Dermot Ahern (Louth, Fianna Fail)

I move: "That the Bill be now read a Second Time."

I am pleased to open the Second Stage debate on the Criminal Justice (Surveillance) Bill 2009. It is a mark of the importance of the Bill that the debate on it in the Oireachtas has commenced so soon after its publication and presentation to this House. The primary purpose of the legislation is to facilitate the use in evidence of material gained by means of secret surveillance in criminal proceedings. At the same time, the Bill will ensure that the encroachment on certain rights relating to personal privacy and privacy of property, particularly a dwelling, which this entails is limited and proportionate. It deals with these objectives in two ways. First, the Bill provides for the first time a basis in law for secret surveillance by the organs of the State, principally the Garda Síochána in its role as the primary law enforcement and security agency of the State. The Defence Forces are included because of their parallel responsibility in protecting the security of the State, mainly against threats posed by subversives and international terrorism. The Revenue Commissioners have a frontline role in protecting the financial interests of the State and the European Union and guarding against the illegal importation of drugs and firearms. It is easy to see how the interests of these agencies may coincide In the case of joint operations by the Garda and the Revenue Commissioners, money laundering and tax evasion are targeted. That is a key element in the fight against organised and subversive crime. Second, the Bill sets out the rules that will apply to the admissibility of that evidence.

As the Garda Commissioner said at the launch of the Bill on 17 April, surveillance is as old as policing. It takes many forms, the simplest of which is keeping a track on a person's movements on foot or in a car, or using binoculars, a camera or CCTV in public places. Clearly, this Bill is not about such forms of surveillance. The area of electronic surveillance, such as the interception of telecommunications, is the subject of the Interception of Postal Packets and Telecommunications (Messages) Act 1993. Secret electronic surveillance devices, which are specifically designed to eavesdrop, film, monitor movements and record information, are being increasingly used in the 21st century. This Bill seeks to regulate the use of such devices by the agencies concerned. As secret surveillance is invasive and intrusive, the principles of the Constitution and the European Convention on Human Rights must be considered before any interference with privacy rights can be contemplated. It is generally accepted that in a democratic society, a state may exercise special powers denied to ordinary citizens in certain circumstances and in the common interest. The right to privacy, which may be interfered with in certain circumstances and subject to certain safeguards like those set out in the Bill, is a case in point. This area was examined in detail by the Law Reform Commission in its 1996 consultation paper and again in its 1998 report, Privacy: Surveillance and the Interception of Communications.

Another area that is protected under the Constitution and the European Convention on Human Rights is the right to a fair trial and the associated evidential issues, such as admissibility and disclosure of evidence. These matters are dealt with in the Bill. As I said at the outset, this legislation is designed to facilitate the use in evidence of information and material obtained by secret surveillance. These matters have been carefully considered.

The legislation has been drafted with the relevant principles in mind. I believe we have struck the correct balance in the Bill between the competing interests of privacy and due process on the one hand, and the protection of people, the prevention of crime and the security elements on the other hand. This is reflected in the fact that the Bill has received a general welcome from all sides in this House and from the various NGOs with a particular interest in this area. The Garda has been reluctant to use evidence of this nature in court, mainly for legal and operational reasons, but that policy has now changed. In the opinion of the Garda Commissioner, the changing nature of crime, particularly the growth of organised and ruthless gangs, requires the security response to be stepped up. The threat to society and the integrity and effectiveness of the criminal justice system that is posed by these gangs requires a corresponding robust legal response. I refer in particular to the attacks on ordinary people going about their daily lives.

The use of sophisticated surveillance devices is an essential tool in the fight against serious crime in many jurisdictions. It provides tactical and strategic information for various agencies in their respective fields of operation and facilitates effective cross-agency co-operation, as required. It delivers real-time intelligence on the plans and actions of criminals, subversives, terrorists and other sources. The use of forms of surveillance allows various agencies to disrupt the plans and frustrate the actions of such people. It can identify the perpetrators and facilitate their arrest. It can reveal the existence of new sources, from which a broader understanding of the threat posed by criminals and others can be assessed. Accordingly, preventive strategies can be developed by agencies. The use of secret surveillance after a crime has been committed can lead to the arrest of the perpetrators. It can also assist with the recovery of the proceeds of crime and help to unravel any related money-laundering operations. Crucially, surveillance can prevent loss of life. It is of inestimable value in dealing with ransom cases and crimes of revenge and retribution within the criminal community.

I wish to outline the main provisions of the Bill in a general way. Crucially, it will include strong checks and balances in the regulatory regime that governs the use of surveillance. In nearly all cases, the use of surveillance devices will be subject to an authorisation issued by a judge of the District Court, on foot of an application based on specific conditions from a superior officer of the relevant agency. Authorisations will be issued for a period of up to three months and will be renewable on application to the court for further periods of up to three months. In the case of the Garda Síochána, applications will be made by a member not below the rank of superintendent. In the case of the Defence Forces, the applicant will be a member not below the rank of colonel. The appropriate grade in the Revenue Commissioners will be principal officer. In applying for an authorisation, the officer concerned must believe that the surveillance is the least intrusive means necessary and that it is proportionate to its objective of investigating or preventing serious crime.

The Bill allows for two exceptions to be made to the requirement for judicial authorisation to initiate surveillance. The first of these arises in cases of extreme urgency where there is a likelihood of a person escaping justice, where evidence is likely to be destroyed or where there is a risk to the security of the State if immediate action is not taken. The limitation to 72 hours of an approval for the use of surveillance in situations of this nature underpins the requirement that emergency approvals will be used in limited circumstances. Any extension of the time for surveillance beyond the 72-hour period must be authorised by a judge. The second exception concerns the use of tracking devices, the purpose of which is to provide information on the location of a person, place or thing. An approval by a superior officer for the use of such a device is necessary. Such approvals can extend to a maximum of four months. The Bill provides that the Minister for Justice, Equality and Law Reform may make regulations prescribing a period of less than four months to protect the privacy rights of persons in the interest of the security of the State of the detection and prevention of crime.

The superior officers who grant approvals will be required to make a report on the approval to include a summary of the results of the surveillance engaged in to an officer at a senior level within seven days. This will be to an assistant commissioner in the case of the Garda and to an officer of equivalent seniority of rank in the other agencies governed by the Bill.

A key element of the Bill is its facilitation of the use of surveillance material as evidence in criminal proceedings. It provides for the admissibility of material obtained lawfully under the Act. It also makes provision that where there has been an inadvertent error, omission or failure to fulfil the requirements of the Act, evidence may be admissible if the court, having regard to particular matters set out in the Bill, finds that it is in the interests of justice to do so.

The Bill also provides for a complaints procedure where a person who believes that he or she has been subjected to surveillance may complain to the existing complaints referee Judge Carroll Moran, of the Circuit Court who adjudicates on complaints under the 1993 Interception Act. He is empowered to investigate the matter and he may order certain actions to be taken if a breach of the Act is discovered. This may include the quashing of the surveillance authorisation involved or a recommendation for the payment of a compensatory amount up to €5,000 to the complainant.

Similar to the 1993 Act, the operation of the surveillance legislation will be subject to the oversight of a designated High Court judge, who will report on the operation of the legislation in respect of authorised and approved surveillance to the Taoiseach, on at least an annual basis. This will be a separate appointment by the President of the High Court. The report will be laid before both Houses of the Oireachtas. This procedure adds to the safeguards already outlined in the Bill regarding the protection of privacy and other rights. The complaints referee and the designated judge will have full access to all materials they require regarding the surveillance operation.

I will now set out more fully the provisions of the Bill. Section 1 deals with definitions, several of which are worth explaining further. First, in defining member of the Defence Forces and member of the Garda Síochána for the purposes of surveillance under the Bill, members of the respective reserve forces are excluded. Any powers of surveillance granted to the Garda or the Defence Forces are not granted to members of their respective reserves. Second, revenue offences are defined for the purpose of the Bill as arrestable offences under specific Acts primarily dealing with tax fraud and smuggling. Surveillance powers of the Revenue Commissioners under this Bill are restricted to these offences. Furthermore, the Bill defines surveillance as monitoring, observing, listening to or making recordings of persons, places or things by or with the assistance of surveillance devices. It does not include situations in which persons are followed or observed without the use of surveillance devices. The Bill defines such surveillance devices as apparatus designed or adapted for use in surveillance but it specifically excludes certain devices in certain circumstances such as devices designed to improve night vision where the image is not being recorded, CCTV and cameras where they are used to photograph persons in places to which the public has access.

Sections 2 and 3 provide that the Bill applies to surveillance carried out by the Garda Síochána, Defence Forces and the Revenue Commissioners and that any such surveillance may be carried out only in accordance with the Act. Nothing in the Act will render unlawful any activity which would otherwise be lawful. An example in this regard is the provision in the 1984 Criminal Justice Act and the corresponding 1987 regulations for the tape recording of interviews with suspects.

Section 4 deals with applications for authorisations to conduct surveillance. It provides criteria which must be satisfied before an application can be made. In the case of the Garda Síochána, surveillance can be sought as part of an operation concerning an arrestable offence, to prevent an arrestable offence and in respect of the security of the State. The Defence Forces may apply for an authorisation regarding matters concerning the security of the State and the Revenue Commissioners may apply in respect of revenue offences. In all cases there must be reasonable grounds for believing that the surveillance is necessary for the purpose intended and, further, that such surveillance being sought to be authorised is proportionate to the objectives and is reasonable.

Section 5 deals with the issuing of authorisations for surveillance by a District Court judge, applications for which may be made ex parte and shall be heard in private. Before a judge issues an authorisation, he or she must be satisfied that it is justified to do so having regard to all relevant circumstances and that any surveillance is not primarily directed at privileged communications. An authorisation may be issued for a maximum of three months. The judge, when issuing an authorisation, may authorise the person named in it, or other members, or other persons considered necessary to enter property, if necessary by reasonable force, to carry out such surveillance.

Section 6 provides for the variation of the conditions attached to an authorisation and for the renewal of an authorisation for a further period of up to three months.

Section 7 provides for the approval of surveillance in situations where the matter is urgent and there are reasonable grounds to believe that before an authorisation could be issued, it is likely that a person would abscond to avoid justice, evidence would be destroyed, or the security of the State would likely be compromised. In such a case, a superior officer may give approval for surveillance on grounds connected with the issuing of an authorisation for a limited operational period of up to 72 hours. If continued surveillance is required, an authorisation will have to be obtained from a judge of the District Court. The section also requires the keeping of written records and the making of reports by the parties involved.

Section 8 provides for the approval of the use of tracking devices for a maximum period of four months. Judicial authorisations are not required for their use, but the approval of a superior officer is necessary based on strict qualifying criteria in line with the criteria for the approval of surveillance. Such tracking devices would be used to monitor the movements of persons, vehicles or things and provide information on the location of same. The Bill requires that written records and reports have to be maintained in these cases.

Section 9 provides for the retention for a specified period of all official documents relating to authorisations for surveillance, reports, written records of approval sanctioning surveillance in urgent cases, the use of tracking devices and surveillance. This period is either three years from the end of the surveillance, or the day after the information is no longer required for any prosecution or appeal for which it is relevant.

Section 10 deals with the secure storage of, and authorised access to, information and documents generated as a result of the carrying out of surveillance, with the intent of protecting persons' privacy and other rights.

Section 11 provides for a complaints procedure where a person believes that he or she may be the subject of surveillance. In a case where there has been a contravention of a provision of sections 4 to 8 of the Bill, the referee has the power to direct the quashing of an authorisation, the destruction of any information obtained and to recommend payment of compensation up to €5,000. If the judge believes, however, that it is in the public interest to do so, he or she may decline to make such directions or recommendations. Where the referee finds no such contravention, he or she will notify the applicant stating only that there has been no such contravention. The referee may also refer the matter to the Garda Síochána Ombudsman Commission, the Minister for Defence or the Minister for Finance depending on the particular State agency concerned.

Section 12 provides for the appointment of a judge of the High Court to oversee the operation of the main provisions of the Bill and to make regular reports to the Taoiseach in the matter. Such reports will be laid before both Houses of the Oireachtas.

Section 13 is a confidentiality provision. It prohibits the disclosure of any information about the operation of the Bill, unless it is made to an authorised person, as defined, and it is connected with specified criteria such as the investigation and prosecution of offences or in the interests of the security of the State. The section applies to members and officers of the agencies concerned, including members of respective reserve forces, as well as to persons engaged on contract work. It also applies to persons generally. Breach of this provision is an offence which may be prosecuted summarily or on indictment.

Section 14 is a core provision of the Bill. It deals with the issue of admissibility of evidence in the narrow and very specific context of evidence obtained by means of surveillance. It provides that such evidence, notwithstanding any error or omission on the face of an authorisation or a written record of approval, or notwithstanding any failure by any member or officer to comply with a requirement of an authorisation or written record, is admissible in certain clearly defined circumstances, where the error or omission was inadvertent or where the member or officer acted in good faith and the failure was inadvertent and where the interests of justice would be served by the admission of the information.

The court, when deciding on the admissibility of such evidence, will have regard in particular to matters set out in the section, whether the error or omission or failure was serious or merely technical in nature, the nature of any right infringed, any circumstances of urgency and the possible prejudicial effects of the information and the probative value of same. In effect, this means that a breach of statute-based procedures or a failure to fulfil particular statutory requirements will not, of themselves, mean that the material in question must be excluded.

Section 15 deals with the disclosure of information about surveillance in court proceedings. It provides that disclosure by means of discovery or otherwise shall not be made unless a court authorises otherwise. A court shall not authorise such a disclosure unless it is satisfied that to do so would not create a risk to the security of the State, the ability of the State to protect persons, including witnesses and the integrity and effectiveness of security and crime fighting operations.

Section 16 provides that the Minister for Justice, Equality and Law Reform, the Minister for Defence and the Minister for Finance may make regulations under the Act. Any such regulations must be laid before each House of the Oireachtas.

Section 17 amends the Garda Síochána Act 2005 to provide for the non-application of the provisions of the Act to the Garda Síochána Ombudsman Commission. This is in line with the existing non-application of provisions of the Offences against the State Acts 1939 to 1998, and the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993.

Section 18 provides for a technical amendment of section 32A of the Courts (Supplemental Provisions) Act 1961 so as to extend the provisions of that section to include this Act. Section 19 is a standard provision and provides for the Bill's Short Title.

I regard this Bill as a significant advance in the process of bringing those involved in serious criminal, subversive or terrorist activity to justice. It is a demonstration of the Government's ongoing commitment to the fight against crime and to the safety of all our citizens. It adds to the draconian measures already introduced by the Criminal Justice Acts of 2006 and 2007 in dealing with the prosecution of gangland crime.

The Bill provides an appropriate and, more importantly, a proportionate balance between the competing demands of protecting the privacy rights of persons and of ensuring that we live in a society that is safe from the threats of violent crime and terrorism. The Bill respects our obligations under the Constitution and the European Convention on Human Rights, while ensuring that effective mechanisms are in place in supporting the Garda Síochána and other agencies in carrying out their work.

The benefits and risks associated with using the material gained as a result of surveillance in evidence involve a complex interplay of legal, technical, operational, resource and organisational matters. The security of the systems in use must be protected. At the same time, technological developments in this area are continuing to evolve so quickly that the potential intrusiveness into our personal lives requires that it may only be resorted to in a proportionate way, accompanied by proper and effective legal safeguards. I think the House will fully agree with me that the Bill now before it meets these requirements.

I would like to mention briefly my intention to introduce further measures to tackle organised criminal gangs in a separate Bill, which complements to a large extent the provisions in this Bill. In light of the ongoing intimidation of witnesses and jurors, I am considering that the powers available to combat subversive organisations be applied equally to criminal gangs. This would mean that crimes involving criminal gangs would be scheduled offences for the purposes of the Offences Against the State Act, so that they will be tried in the Special Criminal Court, unless the DPP directs otherwise. I am also considering the introduction of several new organised crime offences with a maximum prison sentence of 15 years to life.

There are complex legal and constitutional issues involved in these proposals. I am in close consultation with the Attorney General and also with others in my Department on these matters.

I commend the Bill to the House and thank the Opposition for considering it so quickly after its publication. I hope it will have a speedy passage through the Oireachtas.

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