Mr. Dermot Woods:

It is not necessarily ripe for abuse. We should not forget that there are post factojudicial and independent control mechanisms. The designated judge who examines the use of the powers under legislation such as this each year in a detailed way would very quickly identify if there was a problem in that regard or some abuse of the process. No such abuse has been identified. There may be individuals engaged in paramilitary organisations on an ongoing basis who would not necessarily at a given point be convicted of an offence but would still be engaged in activities giving rise to State security issues, such as, for example, a paramilitary or serious criminal organisation There would be a difficulty in maintaining the value of the investigatory power of the Garda in counteracting those activities if at a certain point in the process it had to reveal information to the individual that let him or her know they were under investigation or the subject of interest for those paramilitary activities. However, because there are three layers of potential judicial examination of each application, which is a process independent of the Minister, there is not much scope for widespread abuse.Although a detailed case will have to be made to the Minister to make an order for retention, the key point in our view and that of several other member states, as highlighted in the Digital Rights Ireland and the Tele2 Sverige AB cases at the ECJ, is that controls need to be at the point of access rather than retention. Although the Minister may issue an order to a service provider to retain a subset of data for an individual, the data is not released to anybody outside the company until a judge has decided that it can be accessed by, for example, the Garda Síochána. That is one layer of judicial control. At that point it must satisfy all the requirements set out in the Act and the judge would also take into account the general principles of law that go beyond what is explicitly set out in the Act. Subsequent to that, there is a potential level of control by a Circuit Court judge, Judge Hannan, who is the complaints referee, and then a further level of routine control by Ms Justice Baker, who is the designated judge. They have very significant powers of access and compulsion in respect of records and persons involved and can recommend remedies. For example, the complaints referee can recommend a remedy in terms of a sum of compensation which must be given effect to by the Minister. There is no choice in law about that. In that sense, there is a strong pattern of independent judicial oversight that guards against abuse and that is independent of the Minister in respect of both the use of the retained data powers for criminal offences and in respect of the security of the State,.