Dáil debates

Thursday, 30 April 2009

Criminal Justice (Surveillance) Bill 2009: Second Stage (Resumed)

 

10:30 am

Photo of Dick RocheDick Roche (Wicklow, Fianna Fail)

When this debate concluded last night, I was responding to the fine contribution that had been made by Deputy O'Dowd. I emphasised my agreement with many of the points he had made. Today, I am happy to restate my full backing for this Bill. In essence, we all agree with it. The main purpose of the Bill is to regulate the law and the present practices of the Garda Síochána, the Defence Forces and the Revenue Commissioners relating to the secret surveillance of suspects. It is a sad reflection on the development of society that we have to provide for the secret surveillance of suspects. If it is deemed necessary, however, it is appropriate that there should be a good and strong legislative basis for it. This legislation provides such a basis. Secret surveillance operations can produce valuable intelligence material, not only when serious crimes and subversive activities are being planned but also when offences are being committed and after they have been committed. Last night, I outlined some of the reasons it is appropriate to make statutory provision for such operations.

This Bill will put in place a system whereby the use of surveillance devices during security operations can be authorised and approved. This legislation is good because it specifies the requirements that must be observed by the various State agencies when they are using such devices. An authorisation may be issued on foot of an application to a District Court judge. On the basis of the evidence presented to the court by a superior officer of the Garda Síochána, the Defence Forces or the Revenue Commissioners, the judge must be satisfied that the proposed surveillance is necessary and uses the least intrusive method available. While a judicial authorisation will be generally required before surveillance can take place, the reality is that the exigencies of an individual situation frequently mean that it is not possible to go to court. Under the terms of the two general exceptions provided for in the Bill, surveillance may be carried out with the approval of a superior officer. This good and well drafted Bill sets out the specific circumstances in which such a departure from the norm may be permitted.

We all understand that in circumstances of exceptional urgency, it may simply not be possible to get court authorisation. Every reasonable person will accept that if there is an immediate risk of a person evading justice, committing an offence or destroying information or evidence relating to a crime, exceptional circumstances can be said to exist. In such instances, a senior officer of the Garda Síochána, the Defence Forces or the Revenue Commissioners must be satisfied that the proposed surveillance is necessary and uses the least intrusive method available. There is a strict time limit of 72 hours for the use of approved surveillance. If the surveillance is to continue beyond that period, authorisation must be sought from a judge within the 72 hours in question. This is a prudent measure. In such circumstances, the senior officer who approved the surveillance will be required under this legislation to make a report to a more senior officer - an assistant commissioner, a general officer or an assistant secretary - on all aspects of the approval. The report will summarise the surveillance that was conducted. The other set of circumstances in which an approval, rather than an authorisation, will be required will be when tracking devices are used to provide information on the location of a person, place or thing. The safeguards that are provided for in this Bill are proportionate. They offer the necessary balance between privacy rights and the protection of national security.

One of the most important features of this Bill is the section that sets out the qualifying criteria which must be fulfilled before surveillance may be used. It underscores the fact that secret surveillance is only permitted where serious crime is involved and the interference with privacy is proportionate. Those criteria must be taken into consideration in cases of judicial and non-judicial authorisation. In that context, I would like to refer briefly to a recent unpleasant personal experience. I was present at the scene of a crime that was carried out by masked individuals who could not possibly be identified by gardaí at the scene. I understand that surveillance material on these individuals was available from a place in which they had committed another crime, in the lead-up to the second crime. It seems to me that it is important to ensure that members of the Garda are not frustrated by excessive regulation. I recall speaking about the viciousness of the crime I witnessed. I referred particularly to the manner in which some of the young women who were working where the crime took place were treated.

Deputy Costello agreed with me last night when I said there is something extraordinarily vicious and almost inhumane about the crimes carried out by gangs. Members of the Garda have told me it is frustrating to have to fight crime with one hand tied behind their backs. The surveillance arrangements we are providing for will help to liberate the Garda, while offering specific protections to prevent future abuses. It is good and prudent that proper records will have to be kept of the details of approvals and operations and that complaints procedures are being provided for.

If a breach of the operation of the legislation takes place, it is right that the relevant authorisation or approval may be quashed and an order for compensation may be made. I am glad there will be judicial oversight of the use of the authorisation procedure and the conduct of autonomous emergency Garda operations. It is appropriate that a judge of the High Court will be appointed to keep this legislation under review and to report to the Taoiseach, who will ensure copies of such reports are laid before the Oireachtas.

As an aside, I wonder if our High Court judges should be so encumbered - perhaps we should find people outside the High Court to do these things. There are strict rules governing the storage and disclosure of material gathered from surveillance. If material is collected for one purpose, it is important that it should not be used for another. I have already mentioned that the Bill addresses crucial issues such as the disclosure of evidence and operations, to protect the integrity, effectiveness and security of Garda methods and operations.

Overall, the Minister has produced a fine Bill. The Garda Commissioner has advised him that a new approach is needed in light of the kind of serious crime the force has been dealing with over recent times. Deputy O'Dowd referred graphically last night to instances of gangland activity. Drug empires have been built. Threats have been made by subversive elements in our society. It can be difficult to get strong evidence against the godfathers of crime. This Bill provides a new approach and represents a change of policy. Up to now, it has not been the practice to use the results of secret surveillance in evidence. Quite rightly, the courts have been careful to avoid the use of such evidence. The balance has now been tipped to the point that this exceptional step needs to be taken. The availability of information, including aural recordings, about planning meetings, the context of such meetings, the individuals involved and the places discussed, could be of crucial importance in supporting criminal charges, particularly if direct evidence is weak or inconclusive or, as we have seen in recent times, there is a real and physical threat to decent citizens who would otherwise be available to provide evidence. This Bill is a necessary part of the ongoing fight against gangland activity and other serious crime. It should and will enjoy the support of all Members of this House and the other House. I wish the Minister and his Department well in processing the legislation.

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