Dáil debates

Thursday, 30 April 2009

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

 

12:00 pm

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)

All law abiding citizens will support, in principle, legislation, as cited in the Long Title to the Bill, "to provide for surveillance in connection with the investigation of arrestable offences, the prevention of suspected arrestable offences and the safeguarding of the State against subversive and terrorist threats". Everyone is in favour of the principle but my concern is that the devil may be in the detail. It is important, therefore, that the Bill navigate a passage among the restrictions and limitations in the fundamental rights articles of the Constitution, the European Convention on Human Rights - particularly Article 8 providing for the right to privacy - and the precedents laid down by Supreme Court decisions, particularly regarding the exclusionary rule. While I support the view that anything we can do to put drugs barons, crooks and criminals behind bars, it is important that it is done properly. My comments on the Bill are related to that concern because otherwise, convictions will be set aside and the criminals will not go to prison.

The Garda has always engaged in surveillance, and rightly so. Surveillance is a fundamental job of a police force. We constantly demand intelligence led policing and surveillance is a part of that. There is a national surveillance unit in the Garda Síochána. In analogy to the Hippocratic oath, in passing legislation we must first take care to do no harm. I hope the present surveillance operations will not be limited or reduced by the Bill.

Section 1 defines surveillance as the "monitoring, observing, listening to or making a recording of a particular person or group of persons or their movements, activities and communications". That is probably what is taught to Garda recruits on their first day in Templemore. It is a basic part of the job of a garda and seems to make sense. However, section 3 states "a member of the Garda Síochána, a member of the Defence Forces or an officer of the Revenue Commissioners shall carry out surveillance only in accordance with a valid authorisation [that would be under section 4] or an approval granted in accordance with section 7 or 8 ". That is clear and specific. Will normal surveillance will be stopped as a consequence of that very clear and specific section? I am worried about the framing of section 3 and I urge the experts in the Office of the Parliamentary Counsel and the Office of the Attorney General to have another look at it.

Other provisions in the Bill may get around what appears to be a blanket restriction on any surveillance, other than with an authorisation granted under sections 7 or 8, or a valid authorisation. Subsection 2(2) states: "Nothing in this Act shall render unlawful any activity that would otherwise be lawful". This could be used as a general point. I do not know. There may be a saver in subsection 14(2), which states: "Nothing in this Act is to be construed as prejudicing the admissibility of information or material obtained otherwise than as a result of surveillance carried out under an authorisation or under an approval granted in accordance with section 7 or 8 ".

One could argue that what seems clear and specific in section 3 could be got around. My main concern is that we may be creating a lawyers' picnic here. We may find lawyers defending serious criminals and, while merely doing their job, using the provisions of the Bill to have certain evidence excluded from the court. I raise this matter not by way of criticism but in a genuine effort to point out a possible route around the provisions of the legislation which could cause severe havoc and damage to the normal Garda activities of surveillance and the giving of evidence. I suggest that this point be looked at carefully to see if a recasting or reframing of the Bill might be necessary.

Every law abiding citizen will be supportive of legislation which deals with the problem of serious crime. While the number of indictable offences - now referred to as headline offences - has not increased substantially, the violence component within the figures has increased. I had a major difference of opinion with a previous Minister for Justice, Equality and Law Reform, the former Deputy Michael McDowell, on this point. A number of journalists also seem to think one should simply accept the figures as they are. When dealing with figures I operate on the basis that there are lies, damned lies and statistics. To get a picture of what is happening one must go behind the figures.

The serious violence component of the crime statistics has increased substantially.

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