Joe Costello (Dublin Central, Labour)

I welcome the opportunity to contribute to the debate on this legislation. I acknowledge the fact that, in 2007, my colleague, Deputy Rabbitte, proposed a similar Private Members' Bill. To some extent, that is the context in which we are discussing this legislation.

As some of the advisers present will be aware, following the 2002 general election, Mr. Michael McDowell was appointed Minister for Justice, Equality and Law Reform and I served as Labour Party spokesperson on justice. During the former Minister's term in office, he introduced legislation on a serial basis and his Department resembled a factory producing legislation. The Minister was a flamboyant character who believed legislation, which he introduced almost weekly, would solve every problem. In 2004, following a gangland killing, he made the now famous remark that the murder was the sting of a dying wasp and he had gangland crime under control. That year marked a turning point in the sense that the character of drug addiction in Ireland changed from being largely heroin based to being largely cocaine based. Cocaine has since bypassed heroin, the preferred drug in the capital city since 1970, as the drug of choice. After three decades of hard drug abuse, heroin distribution networks have spread throughout the country, especially to urban areas, and the problem is largely out of control.

Drugs and guns are widely available and form the backdrop to this legislation. The use and abuse of illicit substances and firearms causes gangland turf wars over profits with the result that gangland activity has become embedded in Irish criminal culture and previously ad hoc criminal activity has become organised. The largest seizure of gangland weaponry in the history of the State was made in September 2007 when 41 different weapons were seized in a single haul. The seizure followed a four month international investigation into the activities of leading Dublin and Limerick criminals. The firearms are believed to have been destined for crime gangs in both cities which had linked up. The operation involved police and customs services from the Republic of Ireland, Northern Ireland and the Netherlands. That is the position as regards guns.

Shortly before this seizure of firearms, the largest ever drugs haul in the history of the State, worth approximately €500 million, was made. Ireland has clearly become a marketplace for drug barons and, as an easy access point, has become a launching pad for the global distribution of drugs. The world market in drugs is large and lucrative. According to the United Nations, for example, the illegal drugs trade is a massive global industry with a highly sophisticated international supply chain. UN figures show that illegal drugs account for 8% of world trade and are worth more than the combined global market for textiles, clothing, iron and steel. The United Nations Office on Drugs and Crime estimates the global illicit drug market was worth $400 billion in 2003. Of more than 200 million drug users worldwide, those using cannabis, marijuana, hashish - THC - accounted for the largest number, at 162 million users, while the numbers using amphetamines, methamphetamines and ecstasy is estimated at 35 million. The number of users of opiates - opium, morphine, heroin and synthetic opiates - is estimated to be 60 million, while some 30 million people use cocaine.

In 2007, the United Nations International Narcotics Control Board noted some emerging trends in its annual report, including the emergence of new drug smuggling routes into Europe, in particular, the practice of stockpiling and repackaging cocaine from South America in west Africa before it enters Europe. Ireland is one of the ports of call for the introduction of cocaine into the European market.

The report also noted the increased cultivation of coca bushes, from which cocaine is derived, in Peru and Bolivia as crop eradication programmes reduce production in Columbia. It noted a 17% increase in illicit opium poppy cultivation during 2007 in Afghanistan, the country which currently accounts for 93% of the global market in opiates. In light of the ongoing war in Afghanistan, it is incredible that the United States and other members of the international community involved in the war have not been able to curb the cultivation of opium. The sale of opium to the West is one of the reasons for the Taliban's success. It is ironic that profits generated from this activity are used to fund arms purchases for the Taliban.

The context in which the legislation has been introduced is, therefore, the growing drugs problem, both at an international level and domestically. I am well aware of how communities in my local area have been destroyed by drugs over the years. The Minister of State, Deputy John Curran, will be aware from his area that the use of drugs is a major contributory factor in anti-social behaviour and many other forms of serious criminality in our communities. The drugs problem has become embedded. For example, 75% of those who are sent to our overcrowded jails have drug problems. Moreover, the activities of the Garda are strongly focused on combating drugs because the profile of criminality has changed dramatically over the years.

It is essential that secret or covert surveillance becomes a major tool for law enforcement agencies in acquiring information which, under this legislation, they will be able to use as evidence in court to secure convictions. The purpose of the Bill is to facilitate this process by providing a statutory basis for the conduct of covert surveillance by law enforcement agencies not only in the area of justice, but also by the Defence Forces and Revenue Commissioners. It also provides a formal approval process with which the relevant agencies must comply if the subsequent surveillance is to be deemed legal. It introduces oversight and regulatory safeguards to try to preserve the confidentiality necessary for the successful use of surveillance and provides for the admissibility in criminal proceedings of covertly gathered information.

This legislation gives the authorities powers to plant bugging devices, enter premises and introduce tracking devices. Information gathered in this way may be used in court in the fight against crime. Law abiding citizens and the State must be protected from criminal and subversive threats. As I noted, the use of good policing and proper approaches in earlier years would have allowed us to address the issue sooner. The problem is now out of control and requires the introduction of new tools and mechanisms of this nature to protect citizens and the State. At the same time, the right of law abiding citizens to private enjoyment of their home without State interference and intrusion is paramount. Citizens' rights are strongly protected in the Constitution, which guarantees citizens' right to privacy and personal rights, and in domestic law since the incorporation in law of the European Convention of Human Rights in 2003.

Article 8 of the European Convention on Human Rights upholds very strongly the citizen's right to respect for private and family life, home and correspondence, without interference. The relevant section of Article 8 states everyone has the right to respect for his private and family life, home and correspondence, that there should be no interference by a public authority with the exercise of this right, except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of rights and freedoms of others. It is a comprehensive statement on the protection of the rights and privacy of the individual citizen.

This Bill seeks to balance the intrusive nature of the activity envisaged in it and the trust in many of its provisions and provides safeguards to protect against abuse. For example, prior authorisation for surveillance by a District Court is required and this measure is welcome. Authorisation is provided for a three month basis and a longer period requires a fresh application, all of which is proper and correct. Secure storage of the data and authorised access is required to access that data, which is designed to protect privacy and the other rights of the person involved.

The complaints mechanism to be put in place for citizens and compensation of €5,000 and-or a referral to the Garda Ombudsman Commission where contravention of the surveillance powers occur are provided for and are appropriate. The appointment of a High Court judge is envisaged to oversee the operation of the Bill and make regular reports to the Minister which will be presented on the floor of this House. All such provisions are highly desirable.

However, there are two sections of the Bill which open the door to abuse regarding these new powers. Section 7 makes provision for a superior officer to give approval for surveillance for up to 72 hours without recourse to an application to the District Court. This provision is permitted where, for whatever reason, time is of the essence. It is fairly difficult to imagine a situation whereby an officer would not have access to the courts over a period of 72 hours, which is three full days. It is difficult to justify having a three day provision. A weekend, which is 48 hours, is one thing but 72 hours envisages not just a weekend but virtually half a week where the courts would not be accessible. I would like the Minister to outline the justification for that period.

This proposal is something of a lazy officer's provision, and can be easily abused and used for what we often hear barristers in court call "fishing expeditions". Surveillance may not be required to the same degree or it may not be easy for the particular officer to stand up for evidence that would pass muster in the District Court before a judge to get such covert surveillance.

If one plans to interfere with a person's privacy and home, and trespass and use tracking or bugging devices it is very important the mechanisms in place are foolproof to ensure there is no abuse, because such evidence will subsequently be used in court. That is the intention. This is designed to provide flexibility, but the danger is this is the lazy officer's way out and will be abused.

Section 14, which is described in the explanatory memorandum as a core provision of the Bill, is very worrying. It provides for the admissibility of evidence which has been obtained by means of surveillance, even in circumstances where a law has been breached. We have seen how such issues come up in the courts and the amount of hassle and damage this can do to the process.

The explanatory memorandum, which puts the operation of this section in a stark fashion, states section 14 is a core provision of the Bill. That is a bad sign. It further states the section, "deals with the issue of admissibility of evidence in the narrow and very specific context of evidence obtained by means of surveillance", in other words, evidence obtained under the provisions of this Bill, and it goes on to state:

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/officer to comply with a requirement of an authorisation or written record, is admissible in certain clearly defined circumstances as set out in the section.

It then drives the point home by stating, "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".

This is a dangerous provision to include in the Bill. It is too wide, general and open to question, and is also too open to abuse. If an officer knows, as a last resort, that he or she will be able to present evidence in court, even if they breach the law or authorisation they are given, or do not comply with what they are obliged to do by law, they can proceed as though they had not breached it.

I am concerned about the broad nature of section 14. It seems to be an open-ended invitation for the relevant authorities engaged in the investigation to take shortcuts and become lax in their procedures. If there is facility to do that it will happen and, as time goes by, the procedures will become looser and looser, there will be more breaches of them and the entirety of the legislation will be thrown into disrepute. There will be costly wrangles in the courts. These two areas require tightening up, otherwise I envision a situation whereby the Constitution will be breached, there will be constitutional cases, the European Convention on Human Rights will be infringed and people will go to European as well as domestic courts.

In recent times, we have become aware of the case of Mr. Ciaran Boylan, which I raised in this House and outside it. I understand the Leas-Cheann Comhairle raised it in 2006 and 2007. It is going on for as long as that. It demonstrates the manner in which a law enforcement agency can go astray in its fight against crime and drag the component parts of the criminal justice system into a very unsavoury situation. The improper use of Mr. Boylan, a notorious drug dealer, by members of the Garda in their law enforcement capacity and activities, has embroiled the Director of Public Prosecutions, the courts, the Garda Síochána, the Garda Ombudsman Commission and even the Department of Transport.

If correct procedures were followed and the law was strictly observed, a convicted drug dealer would now not be in possession of an international haulage licence, which he is, and which facilitates the drug importation and possession of which he has already been convicted. Neither would he be free to walk the streets but would instead be serving a minimum sentence of ten years. It is very easy for the proper procedures to be breached, unless the regulations are very tight, even though the best intentions are laid down in law. The result is that the entire criminal justice system comes into disrepute.

See this speech in context