Michael Noonan (Limerick East, Fine Gael)

I wish to share time with Deputy Kieran O'Donnell.

I welcome the Bill and I agree with the approach of the Minister and his officials, but I have several queries I wish to raise related to some of the proposals about which I have concerns. I will come to these in due course. The Criminal Justice (Surveillance) Bill 2009 was promised by the Minister for Justice, Equality and Law Reform following the murder of the late Shane Geoghegan in November 2008. At the time we understood it would be introduced before Christmas 2008. However, it was not and it took another murder, that of Mr. Roy Collins, to provide the impetus for its publication.

The Garda Síochána and other State agencies have been involved in surveillance since the foundation of the State. That surveillance has a weak statutory basis and evidence gathered from the surveillance is inadmissible. The Bill provides a statutory basis for surveillance by the Garda Síochána, the Army and the Revenue Commissioners and the evidence gathered through surveillance will be admissible.

The procedures to be followed before surveillance takes place and the record keeping prescribed seem reasonable. The role of the Judiciary at various stages in the process is welcome, as are the provisions for complaint. However, some issues remain a cause for concern. Section 4 sets down the conditions under which a superior officer of the Garda Síochána, the Army or the Revenue Commissioners may apply to a judge for authorisation for surveillance. It is implicit in the section that the surveillance would be carried out by members of the Garda Síochána, the Army or the Revenue Commissioners. However, section 13, which makes provision to preserve confidentiality, lists the persons to which the section applies. These include members of the Garda Reserve and the Reserve Defence Forces. It is pointless including such people unless it is the intention of the Minister to have members of the Garda Reserve and the Reserve Defence Forces involved in surveillance. Otherwise, it is inexplicable — how would such people access confidential information, which must remain confidential under penalty? A period of up to 12 months in jail is the penalty set down. This is of concern and must be clarified. There is a mismatch between sections 4 and 13.

More worrying is the inclusion in the definition of "a relevant person" of persons "engaged under a contract or other arrangement to work with or for the Garda Síochána, the Defence Forces or the Revenue Commissioners". Upon reading this any normal person would believe the Minister intends to allow these agencies to employ contractors. The concept of private sector security contractors involved in surveillance does not appeal to me. The use of private sector contractors in security has become widespread both nationally and internationally. Their record in Iraq does not inspire confidence and I do not approve of private sector security contractors being involved in surveillance on behalf of State agencies. The Minister must explain to the House why the measures in section 13, which refer to the confidentiality of the procedures in which the Garda Síochána are engaged, would apply to contractors working on behalf of the Garda or persons who have entered other arrangements on behalf of the Garda. I presume it is not to allow for a situation where contract cleaners encounter documents on a night when they are cleaning a Garda station. This requires an explanation. There is a mismatch between sections 4 and 13. I cannot envisage a plausible explanation and I want the matter clarified as quickly as possible. I do not approve of private sector contractors involved in surveillance. It is simply not acceptable.

The provisions of section 7 are probably necessary. The duration of the emergency surveillance envisaged is confined to 72 hours but I believe this section may encounter constitutional difficulties. Its chance of not being struck down would be improved if the superior officer in the section were defined as an officer not below the rank of chief superintendent, rather than that of superintendent. There may be a case for extending the conditions required for authorisation beyond those listed in section 7(2), in which authorisation may be granted if there were a likelihood of absconding, obstructing the course of justice, destroying evidence, or if there is a likelihood that serious crime could be prevented.

The provision that authorisation may be sought if it was considered that a person was likely to commit an arrestable offence is too wide. The normal procedure is that the Garda must go to the District Court. If it does not do so and is permitted to proceed through the authorisation of a superior officer for surveillance for a 72-hour period without the authorisation of the district judge, then that is, by definition, an exceptional situation. The conditions under which that section operates should be exceptional. To state that for an arrestable offence, a superior officer may grant authorisation without recourse to the courts puts the measures on very thin constitutional ground. It seems the provision is only applicable in exceptional circumstances and in cases of urgency.

Let us suppose a child is kidnapped, there is a clear danger and no district judge is available. Then it is fine for the superintendent to authorise surveillance. The definition in the section refers to a case where the Garda suspect that an arrestable offence may occur but there are innumerable arrestable offences. The definition is too wide for an exceptional provision. I realise an arrestable offence is one for which a penalty of imprisonment for five years applies. Why not recast the section and have something along the lines of "if in the opinion of the Garda a murder or serious injury to a third party may take place"? If they only apply in exceptional cases, then the provisions under which the Garda may act in this way must be clearly seen to be exceptional.

I do not propose a full solution, but the section as drafted is constitutionally suspect. There must be specific grounds if one moves away from the procedure of authorisation from the District Court judge and vests the procedure in the hands of the Garda authorities, even though the period of surveillance would not pass 72 hours. The passing of the authorisation by a District Court judge should be exceptional as should the bypassing of authorisation by District Court judges, and the conditions which allow it should be quite specific and spelled out in law.

The final point I wish to raise is another section which should be more specific, section (5)(iv), which provides that a judge should not issue an authorisation if the surveillance being sought is likely to relate primarily to communications protected by privilege. This is fair enough in one way. The restriction on surveillance is unclear. We all know about privilege with regard to solicitor-client relationships, patient-doctor relationships, but would conversations between husbands and wives in gangland families be excluded? Is that not privileged also? What about gangsters being interviewed by journalists? Is that excluded? What about money-laundering financiers and gangster clients? Is that privileged and excluded? Just to say that privileged conversations and occasions are excluded is not enough. More detail must be given, if only in the interests of the District Court judges who will have to apply the law when an application goes before them.

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