Mr. Justin Kelly:

I am here to represent the Commissioner of An Garda Síochána. My role, as assistant commissioner, is in organised and serious crime. Under that remit are sections such as the Criminal Asset Bureau, the fraud bureau, cybercrime, the Garda National Protective Service Bureau and the Garda Drugs and Organised Crime Bureau. I will, shortly, provide an overview of An Garda Síochána's position on the Communications (Retention of Data) (Amendment) Bill 2022, which is focused on addressing the immediate impact of recent judgments from the CJEU, including in the Graham Dwyer case. As the committee will be aware, in the Dwyer case, the CJEU ruled that EU law prohibited the general and indiscriminate retention of electronic and location data and found that in Ireland's case, section 6(1)(a) of the Communications (Retention of Data) Act 2011 was inconsistent with EU law.

An Garda Síochána welcomes the Communications (Retention of Data) (Amendment) Bill 2022. We welcome the provision contained in same to seek and retain electronic traffic and location data, in order to mitigate risks posed to our national security. An Garda Síochána also welcomes the provisions in the Bill to allow for the lawful access to subscriber data and information on Internet protocol IP addresses, which will be invaluable in sensitive criminal investigations. It similarly acknowledges the provision in the Bill to access location information in high-risk missing persons cases, which allows us to meet our Article 2 obligations to preserve life.

An Garda Síochána welcomes the fact that judicial authorisations will be required to preserve and access data and this, in turn, will provide reassurance to the public of the independence of the process and ensure the protections to the right to privacy and the right to protection of personal data. Unfortunately, from the perspective of investigating serious crime, significant difficulties are foreseen. We are, however, cognisant that the Bill has to conform to the jurisprudence of the CJEU.

Going forward, the issue of targeted retention is a challenge for all countries in the EU, not just Ireland. It is acknowledged that the current Bill will be followed by additional legislation intended to address other outstanding issues. As the committee will probably be aware, a significant feature of criminal investigations is the use of electronic traffic and location data to provide investigative opportunities to gather evidence. In that regard, there is also a positive obligation on foot of the rulings of the superior courts in Ireland, which mandates An Garda Síochána to seek out and preserve all evidence which tends to show the guilt or innocence of persons suspected of involvement in a crime.

Under the scheme of the Bill, while An Garda Síochána will be able to utilise preservation and production orders to secure evidence, this process will be forward looking and not retrospective. This will cause significant difficulties in criminal investigations, which usually commence post-incident. However, this restriction does not arise with regard to matters which relate to national security.

The Bill will be of most benefit where An Garda Síochána is aware in advance of communications methods utilised, for example, by an organised crime group. Unfortunately, this is rarely the case. In the norm, many of our criminal investigations look into the past and utilise post-incident analysis. This will no longer be possible and will be a significant challenge for criminal investigations. An Garda Síochána urges wider consultation with the communication service providers in the initial period and post the enactment of the Bill, to examine the availability of data during this phase.

If any member of the committee has questions, my colleague and I are keen to assist.