Mr. Simon McGarr:

On the question of incompatibility with European law, it is thus as currently drafted but that it is not to say that changes cannot be made that will bring it in line with European law. Indeed, the European Data Protection Board has produced a guidance note - which the Data Protection Commission, as one of the members of that board, could speak to better than I could - on what to look out for to ensure that facial recognition technology, when it is being brought in for the purpose of law enforcement, will not overstep the boundaries of European law. The primary problem with the scheme of the Bill that we have in front of us is that it lacks the necessary foreseeability, precision and strict necessity and proportionality built into usage. Without those, we run into difficulties both in terms of the Charter of Fundamental Rights and the court's decisions on Digital Rights Ireland and subsequent decisions on the application of that charter, even in law enforcement areas.

It is important that we make sure the difference between European law and Irish law does not open up an opportunity for challenges in the future. I appeared before this committee a couple of years ago and discussed data retention and the dangers of having challenges to what would otherwise be, and should be, very strong prosecutions. All of the witnesses present will agree it is important that people who have committed crimes should face the consequences of those crimes and that gardaí should be given the necessary and appropriate powers to ensure that those prosecutions are brought about. However, if we lay an elephant trap in relying on national legislation that can then be overturned at a European level - and foreseeably so - it would mean that we would run into difficulties with the JC decision, which requires that if any evidence was gathered or used in a prosecution, it could only be relied upon if the fact of its illegality was not foreseeable. It would also mean that we would run into difficulties where we could not identify which cases and which pieces of evidence should be faced, that Garda should rely upon, when it comes to prosecutions.

Strong prosecutions resulting in reliable outcomes for the courts are what everybody wants to see.