device is removed. I do not see any merit in them having to report earlier than the period for which the tracking device is required. Again, I go back to the central point that the officer has to be satisfied there are reasonable grounds for believing the use of the tracking device is necessary according to the same criteria laid down by a judge for the authorisation of the surveillance device, as per section 5.
I may be wrong but I do not know of a definition in statutory form in any part of the criminal law code for what constitutes reasonable belief. Having regard to the fact that the court will have no involvement, the reasonable belief in question is entirely subjective.
It has to be. They are investigating crimes and must make a judgment. One cannot take that kind of judgment away from the operational side. They have to make that judgment.
There is no yardstick against which it is measured, is there?
Normally, reasonable belief is a matter for the third party to decide, the third party customarily being a judge or a court. In this case, the superior officer has to persuade himself or herself there are reasonable grounds——
One could say that about opinion evidence which has been used successfully and which we have been encouraged to use even more, especially by Fine Gael. People have been convicted on reasonable belief.
How stands the amendment?
People are not convicted by the person who arrests them.
It is a minor distinction but an important one.
It would be preferable if it were, of course. A Garda has a common law right to enter into property if he or she has a reasonable belief a crime is being committed. Gardaí have that non-statutory power and it is this very point that relates to them going onto aeroplanes at Shannon Airport. They have that inherent right to enter on private property, whether it is an aeroplane at Shannon or a house, if they believe a crime is being committed. To try to restrict them with regard to this would be to restrict them in their ordinary, day-to-day operation. It would make it impossible for them.
We know but this is different in so far as it is not a normal, day-to-day Garda operation. This is a power we are vesting now in the Garda Síochána of a type the force has not had.
I would not say that because we are not dealing with a greenfield situation. Who is to say gardaí are not using these powers? They are, if the truth be known.
If they are this is the first time it has had statutory authorisation.
We are regulating the devices and using them for evidence. If we were to accede to what the Deputy suggests, in effect we would restrict the existing operation of gardaí.
That is why I said at the outset that I am not pressing the amendments because I accept that doing so would seriously weaken the Bill in a way that I do not wish. I wish to ensure Deputy Ahern, as Minister for Justice, Equality and Law Reform, can give members and the citizens of this State guarantees there will be a regulatory framework and an accepted protocol that is clear in respect of the manner in which authorisations can be achieved by superior officers and that there are strict protocols which are known and accepted.
It would be the intention of the Garda to put together such protocols arising from the passing of this legislation. As I said, we have given the statutory power to the superior officer based on the same criteria that must be used by a judge in respect of surveillance devices.
I withdraw the amendment having regard to what the Minister said.
I give indication that I shall propose a number of amendments to this section. I have a question with regard to one aspect. In all the other authorisations three months was mentioned but four months are allowed for a tracking device. Is there a reason for the difference? Usually one tries to standardise terms.
Four months was chosen because that period is less intrusive. It was chosen in the context of discussions with the Garda. I do not believe it to be an unreasonable period. There is an opportunity for the Minister to shorten that period by regulation.
For example, the authorisation in section 6(1)(b) is three months and in section 5(8) it is three months.
They refer to a surveillance device not a tracking device.
I understand, but normally there is a standardised——
The tracking devices are probably more commonly used and would be used in a prolonged circumstance, whereas surveillance circumstances may often be more restricted in terms of time.
Amendments Nos. 17 and 18 are related and will be discussed together.
I move amendment No. 17:
In page 11, subsection (3), line 25, to delete "information and".
This is a technical amendment which provides for the deletion of the reference to "information". The Office of the Parliamentary Counsel has recommended deletion on the basis that the reference to documents in the sentence is sufficient because it is already quite broadly defined in section 1.
Amendment No. 18 inserts two new subsections into section 9. Section 9(4) provides for the destruction of all documents obtained through surveillance, including applications for authorisations and documents supporting those applications, the written records of approval, reports made in respect of the granting of the approvals and any documents obtained as a result of surveillance carried out or tracking devices used.
Section 9(5) is a corollary of section 9(4) and provides that the Minister may authorise in writing the retention of any documents referred to in this section where he or she consider it is necessary to do so, having regard to the interests of the protection of the privacy and other rights of persons, the security of the State, the aims of preventing the commission and detection of arrestable offences, and the in interests of justice. The amendments are included to increase the protections provided in the Bill by ensuring all documentation obtained during the surveillance operation will be destroyed once the three-year expiry period has ended or once it is no longer required for the prosecution or appeal for which it was relevant. This reflects an emerging principle in human rights law that material or data obtained should be destroyed after a certain period. The inclusion of section 9(5) is to cover exceptional situations where it may be necessary to retain documentation for longer than the specified periods.
I move amendment No. 18:
In page 11, between lines 33 and 34, to insert the following subsections:
"(4) Subject tosubsection (5), the documents referred to in subsections (1) to (3) shall be destroyed as soon as practicable after they are no longer required to be retained under those subsections.
(5) The Minister may authorise in writing the retention of any of the documents referred to in this section where he or she considers it necessary to do so having regard to—
(a) the interests of the protection of the privacy and other rights of persons,
(b) the security of the State,
(c) the aims of preventing the commission of, and detecting, arrestable offences, and
(d) the interests of justice.”.
I suggest the inclusion of the Garda Síochána Ombudsman Commission for the investigation of civil cases to ensure it is covered in cases where there is a need to retain material to allow the commission to carry out its investigations. This has been prompted by the recent case of James Sheehan who had his file from the Garda Complaints Board destroyed while he was in the process of proceeding with a High Court application against the State. Part of the evidence he was presenting was to have been the——
The Deputy should not name people.
I have the permission of James Sheehan to put the case on the record.
It does not matter whether the Deputy has permission.
I have named him in the House already. In any case, it is essential surveillance records are not destroyed to the detriment of any Garda Síochána Ombudsman Commission investigation or the likelihood of a civil suit. There is also a need to ensure the material is not retained for too long. While I welcome the fact that it will not be retained, that aspect should be taken into account before documents are destroyed.
The section states the relevant Minister "may make regulations". I have argued previously, especially in such instances, for the phrase "shall make regulations". I also believe Dáil approval should be sought in such regulations.
Amendments Nos. 19 and 20 are related and will be discussed together.
I move amendment No. 19:
In page 13, subsection (10), lines 25 and 26, to delete "application" and substitute "investigation".
Section 11 provides for a complaints procedure. The first amendment is technical and replaces the "application" with "investigation" on the basis that investigation is a more appropriate term in this context as the documents are being furnished to the referee in the context of an investigation.
The second amendment adds to safeguards included in the Bill. As currently drafted, section 11 allows the referee to investigate possible contravention where a person who believes himself to be the subject of surveillance makes an application to the referee or where a superior officer makes or receives a report in respect of the carrying out of surveillance under section 7 or section 8 and makes an application to the referee. There is no provision which allows the referee to investigate possible contravention on his or her own initiative and the amendment is included to remedy this situation. It provides for the inclusion of subsection (11) which allows the referee on his or her own initiative to investigate whether there has been a contravention. Where a contravention is discovered the provisions of the complaints process in regard to notification of the applicant will apply for the purposes of rectification and remedy. The amendment provides an essential aspect to the complaints procedure.
For clarity, amendment No. 20 is a substitute amendment. Its import is the same but the substitution is for grammatical purposes.
I move amendment No. 20:
In page 13, between lines 29 and 30, to insert the following subsection:
"(11) The Referee may, on his or her own initiative, also investigate whether there has been a relevant contravention and this section (other thansubsection (7)) shall apply to such an investigation as if the references to “the applicant” in subsections (4) and (6) were to “the person who was the subject of the authorisation or approval”.”.
I have proposed several amendments to try to ensure the referee has the powers required to carry out his or her job to the fullest extent.
Amendments Nos. 21 and 22 are related and will be discussed together.
I move amendment No. 21:
In page 15, subsection (1), line 23, to delete "Evidence" and substitute "Material".
The purpose of section 14 is to allow surveillance information to be admitted in evidence. By using "Evidence obtained" rather than "Material obtained" the section suggests the material must meet the threshold of existing evidence law before it can be admitted. Is this not a higher hurdle than we ought to have? The use of "material" would make it more certain that the courts would admit such material in trials. Why should section 14 not read, "Material obtained as a result of surveillance ... is admissible"? It is a matter for the court to decide whether it is decisive in terms of whatever ruling the court may make. Is "evidence" a higher hurdle than necessary?
The first amendment proposes to substitute the word "material" for evidence. The difficulty with this proposal is that "evidence" rather than "material" has been used elsewhere throughout the Bill. For example, section 4 on authorisation is applied for the purposes of obtaining "evidence" and for the purposes of proceedings in respect of an offence. Reference is also made to obtaining "evidence" in sections 7 and 8. However, the Deputy's proposal has led me to examine the text and to introduce the second amendment. The Office of the Parliamentary Counsel is of the view that, rather than change the reference to "evidence" at the beginning of the paragraph, the end of the sentence should be amended to read "may be admitted as evidence in criminal proceedings".
The Office of the Parliamentary Counsel has advised that this would be a more standard provision which better conveys that the normal rules of evidence apply. I therefore propose to leave the reference to evidence as it stands, but amend the end of the sentence to read "may be admitted as evidence in criminal proceedings". For this reason I thank the Deputy for his suggestion and ask him to withdraw his proposal in favour of the alternative wording.
I will do that. Am I to take it that the section now reads "evidence obtained as a result of surveillance carried out under an authorisation or under an approval granted in accordance with section 7 or 8 may be admitted as evidence"? That is not very elegant.
That is in criminal proceedings.
It reads "may be admitted as evidence in criminal proceedings". It still presumes——
If we were to accede to the Deputy's request, subsection 1 would read "material obtained as a result of surveillance carried out under the authorisation is admissible in criminal proceedings". As I said, we have used the word "evidence". It is better to leave the word "evidence" in place so the sentence reads "evidence obtained as a result of surveillance carried out under an authorisation is admissible as evidence in criminal proceedings".
I move amendment No. 22:
In page 15, subsection (1), line 25, to delete "is admissible" and substitute "may be admitted as evidence".
I move amendment No. 23:
In page 15, subsection (3)(a), line 35, after “concerned,” to insert the following:
"or carried out on foot of a purported authorisation or approval the validity of which has been tainted by an error or omission".
As it stands, section 14 fails to make any provision as to what is to happen to the admissibility of evidence obtained on foot of an authorisation which turns out to be invalid as a result of an error or omission. The section, as it stands, deals only with errors on the face of a valid authorisation or failure to implement a valid authorisation. My amendment would seek to give the court the same discretion to deal with the fruits of an invalid authorisation.
Deputy Rabbitte's proposal would significantly widen the ability to use evidence obtained under an authorisation where there has been an error. We have tried to restrict it to errors on the face of the authorisation so that there is no sloppy work regarding investigations.
Section 14 is the core provision of the Bill. It deals with the admissibility of evidence in the narrow and very specific context of evidence obtained by means of surveillance. Subsection(3)(a) provides that such evidence, notwithstanding any error or omission on the face of the authorisation or written record of approval, can be admissible in certain clearly defined circumstances where the court decides the error or omission was inadvertent and that the information or document ought to be admitted in the interest of justice. In other words, the error is made on the basic document.
Many summonses have been thrown out over the years because there have been inadvertent errors on the face of them. The Deputy's proposal seeks to provide that information obtained as a result of surveillance which is carried out on foot of a purported authorisation or approval, the validity of which has been tainted by an error or omission, should also be admissible in criminal proceedings.
The reference to a purported authorisation or approval and the fact that the validity of the authorisation or approval has been tainted by an error or omission seems to suggest the authorisation or approval has been invalidated in some way or is illegal, but that the information obtained on foot of such authorisation would still be admissible.
This is not the intention of the section. Information obtained from surveillance can only be admissible where a valid authorisation or approval has been granted. If there is, however, an error on the face of the authorisation or approval, and by this I mean a technical error, the court, when deciding on the admissibility of such evidence, will have regard to certain matters set out in the section, such as whether the error was serious or merely technical in nature, the nature of any right infringed, any circumstance of urgency, the possible prejudicial effects of the information and the probative value of same.
If, taking all of those factors into account, it is considered that the error or omission was inadvertent and that it would be in the interest of justice to do so, the court can decide to admit such evidence. The question of admitting evidence on foot of an invalid or tainted authorisation or approval does not arise. The provision is very clearly drafted and defined and I do not propose to accept the amendment.
I would like the opportunity to look at the Minister's reply before Report Stage.
The Deputy's amendment would widen the possibility of much more substantial errors being allowed.
I understand that.
Amendments Nos. 24 and 25 are cognate and will be discussed together.
I move amendment No. 24:
In page 15, subsection (3)(b), between lines 41 and 42, to insert the following:
"(i) the rights of the community and of the victim (if any) of the crime being investigated;".
I am seeking to insert a new subsection. In balancing rights, the key items to put into the balance are the rights of the community and the victims of crime. Clearly, where the court has discretion to allow or exclude evidence, the rights of the defendant must be considered. I accept that. However, the rights of society and, in particular, the innocent victim must also be considered. It is another safeguard that would strengthen rather than weaken the legislation.
The character of the Bill is a balancing exercise between defending the privacy rights of a person and protecting the rights of wider society in terms of its safety and well-being. From this perspective, the Bill must be cognisant of all the rights of all parties concerned.
I appreciate the Deputy's concern for the community and the victims of crime and, ultimately, this Bill will be part of our armoury in the fight against serious crime. However, in terms of constitutional and European convention rights, particularly those relating to privacy, we must be sure the Bill takes into account the rights of all parties.
In the context of the admissibility of evidence and where there has been an error or omission on the face of an authorisation approval, this amendment inserts a new paragraph (i) into section 14(3)(b). The amendment provides that the court should have particular regard to the rights of the community and the victim, if any, of the crime being investigated in determining whether evidence may be admitted.
Section 14(3)(b)(ii) requires the court to have particular regard to the nature of any right infringed by the obtaining of the information or documents concerned. It encompasses the matter contained in the amendment, while at the same time having regard to the wider issue. This is a more correct approach and one which is more in keeping with the spirit of the legislation.
Like the Deputy's previous proposal, the second of the amendments provides for the court to have regard to the rights of the community and the victim, if any, of a crime being investigated. Here, it would occur in circumstances where there has been a failure to comply with the requirement of the authorisation or approval concerned. The court must determine whether the action taken was in good faith and whether it is in the interests of justice to admit the evidence, having regard to certain matters.
I am of the view that this is also the case in paragraph (ii) of subsection (4)(b), which provides for the proper approach in this regard. I understand what the Deputy is trying to do. We will have another look at it. What he is trying to do is already catered for in section 14(3)(b)(ii).
In subsection (4)(b) I am making the same point. There would essentially be a new sub-paragraph (4)(b)(i). I ask the Minister to have a look at this prior to Report Stage and I will not press it now.
I move amendment No. 26:
In page 16, between lines 29 and 30, to insert the following subsection:
"(5) It shall be presumed, until the contrary is shown, that a surveillance device or tracking device used by a member of the Garda Síochána, a member of the Defence Forces or an officer of the Revenue Commissioners for the purposes referred to in this Act is a device capable of producing accurate information or material without the necessity of proving that the surveillance device or tracking device was in good working order.".
Section 14 is being amended by the insertion of a new subsection (5) which provides for a rebuttable presumption in relation to the fitness for purpose of the surveillance devices or tracking devices used. The subsection is being inserted in order to obviate the need for the Garda Síochána to have to continuously prove that the devices used were in good working order. The DPP has been consulted and is of the view that this is a useful provision. It is to provide for situations where a tracking device might bein situ for three months and the Garda would have to go into court and prove it continuously monitored its working ability.
I move amendment No. 27:
In page 17, subsection (4), line 19, to delete " "terror-linked activity" " and substitute" "terrorist-linked activity" ".
This is a technical amendment to correct a misprint in the Bill. The correct reference should be to "terrorist-linked activity" as is used in section 15 (2)(b) of the Bill and in the Criminal Justice (Terrorist Offences) Act 2005.
Deputies Rabbitte and Flanagan have opposed section 17.
It is a surprise to me and something I feel strongly about. I do not know why it is provided in the section that the Bill does not apply to the Garda Síochána Ombudsman Commission. I do not know whether that means the GSOC can conduct surveillance without authorisation or this is a deliberate narrowing of the Bill to exclude the GSOC. It proposes to amend section 98(5) of the Garda Síochána Act 2005 so that the provisions of this Bill will not extend to the GSOC. I find it all the more difficult to understand, given that the functions of the GSOC include the investigation of complaints concerning death or serious injury or matters of very considerable public interest. Why the Minister should seek to exclude the GSOC is a puzzle to me. I would like to hear what the Minister has to say about why this section is in the Bill.
I agree with Deputy Rabbitte. I eagerly await the response of the Minister, having regard to the fact that not so long ago we in this House established a body with independent oversight powers of an unprecedented nature. Is there now an attempt to be restrictive? I do not know why that might be the case. I will not say anything further until I hear the Minister's argument which might be compelling. I am sure the Minister has looked at other jurisdictions, particularly Northern Ireland. In setting up our Garda Síochána Ombudsman Commission, although we did not follow their example, we looked at other jurisdictions, one of which was Northern Ireland. The non-extension of this legislation to the GSOC requires an explanation of a type we have not heard to date and I ask the Minister to give it.
I support Deputies Flanagan and Rabbitte. I have already argued in favour of amendments to bring the GSOC under this Bill. It is strange that its activities, which could include surveillance of members of the public or of the Garda Síochána, are not covered by this, given the powers we gave the GSOC. I await the Minister's reply.
Under the Garda Síochána Act 2005 the investigative staff of the GSOC have all the powers of the Garda Síochána with the exception of the interception powers under the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993 and any provisions of the Offences against the State Acts 1939 and 1998. The decision taken at the time of the enactment of the Garda Síochána Act in 2005 was that it would be preferable to wait until the GSOC had gained more operational experience before considering the application of interception powers to it. It is my view that this provision should also apply in regard to surveillance powers under the Criminal Justice (Surveillance) Bill at this time. Section 17 of the Bill has, therefore, been included and amends section 98(5) of the Garda Síochána Act 2005 so the provision of the Criminal Justice (Surveillance) Bill do not apply to the GSOC.
The GSOC does have a role under this legislation. Section 11 of the Bill allows the complaints referee to refer a matter to the GSOC where he or she believes there has been a contravention of the Act by the Garda Síochána. As members are aware, the Criminal Justice (Surveillance) Bill is a very specific measure which is being brought forward specifically in the context of a robust response to serious crime. We had a debate earlier about the definition of serious crime. Further consideration of the future application of additional powers to officers of the GSOC will be undertaken in light of operational experience and in the context of an overall review of the efficiency and effectiveness of the commission and the adequacy of the functions assigned to it under the 2005 Act. I do not propose to accept the amendment.
That is not the compelling reply envisaged by Deputy Flanagan. The Minister is saying that the GSOC has not been functioning long enough for us to afford it this type of power. Given that the GSOC is involved in, for example, the investigation of arrestable offences as connected to the Garda Síochána itself, why should it not have this power? This is a weakening of the remit of the commission. We had this debate when the commission was born and ended up with something different from what we started out with. We did not envisage circumstances where powers such as these would be extended to the Garda Síochána and not to the commission itself. It puts the commission at a serious disadvantage. I cannot see the downside of giving it this power. There could only be an upside. There could even be a convergence of interest in matters being inquired into by the Garda Síochána and matters that might be uncovered by the GSOC in the course of its investigation of complaints referred to it. I cannot say the Minister's response is compelling and it does not persuade me that we should exclude the commission.
Again, it is not a narrowing because the ombudsman commission does not have specific power under the interception legislation in respect of postal packets and telecommunications. That decision was made just a couple of years ago. The Garda Síochána is somewhat different from most other police forces in western Europe and America as we have one police force which deals with the security of the State and also normal policing. When I attend the EU Council of Ministers meeting I am the only Minister who is attending in his own right and representing the whole justice family, whereas France has three different Ministers because it has three different systems of justice. Our police force has responsibility for the security of the State, the whole issue of terrorism, the threat from international terrorists as well as normal policing. That is why they have specific powers and are being given specific powers in regard to the interception of postal packets and telecommunications. This is an extension of that surveillance aspect. The Garda Síochána Ombudsman Commission does not have that power but has a specific remit to investigate complaints against the Garda whereas this legislation and the interception legislation of 1993 is specific in respect of serious crime but particularly targeted against terrorism and international terrorism. That is one of the reasons. The other is that the ombudsman commission is a relatively new body and has had to deal with a considerable number of complaints in its initial years and, to a certain extent, is struggling with them. There is a significant backlog but thankfully it has the resources and has five times the number of staff and a similar budget than the Garda Síochána Complaints Board. I am not saying I am ruling it out in the future; I would be prepared to review it. Having discussed the issue with my officials and given that we are still in discussions with the Garda Síochána Ombudsman Commission and the Garda Síochána on the issue of possible amendments to the ombudsman commission Act 2005 it is an issue we will look at in the future. I indicated this to the Deputy during Question Time when I referred to one of the reports of the ombudsman commission which indicated that some amendments are required. However, at this remove it would be an unnecessary extension of the remit of the Garda Síochána Ombudsman Commission, particularly in the context that it is there only to investigate complaints against the Garda, whereas this legislation deals with the investigation of serious crime by the Garda, not just ordinary policing, but also terrorist activities, international terrorism and, generally, the protection of the security of the State.
In this legislation we need to send out a clear message to criminals in the State as to what we are doing. We should not dilute that message by applying the provisions of the Bill to the ombudsman commission. The Garda has a job to do and it should be allowed do it. We cannot dilute that message. We need to give the Garda the necessary powers, confidence and unequivocal support it requires. The ombudsman commission has already done much good work obviously with the aid of the Garda. It is a necessary system but, at present, our main focus should be on tackling gangland crime, serious crime and terrorism, particularly in the city of Limerick. This legislation arose particularly in the context of gangland murders in parts of the country. We need to send out that unequivocal message, not a half-hearted message, to the Garda if this provision is to be applied to the Garda but as the Minister said it could be open for review in the future.
I have no problem with what Deputy Byrne has said. The unequivocal message should go out whether the criminals are in or out of uniform. We are trying to ensure that the Garda Síochána Ombudsman Commission has the ability to carry out investigations using surveillance. I presume this power would be used very rarely. If the Garda Síochána Ombudsman Commission was looking at serious wrongdoing and serious crime on a scale that led to the Morris tribunal it would be helpful if it had that power. The Minister said he will look at it in the future. There are mechanisms by which such powers can be made conditional by the Minister in the future but I am not one to promote that course of action too often. If there is a need, at a future date, for the Minister to authorise permission for the Garda Síochána Ombudsman Commission to have these powers that might be a mechanism or, alternatively, we could leave it until such time as the regulations are in place. The Garda Síochána Ombudsman Commission should have the powers, in case of an eventuality, so it is not hampered and does not have to approach the organisation it is investigating to get it to carry out the investigation on its behalf. If we do not include the Garda Síochána Ombudsman Commission, it will have to ask the Garda Síochána to carry out the surveillance on its behalf within the force. There would then be the possibility, in the event of serious crime, that it would leak to those involved in it and that they would not be brought to justice.
I thank the Minister for his reasoning. His main point is that the ombudsman commission is not that long in operation which does not go to the heart or the substance of the matter.
My point is that it does not have the remit. The Garda has a much broader remit.
The Minister has indicated his intention, in the not too distant future, to introduce legislative change, which the ombudsman commission has sought. I would be prepared to wait until we revisit the issue at that stage. However, I would be concerned if this legislation was out of line with what could be described as best practice or even good practice. I do not believe the Minister's objection is based on sound principle.
In looking at best practice, one is not comparing like with like when one compares other jurisdictions and the different types——
I would not compare ourselves with the North. There was controversy in the North recently where all intelligence gathering was taken from the PSNI and given to one of the organisations based in the UK. Deputy Ó Snodaigh may have a better handle on this than I do. The Garda Síochána has a very distinct and much broader role than the Garda Síochána Ombudsman Commission. What we are doing here is regulating what is already taking place in the Garda, the Defence Forces and — although I have no particular knowledge of this — the Revenue Commissioners, but in the context of drug enforcement and the multi-agency operation in the fight against drug importation I hazard a guess that the Revenue Commissioners are also involved with the Garda surveying electronically. What we are doing in this legislation is providing the statutory framework.
Given that under existing legislation the Garda Síochána Ombudsman Commission has the same common powers of entry, I suspect it does not have to have this specifically included in that it has the same powers of entry where it has a reasonable belief that a crime is being committed. I am not sure whether it is using these powers but would hazard a guess that it is probably not because it has a specific remit and, to a certain extent, is walking before it is running as an organisation in regard to the avalanche of complaints made against it. That is one of the issues I am discussing with it in the context of what it calls the lease-back issue between it and the Garda. There is a significant battle between the commission and the Garda over the level of complaints the commission should be examining — whether it should be examining all the complaints made or sifting through them to examine the more serious complaints made. These are issues we need to take slowly.
This legislation is designed, in effect, to regulate what has been happening, particularly on the part of the Garda Síochána. The decision to have legislation predated my appointment, but heretofore it was happy to operate with its ability under the common law to use electronic surveillance. What we are now giving it is a statutory framework, but the prize is that it can use the information as evidence in court to fight serious crime. I am not saying the Garda Síochána Ombudsman Commission is not investigating serious crime. It potentially can do so, but it has a significantly different remit than that of the Garda Síochána. In the context of the surveillance and interception of postage packets and telecommunications, as Minister, its utilisation by the Garda Síochána is very significant in tackling serious crime, particularly continued terrorist activity.
We are for the first time conferring by statute very important powers on the Garda Síochána for all of the reasons on which we need not dwell. It is plain that this is a significant granting of powers to the Garda Síochána. Its purpose is to better combat serious crime in our society, on which we do not need a lecture from the late entrant, Deputy Thomas Byrne. We all agreed to this while he was absent, but we cannot say, including the Minister, that in no circumstances will any garda be involved in serious crime. We know this from experience. It seems the Garda Síochána Ombudsman Commission is being put at a disadvantage by having fewer powers than those available to the Garda Síochána and that we are hampering it. If I thought the Minister intended, when bringing forward amending proposals in terms of the current remit of the commission and the aspects of it that have come to light because of experience and so on, to reconsider the question, I would make do with this, but our experience is that when something like this is let go, we will not revisit it.
Has the Minister received representations from the Garda Síochána on this point? Has he received representations from the Garda Síochána Ombudsman Commission? One only has to talk to the trade unions in the Garda Síochána to know that they are not over the moon about the commission, to put it mildly. In that sense, they are no different from the human beings that comprise the membership of any trade union in the country. One would expect people to respond in that way to defend their own profession. That is normal, but we founded the commission for very good reasons and notwithstanding the diligent work of members of the Garda Síochána Complaints Board during the years, it admitted it did not have the powers to discharge the functions it was given and that there was no confidence in gardaí investigating gardaí in the circumstances that obtained under the board. It is a pity if the commission is being put at a disadvantage and being hampered because there may be very rare occasions when it might have to resort to these powers, but on those very rare occasions it might be very important that it has these powers available to it. I am disappointed that the Minister is persisting with the inclusion of section 17.
I honestly cannot say what I will do or propose in regard to the amendments on the Garda Síochána Ombudsman Commission. I have said as much as I can say in that I will continue to keep the issue of its inclusion in the commission's remit under review. In response to Deputy Flanagan, it is not just that it is a new organisation; this is a completely different organisation in terms of its remit than the Garda Síochána. From my experience as Minister for over a year, I know that the legislation on the interception of post and packages is used very successfully in tackling extremely serious crime, mainly terrorist activity, in particular international terrorist activity. This is a similar power, in effect, to that of the Garda, but that is not to say it will not be used in tackling crime other than terrorist activity. It will.
I am trying to recall Deputy Rabbitte's other point. He might remind me.
I asked if the Minister had received representations from the——
I received representations from the Garda Síochána Ombudsman Commission. To the best of my knowledge, I have not received any representations from the Garda Síochána, but I have not really discussed the issue with it. I have also discussed it with my officials.
Is the Minister referring to the framework of the Bill? Is he saying his officials in framing the Bill did not receive an input from the Garda on this point? I find that a little hard to believe.
I am not aware if my officials received an input, but I did not and the matter has not been brought to my attention. The ink was hardly dry in drafting the heads of the Bill when I received a letter from the Garda Síochána Ombudsman Commission. The emphasis is more on the fact that this is a serious statutory power that is being given to the Garda, which should be used carefully in dealing with issues involving the security of the State and extremely serious crime and should not be used in the case of lesser crimes. That is not to say gardaí are not capable of committing crimes. The Garda Síochána Ombudsman Commission has a restricted remit, which is the investigation of complaints and crimes committed by gardaí. Even if we were to give it this power, I expect it would be used very infrequently. It was decided when the commission was set up under the 2005 legislation not to include the power of interception. It has been able to operate in its initial phase. It has been a difficult phase for it, even though we have given it significant resources, namely, five times the level of staff and a budget, subject to correction, of approximately €100 million. It is struggling to a certain extent in dealing with the level of cases before it. I would be prepared to examine, as should a future Minister, the inclusion of such powers, but that should only be done when, effectively, the commission is walking at a good pace rather than giving it extra powers at this stage.
Effectively, the Garda Síochána Ombudsman Commission is walking but unless it gets additional resources it will be crawling. If a case presented similar to those cases being investigated in the Donegal region, we would hamper the work of the commission if we did not include such powers in this legislation. Some of the activities in which members of the Garda Síochána in the Donegal region were engaged were serious crimes, involving explosives, interfering with witnesses and a gamut of offences.
The security of the State could also be threatened if, for instance, a member of the public complained about a member of the Garda Síochána being an agent of a different state. That would involve the Garda Síochána Ombudsman Commission having to prepare a case. I welcomed the Bill. I am concerned one of the key bodies, which has the power of investigation of complaints against individuals, in this instance members of the Garda Síochána, is not being given these powers because it is suggested it does not have the ability to use them as it has not been established for a long enough period, it is being hampered in its role due to a lack of resources and it will have to wait before it is given those powers. How long will it have to wait? Will it be five, ten or 20 years? In the meantime what will happen to cases that are brought to its attention? Is the commission to be hampered in dealing with them? The fact that the commission recognises the importance of this Bill, wrote to the Minister and that there is not an amendment or recognition in the Bill of its investigative role and the need for it to have powers of electronic surveillance of the subjects of its investigations, is a poor reflection of the thought that has gone into the preparation of this Bill.
Does the Minister have anything to add?
I do not want to repeat myself. If such powers were given to the Garda Síochána Ombudsman Commission, other investigative State agencies, whether it be the HSE or some other organisation that may have investigative powers in other aspects of Irish life, could say they require such powers to investigate possible offences and that they should have this ability.
Very few of them would investigate issues involving the security of the State.
No, but the Garda Síochána Ombudsman Commission would not in effect be doing so other than based on the legislation under which it operates.
Exactly, if a member of the security service of the State, which is the Garda Síochána, is corrupt or involved in serious crime, it is a major issue, whereas I cannot conceive an investigation in which the HSE would be involved that would involve of the security of the State being at risk.
If a member of the Garda Síochána was involved in crime, the Garda would have a role to play in the investigation of that and it has the power to do so under this Bill.
That is if the complaint went through the Garda Síochána ——-
The Garda has a primary role in regard to the investigation——
If it went through a Garda Síochána Ombudsman Commission, the commission would have to take it on board rather than the Garda Síochána. It depends where the complaint lands, I presume.
Yes, but the Garda Síochána Ombudsman Commission operates on a complaints basis. The Garda would initiatede novo cases that would be brought to its attention or the investigation of which it became aware of and it has the powers to do so under this legislation. It is my view and the view of the Government that this is a power that should be given in a very restricted way.
We have discussed this section at length, so we will move on.
I thank the Minister and his officials for attending and the members of the committee for their co-operation.