Dermot Ahern (Louth, Fianna Fail)

I thank Deputies for declaring their general support for this Bill and thank the House for taking the legislation relatively quickly. I am pleased that it has received a broad welcome from all sides of the House. I believe the Bill represents a proportionate and balanced response to this problem. It will enable us to give the Garda the tools to engage in electronic surveillance. If this legislation is accepted, it will be possible to ensure that its measures are not used in a way with which most ordinary citizens would be unhappy. That is why certain checks and balances are included in the Bill.

I would like to refer to a number of specific issues that were raised by Members this morning. Deputy Costello expressed his reservations about the section of the Bill that will provide for a 72-hour period of surveillance in urgent cases. He was referring to circumstances in which judicial authorisation will not initially be needed for surveillance of 72 hours. A Bill that was previously proposed by the Labour Party provided for a seven-day period, which would have been much longer than the three-day period set out in the legislation before the House. In 1998, the Law Reform Commission recommended that in urgent cases, surveillance of 14 days should be allowed without authorisation. We have reduced the relevant period from 14 days, as recommended by the Law Reform Commission, to 72 hours in urgent cases. That is an illustration of the attempt we have made to draw up the provisions of this Bill in a proportionate manner.

I fully agree with Deputy Jim O'Keeffe's argument that we should not restrain the type of surveillance that forms part of ordinary policing. That is why this Bill includes definitions of "surveillance" and "surveillance device" that are designed not to bring ordinary surveillance activities within the scope of this legislation. If no device under the ambit of this Bill is used during surveillance, the surveillance in question is not covered by the Bill. Interestingly, Deputy Ó Snodaigh expressed a view that was diametrically opposed to that of Deputy O'Keeffe. As I understand it, he called on the remit of the Bill to be extended so all surveillance - electronic or otherwise - will have to be authorised in line with the terms of this legislation. That would mean that a garda who wanted to follow a suspect down the street would have to get a judicial authorisation for that action, which would be ludicrous. Perhaps I am incorrect, as I did not hear all of Deputy Ó Snodaigh's submission. If my interpretation of his remarks is accurate, they are interesting. I can inform Deputy Jim O'Keeffe, who asked about the forthcoming criminal justice (forensic sampling and evidence) Bill, that we hope to publish the Bill before the end of this session.

I would like to respond to the repeated criticism of my rejection of a previous Fine Gael Private Members' Bill, which attempted to deal with the issue of evidence that is obtained illegally and unconstitutionally. The Bill sought to abolish the exclusionary rule that governs the admissibility of evidence, following on from the decisions of the Director of Public Prosecutions in the cases of Shaw and Kenny. The review group on the balance in the criminal law, which published its report in March 2007, warned against the dangers of adopting what it called a "full-frontal approach" to statutory intervention in the case of the exclusionary rule. Such an approach was advocated in the legislation proposed by Fine Gael, however. People are missing the point of the objectives of section 14 of this legislation. The press statement on this issue that was produced by Fine Gael's justice spokesperson yesterday was totally incorrect. The proposals to which I refer are quite different from those contained in the Private Members' Bill that was proposed by Fine Gael. Section 14 does not propose the abolition of the exclusionary rule, in any shape or form. Equally, it does not seek to address any unlawful conduct of any officer relating to a matter in which surveillance is carried out. We are providing for a narrow exception that relates solely to the procedures set out in this Bill. It is designed to address a specific difficulty. What we propose is not dissimilar to section 27(4) of the Criminal Justice Act 1984 dealing with tape recordings of suspects and the relevant 1987 regulations made thereunder. It is not the same issue and I ask Fine Gael to desist from trying to suggest that it is.

Deputy Rabbitte referred to his party's Private Member's Bill on this subject, published in 2007. We had significant reservations about that Bill because it did not contain specific safeguards for privacy. The Labour Party Bill was based on the Law Reform Commission's proposals of nearly a decade previously but there has been a great deal of case law in the intervening period in the European Court of Human Rights on this issue. It is all very well to eulogise the Labour Party Bill but it was based on proposals dating back as far as 1998 and could not be accepted now, particularly in respect of safeguards.

Deputy Noonan had reservations about the inclusion of reserve members of the Garda Síochána and the Defence Forces in the definition of "relevant person" in section 13. They are excluded from surveillance and surveillance activities but the provision for confidentiality under section 13 covers them in case, in their work as reserves, they accidentally come across any information about these processes. There is no hidden agenda.

Section 5(4) refers to the only form of privilege understood in law, legal professional privilege. It does not extend to concepts of journalistic privilege or communications between spouses.

Deputy Charles Flanagan spoke at length about some aspects of Garda resources, such as Operation Anvil, bail and witness protection. I do not want to re-hash all that has been said but I have said that I have dedicated increased resources to Operation Anvil and the Criminal Assets Bureau, CAB, despite a contracting Exchequer position. Other areas in the Department of Justice, Equality and Law Reform Vote had to suffer but I make no apologies for that because I indicated when I took up office in the Department that I wished to concentrate on the number one priority which was crime.

Several Deputies asked about the other measures that I and the Government are considering. We are in intense discussions with the Attorney General in respect of each of these issues. In light of ongoing intimidation of witnesses and jurors the State must act. Significant evidence on this has come forward. Some Members have told me that they can give clear instances of intimidation which might not be available to the Garda Síochána, which I would welcome.

We propose that the powers available under existing legislation to combat subversive organisations be applied to criminal gangs as much as possible. One element of this is the decision to schedule the criminal organisation offences which would in effect require a declaration that the ordinary courts are inadequate to secure effective administration of justice and preserve public peace and order. This is a significant step and should not be taken lightly. In view of what has happened recently we must indicate clearly that the Oireachtas will act.

I am examining several issues. This is not an exhaustive list and is subject to final vetting and approval by the Attorney General. It includes the offence of participation under the 2006 Act. I think it is section 72. The language in that section makes it extremely difficult to prove participation in a criminal organisation. We are considering that to see whether we can make it easier to ground a prosecution. It is also proposed to create a new offence of directing or controlling a criminal organisation and we aim to put in a maximum sentence of life imprisonment for that. I have had intense discussions on membership with my officials and the Attorney General. We propose a new offence of involvement in criminal activity in association with a criminal organisation with a maximum penalty of 15 years. The third measure we are considering is a proposal to make that offence, the new proposed offence of directing a criminal organisation, and the existing organised crime offences, schedule offences for the purposes of the Offences Against the State Act, to be tried in the Special Criminal Court. I am also proposing that all those criminal organisation offences would be schedule offences under the Criminal Justice Act 2007. This would have the effect of applying sections 25 and 26 of that Act to those offences. Section 25 provides for higher sentences for repeat offences and section 26 provides for post-release supervision similar to that used for sex offenders. If somebody was convicted of one of these serious criminal organisation offences he or she might be charged again if he or she broke the supervision orders made at the sentencing, for example, by associating with known former members of criminal gangs. A fifth proposal is to schedule these criminal gang offences as serious offences within the meaning of the Bail Act 1967, thereby providing for circumstances where the courts may refuse bail.

Members on both sides of the House have expressed their views on opinion evidence which has been fraught with some legal difficulty. The previous Attorney General gave very strong advice during the drafting of the 2006 and 2007 legislation about the difficulty it poses in court without substantial corroborative evidence. After the Shane Geoghegan murder I asked the Attorney General to again review this issue because Members on both sides, particularly Deputy Noonan, raised it. We received similar advice but are considering the possibility of allowing a court to take into account, among other things, expert evidence from a senior member of the Garda Síochána as to the existence of a criminal organisation in determining whether the accused was directing, or participated in, a criminal organisation. That goes some way to address the issue of opinion evidence. I must emphasise however that we need corroborative evidence all the time to back this up but the courts have said that they will not convict somebody on the opinion of one person. The surveillance legislation when passed will be an extremely important tool in the panoply of measures available to the gardaí to produce corroborative evidence.

We are also considering that in respect of all organised crime offences the courts would be able to draw inferences from the failure to answer questions, or to account for movements, actions, activities or associations. To some extent, these provisions are already contained in the Criminal Justice Act 2007, but we need to extend them to the new offences we are proposing.

The eighth issue we are looking at concerns the simplification of the process regarding the extension of time for questioning. There has been some suggestion that we would extend the period of seven days, which is the ultimate period. I am not in favour of that personally. However, together with my officials and in conjunction with the Garda Síochána, I have examined the issue of how we can simplify the procedures in order to reduce the amount of Garda resources which are directed during a very important time of investigation. I have to accept that ultimately we are talking about people's liberty and it is important to ensure that if people are being detained for a further period, the proper proofs must be entered into as to why that is necessary. Obviously it is subject to judicial decision, but at the same time we must also be conscious that gardaí during that period are involved in a very intensive investigation. Therefore, we are looking at simplifying the procedure and also ensuring that the hearings themselves concerning the extension of time cannot be used to obtain information or to put information into a relatively public domain that might in fact prejudice the Garda investigation.

Given the fact that we are worried about the intimidation of witnesses and jurors, a ninth issue we are looking at is the possibility of increasing the present maximum sentence of ten years to 15. A tenth issue concerns the penalty for the existing participation offence, which we are examining with a view to increasing the penalty from five to 15 years. I think it is in section 72 of the 2006 Act.

Deputy Rabbitte and others asked me to indicate what issues we are examining. We are looking at a number of issues intensely in the context of the Criminal Justice (Amendment) Bill 2009. Substantial work has already been carried out on that legislation. I hope to bring proposals to Government within the next couple of weeks following which I will ask the Oireachtas to examine the legislation at an early opportunity.

I am amenable to some of the suggestions that Deputy Charles Flanagan has made, including his party's proposals on sentencing. I am examining that matter.

Coming back to the Bill before us, it is proportionate, balanced and subject to authorisation in all but urgent cases. All authorisation cases, whether judicial or non-judicial, are subject to oversight by a High Court judge. When available, the report on overall surveillance activity is sent to the Taoiseach as well as being laid before both Houses of the Oireachtas.

See this speech in context