Mr. Mark Garrett:

I thank the Chair and members of the committee for the invitation to speak to them this afternoon. I am joined by my colleague Ms Amiee McCumiskey, a member of the Law Society criminal law committee and a partner at MacGuill and Company Solicitors.

The Law Society is keenly aware of strong feelings in support of, and in opposition to, the Bill. Working on the front line of the justice system, solicitors know the needs of law enforcement to have at its disposal the necessary tools and technology to deter and detect crime. We are also very much attuned to the need to respect, protect and enforce the rights and civil liberties of individuals.

As explained in the Law Society submission, we have identified a number of possible weaknesses in the published general scheme of the Bill. These weaknesses give rise to concern that this legislation will be challenged on several grounds including through the lens of privacy rights, data protection, the right to non-discrimination and the right to a fair trial. For these reasons, the Law Society believes that the necessity and proportionality required for the introduction of biometric identification in the Irish context merit further examination. Furthermore, we believe the Bill could provide more safeguards and oversight relating to when biometric identification may be used by An Garda Síochána and the external monitoring of its use.

While time does not permit me to go through all of the specific issues we have raised about the Bill, I would like to raise four of them briefly. Much has been made of the intention of this Bill to allow for the use of FRT by the Garda. The general scheme says that biometric data, as it is phrased, will not extend to such physical features as a person’s height or build - presumably because reliance on such information would not lead to a definite identification of a suspect. If it is the intention that the Bill will only apply to facial images and not other physical characteristics of individuals, such as their height, it would be preferable that this is set out more explicitly in the legislation.

The scheme permits the Garda to process and store “images which have been legally provided by other national or international organisations”. The draft does not specify what national or international organisations it refers to and we believe it should do so.

Further, the Bill should place an onus on the Garda only to use images which have been legally obtained by outside organisations. For example, the Department of Social Protection has been implicated in the past for illegally processing biometric data. If such data is subsequently transferred to An Garda Síochána then the whole chain could be tainted and attempts to secure convictions could fail.

Finally, for now, it is not explained how, or against what criteria, a chief superintendent is to assess whether the use of biometric identification is both necessary and proportionate. As we say in our submission, it is assumed that such technology will only be required for complex investigations and where there is a threat to the public security, concern for a person’s safety or the protection of life. The objectives of the proposed Bill could be set out in clearer detail so that the test as to what is necessary and proportionate can be better assessed and reviewed. We also recommend that judicial oversight might be more appropriate here, namely an application to a District Court judge.

In conclusion, the Law Society is mindful that this is complex legislation that deserves close scrutiny. I am very happy to assist the committee with any further elements of its work.