Dermot Ahern (Louth, Fianna Fail)

It would be unfair to say that all members of the media or the music profession indulge. However, I agree with his overall sentiment that some people fuel demand and clearly people are filling that gap. It is the job of all of us to ensure that the proper legislation is in place and sufficient resources are given to the Garda, the Defence Forces, the Revenue Commissioners and the Customs and Excise to stamp it out as much as possible.

I refer to the proposed amendments of which there are several and I have a long explanatory note. It is best to stick to the note because it answers many of the questions raised. Some of these issues were raised on Committee Stage and were examined. I refer to amendment Nos. 13 and 23 moved by Deputy Rabbitte. We examined these and consulted with the Office of the Attorney General. The belief was the text in sections 5(7) and 8(5) is already broadly drafted and deliberately wide enough to encompass different places and ways in which surveillance may be initiated. To use the words "installing or operating a device", the term proposed in the amendment, would be more restrictive and could, therefore, have the inadvertent effect of narrowing the scope of the provision by suggesting an officer may only enter private property when he is installing or operating a device. Otherwise, by implication, if he wishes to do something other than install or operate, he would have no right of entry. This is the view of the Parliamentary Counsel.

Similarly, the definition of "place" in the interpretation section is sufficiently broad to include private property. A judge already has discretion under the Bill to attach conditions to the authorisation as does a senior officer who issues an approval under sections 7 or 8. Earlier, Deputy Ó Snodaigh referred to tracking devices and suggested that other than someone making a complaint there is no oversight for tracking devices. This is not correct and there is provision to have oversight of all surveillance including tracking devices and non-tracking devices in the legislation. This is covered in section 12.

The procedure governing the right of entry to a place, whether private property or otherwise, and the initiation of surveillance in whatever form would be the subject of conditions imposed by a judge when issuing an approval under sections 7 or 8. My view, supported by the Office of the Attorney General, is that the text is sufficiently broad and already encompasses the Deputy's two proposals.

I refer to Deputy Ó Snodaigh's amendments Nos. 17, 18, 24 and 25 which seek to provide for the inclusion of additional information in the written records of approval given by superior officers under sections 7 or 8 and to produce a written record of any variation to approvals given under the sections. Sections 7 and 8 already provide for approvals of surveillance in cases of urgency and for the use of tracking devices respectively. Judicial authorisation is not required. Instead a superior officer of the relevant agency must approve any such action. Under the legislation the officer must operate and determine whether it is necessary to use such instruments based on the criteria for a judge to give authorisation for a non-tracking device. He must then make a written record of the approval granted. It must provide details of the facts pertinent to the approval including such practical details as the type of device used, the subject of surveillance, the duration of the surveillance and any conditions attached. The written record is not intended as the basis on which to grant an approval. The justification for the request and the type of device envisaged will be included in the application for approval. Section 7 would only apply in cases of extreme urgency and in which it would be not operationally practical to apply for a judicial authorisation. I do not believe the additional information proposed by the Deputy is appropriate in this context.

With regard to written records and reports, provision is made in both sections for the superior officer granting the approval to make a report as soon as possible and, in any case, not later than seven days after the surveillance concerned has been completed, in which he or she must specify the grounds on which the approval was granted. This would, by its very nature, include details of any variation sought or granted and such a report must be made by a Garda officer of the rank of at least assistant commissioner, or a similar rank in the other two organisations.

I refer to Deputy Ó Snodaigh's amendments Nos. 19 and 26, which provide that reports made in the case of every approval granted under section 7 or 8 should also be made to the designated judge. The function of the designated judge is to keep under review the operations of sections 4 to 8. The judge may investigate any case in which an authorisation or approval has been granted, varied or renewed and, to this end, has access to all written records of approvals, reports and other relevant documents. I do not believe the requirement whereby a report of every approval granted should be furnished to the designated judge is appropriate nor do I believe it would be operationally efficient. The system for the review and the requirements to provide information to the designated judge, set out in section 13, are based on similar provisions in the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993. The legislation is based on the 1993 Act because it has been in operation for more than 15 years and the oversight provision is considered efficient and effective.

I refer to Deputy Ó Snodaigh's amendment No. 20, which provides for the deletion of section 8 dealing with tracking devices in its entirety. I further refer to amendment Nos. 21, 22 and 27 which propose to reduce the four month maximum duration provision to three months and to amend section 4(5)(a) which a device considered for use should be the least intrusive means available when making the application for the use of a tracking device.

The effect of amendment No. 20, that is, the deletion of section 8, would be to make the use of tracking devices by the Garda Síochána subject to judicial authorisation rather than the system of approval currently provided for in the Bill. The use of tracking devices is regarded as a less intrusive means of surveillance to other surveillance devices. Tracking devices are defined for the purposes of the Bill as devices which provide information regarding the location of a person, vehicle or thing. In providing for a system of approval rather than authorisation the Bill seeks to achieve a balance between the necessity for fast action in the placing of tracking devices and the provision of an effective regulatory framework for their use. It is subject to oversight as per section 13. Tracking devices monitor the movements of persons, vehicles or things. The opportunity for and timing of their placement is critical if they are to be used successfully. A tracking device can be attached to a package, for example, a suspected drugs shipment as it arrives in port or to a vehicle. In many cases its placement will be required at short notice otherwise the opportunity to prevent or solve a crime can be lost because the vehicle or package will have moved on. As with approval for surveillance in cases of urgency, it is imperative that the Bill provides for an efficient and practical system which can be used by the Garda Síochána and which does not result in unnecessary delay while a court application is being sought. Such a delay might hinder or jeopardise the investigation. As a counter-balance, the Bill provides for a stringent system of control for the use of tracking devices which includes rules on record keeping and reporting where such an approval is given.

In the case of amendments Nos. 21 and 27, I appreciate the Deputy's concerns about the period of four months but if considered necessary, the Minister may, by regulation, and in the interests of the protection of the privacy and other rights of a person and other issues such as the security of the State, be given the means to review that period of four months. We will keep this provision under review. The discussions with the Garda Síochána indicate that a period of four months is not unreasonable for the purpose and use of tracking devices. The use of a tracking device is regarded as a less intrusive means of surveillance than other surveillance devices and therefore it is not appropriate it should be included in the matters to which a superior officer would have regard when considering whether to grant an approval. While I understand some of the sentiments expressed by Members and while I understand the thinking behind Deputy Rabbitte's amendments, that he is trying to assist in suggesting that it be for the purpose of installing or operating, our strong advice is that if we are to restrict it to the issue of installing and operating, it would inadvertently restrict the Garda Síochána in the operation of the devices.

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