Seán Connick (Wexford, Fianna Fail)

I would like to start by offering my congratulations to Deputy Dara Calleary on his appointment as Minister of State. I wish him well in his new role and I am sure he will do us proud.

The surveillance of criminals is one of the cornerstones of good police work. The recent increase in gangland crime and the renewal of terrorist activity has tested the ability of the Garda Síochána to ensure a safe and secure society. I listened with interest to the contributions of my colleagues on the other side of the House. Deputy Durkan is not behind the door on the Order of Business every morning in reminding us of our shortcomings as regards the number of Bills being presented. I commend him on his ongoing efforts. We are bringing forward a number of Bills and I am sure he will be gracious enough to acknowledge this and that we are doing our best to move forward these Bills to create a fairer and better society.

The past few years have seen significant advances in the range of surveillance equipment available to the police forces and intelligency agencies internationally. Many of these advances are as a result of the reaction of the United States to the terrorist actions perpetrated on 11 September 2001, and since then billions of euro have been spent world-wide by governments in an effort to increase the capabilities of surveillance equipment.

The Joint Committee on Justice, Equality, Defence and Women's Rights heard a very interesting presentation this morning about European expenditure on security. The debate on security issues can be difficult as many people regard security as a dirty business, but it does not have to be like that. The biggest aspect of security is the protection of the citizen and the State. There are growing job opportunities in the continuing development of the security industry here in Ireland. I would prefer to see an informed rather than a reactionary debate on security. The European Union has a large budget and continues to invest heavily in the security of the Union. This may present an opportunity for Ireland to get its slice of the pie in terms of shared ideas and expertise both from the agricultural sector and as a result of our experience with the Troubles in the North and how the peace process was dealt with. There are many areas in which Ireland could contribute to the debate on global and European security.

I note the increased sharing of information in recent weeks and days with regard to the pandemic. It is accepted now that a swine flu pandemic is inevitable. I understand it is as a result of the high level of security both in the United States and in the EU that we are in a position to react quickly to the threat. Security is not always about the bad things but rather it is also about many good things. I acknowledge abuses can occur but it is hoped that security will be put in place to prevent such abuses occurring. We should seek out the opportunities for Ireland in this sector such as job creation and the development of the industry.

In Ireland, the range of surveillance equipment available to the Garda Síochána has also greatly improved over that time and the Garda national surveillance unit has proven particularly effective in the use of this equipment. Some of the most important victories against organised crime in Ireland in recent years, such as the arrest of leading criminals and large drug seizures, have come about because of the use of electronic surveillance, especially the monitoring of mobile phones. However, until now the Garda Síochána has been able to use evidence gathered in this manner only as intelligence and an aid to preventing or investigating crime and has not been able to present in court the evidence gathered through electronic surveillance. The previous speaker alluded to the fact that we have had many gangland killings. Almost 172 people have been killed but there have been only 19 convictions. We all know the Sunday newspaper that will tell us within days or hours the names and identities of the individuals who have perpetrated these crimes. We must ensure our courts are active and this Bill will give us the opportunity to pursue these individuals and ensure they do not get away nor have the freedom they have enjoyed in recent years. If they commit crime they should do the time.

The Criminal Justice (Surveillance) Bill is a significant advance in the fight against subversion and organised crime. For the first time it will give a legal basis for the administration of electronic surveillance by the Garda Síochána, the Revenue Commissioners and the Defence Forces and it will provide a legal standing to allow the Garda Síochána to present evidence in court gathered through electronic surveillance. This Bill will allow Ireland follow the example of many other western countries, including many other EU member countries, in using electronic surveillance to convict criminals in court. Similar legislation has been in operation in the United States for decades and has proven extremely effective in convicting major players in organised crime in that country. Many other countries such as Britain, Australia, Sweden and Norway, have similar legislation on their Statute Books.

The publication of this Bill has my strong support and I believe the widespread support it has received and the speed with which this House is debating it show a recognition that it is important to have this Bill enacted as soon as possible. As far back as 1998, the Law Reform Commission called for the introduction of a "flexible, workable system of authorisations" for the surveillance of criminals. The LRC said at the time that the enforcement of law would be prejudiced if the Garda Síochána did not have a strong legal basis for surveillance.

The Criminal Justice (Surveillance) Bill gives this legal basis to the Garda Síochána and strikes a fine balance between the rights of an individual to privacy and the needs of the Garda Síochána to use every legal means at its disposal to combat organised crime. In a court case in 1987, the then President of the High Court, Mr. Justice Liam Hamilton, said that the right to privacy "...is not an unqualified right. Its exercise may be restricted by the constitutional rights of others, or by the requirement of the common good, and is subject to the requirements of public order. This Bill is a recognition of both the right to privacy of individuals as well as the requirements of the common good. There is nothing contained in this Bill which would pose a threat to the right to privacy of any law-abiding citizen.

A number of years ago the European Commission on Human Rights found that the use of listening devices was not legally binding and could not be used as evidence if there was not a statutory basis for their use. When this Bill is enacted we will now have that statutory basis for their use in Ireland. This Bill provides the means to allow the Garda Síochána to secure evidence that is constitutional.

One aspect of the Bill I welcome is that it sets out a detailed process for the Garda Síochána, the Defence Forces and the Revenue Commissioners to gather electronic surveillance in a legal manner which can be used as evidence in court. Authorisation must be granted for surveillance and the person granting it must be satisfied that the surveillance is justified. The authorisation for surveillance will be normally granted by a District Court judge except in circumstances of extreme urgency. In cases of extreme urgency, a senior officer of the Garda Síochána, the Defence Forces or the Revenue Commissioners, can grant an authorisation where he or she is satisfied that all the requirements necessary for authorisation by a judge are fulfilled, that authorisation would be granted by a judge and that the circumstances are urgent, such as the danger that a suspect would abscond or commit a crime or that evidence would be lost. The time factor is critical. In cases where an authorisation is granted because of extreme urgency, this authorisation will last for a maximum of 72 hours after which authorisation must be obtained from a judge if the surveillance is to continue. The extreme urgency mechanism is important and I am glad it has been included in the Bill. Many other jurisdictions, including Britain, have allowances made for extreme urgency in their legislation. In Britain, authorisation from a sitting judge is required unless it is not "reasonably practicable" and in Sweden, where surveillance requires a licence but an exemption is given in urgent cases.

I previously referred to the right to privacy of an individual citizen. This Bill contains a number of safeguards to protect individuals from undue investigations into their private affairs. The Bill allows for the appointment of a referee who will have the power to investigate the operation of the surveillance measures contained in the Bill if an individual believes he or she is the subject of surveillance. If the referee is of the view there has been a "relevant contravention" of the terms of the Bill, he has the power to rescind the authorisation for surveillance, have the evidence destroyed, award a compensatory payment of up to €5,000 or have the matter referred to the Garda Ombudsman or to the Ministers for Defence or Finance.

The Bill also gives a range of powers to the referee to ensure that his or her position cannot be used by an individual to discover whether he or she is actually the subject of a surveillance operation. When the referee investigates a complaint which he or she finds to be unfounded, he or she will inform the complainant that there has been no breach of the provisions of the Bill in his or her case. This simply informs the complainant that he or she is not the subject of surveillance which contravenes the Bill. It does not actually say whether he or she is the subject of surveillance. Even in cases where the referee finds that surveillance is in contravention of the Bill, the referee has an obligation not to inform the complainant if he or she is of the opinion it would not be in the public interest to do so.

The Bill effectively puts the public interest above the rights of the complainant. These safeguards are important, because without them a criminal could use the position of the referee to discover whether a surveillance operation is taking place and this would undermine the workings of the surveillance. A further protection afforded under this Bill is the appointment of a High Court judge who will monitor the implementation of this Bill and act in a supervisory capacity. This judge will report directly to the Taoiseach at least once a year on the operation of the Bill and his or her reports will help to guide Government policy in the future.

Another aspect of the Bill to be welcomed is that the admissibility of evidence in court is clearly legislated for. The result of this Bill will be that evidence gathered through electronic surveillance will be admissible in Irish courts for the first time and the procedures outlined in the Bill will ensure the legality of this evidence. Evidence obtained through electronic surveillance will be admissible if it has been obtained as the result of an authorisation for surveillance. The Bill also allows evidence to be admissible even in cases where there was an error in the documents relating to the surveillance if the error was inadvertent and the evidence would serve the interests of justice. Evidence can also be admissible even when the officer carrying out the surveillance failed to comply with all the requirements of the authorisation if the officer acted in good faith, the failure was inadvertent and the evidence would serve the interests of justice. These sections of the Bill close off some very important loopholes which could have jeopardised an important investigation and allowed a major criminal figure to walk free from court due to a small technicality.

The Criminal Justice (Surveillance) Bill also legislates for the use of tracking devices as opposed to more regular forms of surveillance equipment. Evidence obtained by tracking the location of mobile phones has been the key piece of evidence in a number of high profile criminal cases in recent years. Mobile phone records showing that the suspect was at the scene of the crime, or was in the same location as other suspects before the crime took place, have been the difference between guilty and not guilty verdicts. Expanding the technology used here and allowing gardaí to use tracking equipment will greatly help their ability to prevent and solve major crimes.

The most important function of this Bill is to clarify how electronic surveillance can be carried out in a legal manner and how the resultant evidence gathered can be introduced into the courts. There are many other forms of communication on which we do not have clarification and which should be examined with a view to putting their use and the evidence they produce on a statutory footing. Evidence gained from surveillance of live Internet activity, Internet telephone services such as Skype, webmail services and CCTV could provide useful evidence for criminal prosecutions.

I am particularly familiar with CCTV because I have been involved in efforts to secure funding through the RAPID process to place CCTV cameras in New Ross. The Leas-Cheann Comhairle was involved and is a member of the joint policing committee, JPC, in New Ross with me. We have worked on these cases and are very familiar with the importance of that to all our towns and to the protection of the citizens on our streets and in our public areas.

Many communities are facing serious problems with antisocial behaviour and the streets and graveyards of many towns are now no-go areas at certain times day and night. CCTV cameras would be a useful deterrent against anti-social behaviour and would help to reclaim our streets for law abiding citizens. They could also provide valuable information to help bring criminal charges or convictions. However, I would hate to see a situation arise where evidence gained through CCTV footage or some other form of surveillance such as monitoring a Skype telephone call could be ruled inadmissible in court because of a technicality or oversight. We should consider an overall reform of the law on surveillance, not just electronic surveillance, which would not only put current forms of surveillance on a clear statutory footing but would also give us the power to legally place surveillance on future forms of communications without having to return to the House for more legislation.

I will briefly return to the subject of CCTV. One of its great benefits would be to help prevent physical attacks on emergency services personnel. I was glad to hear the Minister for Justice, Equality and Law Reform outline a number of his proposals for future legislative changes in his speech to the House yesterday. I urge him, as part of a future legislative package, to introduce a specific offence of attacking a member of the emergency services. Emergency services personnel, be they firefighters, ambulance personnel or gardaí, carry out a vital role in all our communities. They are being subjected to serious physical attacks while they are carrying out their jobs and I would like to see this recognised as a stand-alone offence which carries a severe penalty. We must send a clear message that these attacks are attacks, not just on the emergency services, but on the whole of society and that we will not tolerate them under any circumstances.

I commend the Minister, Deputy Dermot Ahern, on introducing the Criminal Justice (Surveillance) Bill to the House and I believe its enactment will be of great assistance to gardaí in their day to day duty of protecting society. This Bill is an important move in the fight against terrorists, tackling gangland crime and taking on the major figures in organised crime. Combined with the measures contained in the recent Criminal Justice Acts, it will give gardaí significant powers to deal with people who, unfortunately, are a plague on our society.

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