Pat Rabbitte (Dublin South West, Labour)

I too broadly welcome this Bill, especially as it was prompted by the Garda Síochána (Powers of Surveillance) Bill 2007, which I published in November 2007 on behalf of the Labour Party. Not, as Deputy Flanagan remarked, that one would know that from listening to the Minister, who has not even referred to the fact that a Private Members' Bill was published on the subject. The important thing, however, is that there has been a major shift in official thinking since that Labour Party Bill was published in November 2007. It has been prompted by the gangland killings which are now claiming innocent lives. At the time I published the Bill, neither the Garda Síochána or the Minister favoured such a measure. Indeed, the then Minister, Deputy Brian Lenihan, delivered himself of the opinion that by using bugged and intercepted conversations as evidence in prosecutions, the force ran the risk of "alerting criminals to Garda investigative techniques". It is fair to infer that the Minister was, in that extraordinary remark, reflecting the views of the Garda Síochána.

As I understand the official but unpromulgated position of the Garda, up to and including the publication of that surveillance Bill by the Labour Party, it was that it already had powers to engage in such surveillance but it would not be productive if intelligence so gathered was to be introduced in court. That is the impression I have of why the Garda took the view it did. I would be interested in teasing this out with the Garda. I tried to do it in committee with the Commissioner when he was last with us, but the Garda does not especially want to engage in discussion about why it held those reservations. I would have thought a police force would welcome the national Parliament's being disposed to give it such powers. They are not everyday things that people particularly want to agree to; they have been introduced here only in emergency circumstances.

However, the Garda Síochána's traditional position has been that it has powers of surveillance and it engages in surveillance of criminal suspects, but it considers that, as the Minister said, if it was required or permissible to make that intelligence admissible as evidence in court, it would somehow be counter-productive in that it could alert criminal suspects to Garda investigative techniques. If it does hold that position, it would have been more helpful for it to engage with those of us who do not have the same experience of the criminal justice system, based on its particular investigative role. I would have been interested to hear the arguments in more detail. However, the Garda has now been railroaded into this, due to political imperatives, in order to respond to what is happening in our country.

What is happening in our country at the moment is almost beyond belief. To hear Stephen Collins in Limerick give an interview to the effect that notwithstanding the terrible tragedy that befell his family it again has been threatened, is incredible. He is entitled to plead to this House, to the Government and to the Minister for Justice, Equality and Law Reform in particular to know what steps can be taken to protect him and his family and to allow him to live some type of normal life. We are taking an important step with this Bill. I hope Committee Stage will allow for a somewhat more frank exchange so that Members on all sides of the House understand each other. Whatever else we are divided on, we are not divided on the necessity to bring serious organised crime to heel. We must have a more frank exchange of views.

As I said, it is clear now that the position has changed, and I welcome that. In my view, the murder of Shane Geoghegan was the turning point. If a law abiding citizen can be shot down in a city with three times as many gardaí as in similar urban areas, then we have reached a very serious stage. If witnesses can be threatened and intimidated, things have come to a serious pass. If a respectable businessman can be murdered because a relative did his civic duty and gave truthful evidence in court, then the very basis of our society — the rule of law — is challenged.

In such circumstances, it is to be expected that there will be growing demands for extraordinary measures to be authorised by the State. It would be a mistake to allow the belief to grow that the criminal justice system is incapable of dealing with organised crime without resort to extreme measures. This Bill represents a proportionate and legitimate response to the difficulties we face. When I introduced my own Bill on these matters in 2007, I made the point that modern crime requires modern responses and that the Garda Síochána must be given the appropriate powers to enable it not only to detect crime and put those responsible behind bars but also, to the greatest extent possible, to prevent crime from taking place.

Most people will have been shocked to learn that the Garda currently has no legal powers to undertake electronic surveillance of criminal suspects, although these powers form a central part of the anti-crime armoury of most other countries. It is important to reiterate this point. Deputy Charles Flanagan spoke at some length about our rates of detection and conviction. However, people outside the House are concerned not only with these matters; they are also very concerned that we should seek to be more effective at preventing serious crime. I do not pretend that the extraordinary circumstances being confronted in some urban areas by the Garda are anything but daunting. However, law abiding citizens expect that the first duty of Government is to protect them and to assure them of their safety in their homes, on the streets, in their places of work and in their recreational activities.

We cannot currently say, hand on heart, that we can discharge that duty. This Bill is relevant in the matter of preventing crime. That was my own motivating factor in introducing our legislation. Why should the Garda Síochána not have what it takes in terms of modern equipment to allow it to engage effectively in the gathering of intelligence, intelligence that hopefully will lead to the prevention of crimes that would otherwise have been committed? I do not claim the legislation will be a panacea or anything like that, but it is an important step.

I draw Members' attention to the conclusion of the Irish Council for Civil Liberties that intelligence-led policing not the restriction of fair trial rights is the most effective way to tackle gangland crime. The council acknowledges that the Bill will place Garda surveillance "on a lawful basis that broadly conforms to Article 8 of the European Convention on Human Rights". There is a difficult question that arises in regard to the effectiveness of the legislation in terms of its purpose, in the first place, as well as the constitutional and other rights to privacy and so on of the citizen. However, a vigilant body such as the Irish Council for Civil Liberties would not confer approval on this measure unless it considered it reasonably balanced.

I am not arguing — nor, I presume, is the Minister — that this Bill will of itself defeat organised crime. However, it is a valuable instrument available to the Garda and its use broadly must be the result of judicial authorisation. We should, within safeguards, be prepared to confer every possible advantage on the Garda Síochána to enable it to tackle organised crime effectively. The Labour Party Bill provided for resort to the Garda Ombudsman Commission in certain circumstances. This is something we might discuss on Committee Stage.

As Deputy Flanagan said, the truth is that the corrosive and worsening effect of crime is taking a terrible toll on our society. Some communities in particular are besieged by criminal gangs. Crime bosses dominate these urban communities in the same way paramilitary organisations dominated certain communities in Northern Ireland and sought to obtain control over selected communities in the South. Most serious crime is driven by the trafficking in drugs. Nothing and nobody is allowed to stand in the way of the ruthless drive for lucrative profits. As a result, we have seen a number of innocent civilians losing their lives as they became accidentally involved in the crossfire of the vicious feuding and pursuit of wealth.

Given his period of time in the House, the Minister must find it difficult to understand the very considered reaction on this side of the House given the extent of crime in our society. I said at Question Time last week that were it not for the disastrous condition of our economy and the state into which it has been plunged by the Government's poor management in the past four or five years, crime would be at the top of the political agenda. Deputy Flanagan dealt at some length with the circumstances more than a dozen years ago and the position of the Minister's party at that time.

There was a general election in 1997 when three or four seats separated the contending Governments. Without doubt, it was the issue of crime and zero tolerance which tipped the balance in favour of Fianna Fáil. At that time, Fianna Fáil was grossly irresponsible. Some of the charges made were completely out of proportion and some entirely unfair, but that is politics. There used be uproar in this House if even a letter went missing in the then Department of Justice. Such an occurrence could lead to the adjournment of the House, special debates and censure motions on the Minister of the day.

It is remarkable now, with things so much worse, to note the apparent complacency of the Minister and the people on the benches behind him. Nothing we have ever seen was anything like what we have experienced in recent times: a garda on a motorcycle shot at 11 o'clock in the day; murders of innocent civilians; and the drugs situation getting worse, corroding entire communities and poisoning generations of young people. The drugs situation is at the bottom of all of this. I am not saying it is easy to get on top of it. However, compared to the circumstances obtaining in the early 1990s, the current situation is so much worse, and the Minister knows that.

Deputy Flanagan presented statistics which dealt with the reality we are now experiencing. How far we have come from the days when we were told things were under control and that we were experiencing the last sting of the dying wasp. Unfortunately, the wasps are multiplying and are a very long way from their last sting.

The critical section of the Bill is section 14. It makes intelligence gathered from the measures being put in place admissible as evidence. It is my understanding that if there is a breach of constitutional right evidence is automatically excluded and if there is a breach of statutory right the judge has discretion. That is the exclusionary rule and the Minister has made reference to the Kenny judgment. Perhaps this will be tested. However, it seems that section 14 is probably making as good a fist of things as can be made in the circumstances. We know from the Kenny judgment that inadvertent error does not invalidate evidence held to be admissible. Section 14 deals with that. It is at the heart of the Bill and the Bill will not have meaning without it. If that section were neutered the Bill would not have meaning. I hope that, subject to the safeguards and oversights built into the legislation, it is the intention of this House that intelligence gathered in this fashion can be made admissible in court. I believe that is the wish of the people and it is manifestly the wish of this House. I hope that turns out to be the case. I do not know what additional comments the Minister would want to make on that. Reassurance is what we need.

May I ask the Minister about section 15? Rather than denying that it held the view I have ascribed to the force, it would be healthier for the Garda Síochána to engage with us and explain its reservations. Section 15, which deals with disclosure of information and the processes to be followed, stipulates that, essentially, there will not be discovery of the processes. That seems to connect with the point I made about the Garda Síochána and its wish that the position would be otherwise. Subsection 15(1) provides the processes to be followed should not be disclosed by way of discovery. How does that stand up in court? If I am representing a defendant, surely I can cross-examine as to the processes that were followed. I would like to hear the Minister address that when he replies.

I also welcome the safeguard of the judicial referee although I am curious to know how I can complain to the judicial referee, who will be a Circuit Court judge, about surveillance or interception if I do not know it is happening. I am not arguing that we should put a notice in the newspaper advertising the fact that a process of surveillance in under way or that material has been intercepted. I can understand the role of the High Court judge who will have the very important job of assessing the performance of the interceptions and who, I am sure, will carry out his responsibility diligently and with great care and report to the appropriate member of the Government that all is well. I can understand his role more clearly than that discharged by the Circuit Court judge who is the referee. If, after the event, I become aware that my telephone has been tapped improperly should I go to the Circuit Court judge in the first instance?

We will have an opportunity on Committee Stage to make sure that the legislation stand up to scrutiny. It is not legislation which we can be satisfied to be put on the Statute Book and be then forgotten. It requires to be implemented, given what is now happening in parts of the country.

I refer to the last page of the Minister's script where he refers again in one or two paragraphs to the fact that he is contemplating additional measures. He took the opportunity of the launch of the Bill to announce various other forthcoming measures. He has put very little detail of this in his formal script. I wish to hear more about this matter because gang membership seems to be fraught with difficulty in terms of trying to frame legislation that could stand up to challenge. Is the Minister saying that there is intimidation of jurors in addition to intimidation of witnesses? We are aware that the nub of the problem is intimidation of witnesses.

However, it is even more serious if the Minister is saying there is intimidation of jurors. I know of no evidence suggesting the Special Criminal Court would produce more convictions than the jury courts. Will the Minister contradict that statement? Is there evidence that the Special Criminal Court would produce more convictions? It seems in so far as I have observed the matter that juries are not the problem. It has been suggested that several cases have occurred where the jury might have been more likely to convict than the Special Criminal Court. The issue of intimidation of witnesses is a different matter and it will not be solved by making certain actions scheduled offences to be tried by the Special Criminal Court.

I hope the measures before the House on Garda surveillance will be helpful in dealing with the matter of intimidation of witnesses. I cannot understand how evidence by way of Garda opinion adds much to the evidence garnered from the surveillance mechanism we are putting in place today. Does it add anything for a senior garda to state that his or her opinion corroborates the intelligence gathered from the surveillance measures in place? I hope the Minister has thought out these matters, that there is clarity and that he believes it can bring extra value and more effectiveness in tackling crime. However, I have some reservations concerning what has been put in the public domain thus far. The Minister has devoted only a paragraph in his script indicating what he may or may not do in this regard and I wish to hear more on the matter.

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