Clare Daly (Dublin Fingal, Independent) | Oireachtas source

I move amendment No. 3:

In page 6, between lines 12 and 13, to insert the following:

“8. Section 6B of the Act is amended by the insertion of the following subsections after subsection (1):

“(1A) In imposing the conditions in subparagraphs (i) to (iii) of section 6B the Court shall have regard to the following:

(a) that the type and modalities of tagging are proportionate to the offences alleged in terms of duration and intrusiveness;

(b) the age, disability or other relevant personal circumstances of the person upon whom the conditions are imposed; and

(c) that the person upon whom the conditions are imposed shall not be confined solely to a place of residence for so long as those conditions are imposed.

(1B) All data gathered as result of the imposition of the conditions in subparagraphs (i) to (iii) of section 6B shall be gathered, stored and processed in compliance with the Data Protection Acts and shall not be used for any purpose other than the following:

(a) monitoring of compliance with conditions imposed under subparagraphs (i) and (iv) of section 6(1)(b) while those conditions are imposed; and

(b) implementing the relevant provisions of section 6C.”.”.

I take these amendments seriously. In some ways they might be seen as somewhat technical and heavy going but they are important and touch on a number of boxes. They deal with electronic monitoring, which is being put forward as an alternative to a person being incarcerated. While we welcome that, it is very important that there are guidelines on the use of electronic monitoring. That is not only my concern as the European courts and data protection issues require us to do that. I accept that electronic monitoring is a useful tool in the criminal justice system. In Demark, for example, 60% of custodial sentences under six months are converted to electronic monitoring and intense supervision. In Belgium, any prison sentence of less than three years is automatically commuted to electronic tagging. I see a role for it and do not suggest it should not be used but it needs to be controlled carefully. The purpose of my amendments is to beef up the safeguards.

The wording of paragraph (a) is largely taken from the Council of Europe's 2014 recommendations on electronic monitoring. The Council of Europe advises that it is necessary that a decision to electronically tag somebody on bail takes into account the offence it is alleged that the person committed. While I have no doubt that judges would use their discretion and would apply sanctions fairly, at the same time we must tighten up provisions around duration because if we do not, delays could mean someone being tagged for a very long time that would be disproportionate to the crime. Let us face it, the people being tagged here are people who have not actually been convicted of any crime. The points being made about data protection are very important. My amendment proposes to cover a couple of things. First, I want to ensure that all of the data gathered as part of electronic monitoring is stored and processed in accordance with Data Protection Acts, and second, that the data are only used for specific purposes, namely, monitoring the compliance of the conditions imposed as part of the electronic monitoring.

Amendment No. 4 provides that the monitoring of people wearing tags will henceforth be done on a non-commercial, not-for-profit basis. That is to prevent private security firms getting in on the gig to try and make a killing out of it. I was surprised that there were no specific explicit safeguards on data protection either in this Bill or in the Bail Act 1997 in this day and age and in particular given the uses to which data gathered can be put in cases where tags are attached.

It is particularly surprising we have not explicitly stated it when the Council of Europe recommendation on the implementation of electronic monitoring explicitly states the use of data collected through electronic monitoring should be regulated by law. That is what I am seeking to do here. We live in a world where data are big business and people pay big money for them. A person's data, particularly in these private matters, should only be used for the purposes for which they have been gathered. If we do not do this and include these provisions, we are likely to run into problems with Article 8 of the European Convention on Human Rights, which gives strong protections to the fundamental right to privacy. It says we need a sound framework of specific principles and standards protecting the rights of individuals. I had hoped the amendment would be accepted. I do not see it as being particularly controversial unless we are trying to leave the door open to private commercial operators to make big bucks from the data being collected. I do not really get it.

On Committee Stage, Deputies from Fine Gael said my attempt to put electronic monitoring on a not-for-profit basis was ideological. That is funny because it is exactly what the Council of Europe states the issue is. In its Standards and Ethics in Electronic Monitoring handbook, it says "Government decisions to use commercial organisations to deliver [electronic monitoring] are as likely to be taken on ideological grounds as on practical grounds." There have been some problems in other states where services were being provided privately but subsequently had to be brought in under the public domain. I am trying to ensure from the start that there would not be anybody profiting from this type of procedure.

I spoke on Committee Stage about the German model, which is based on de-escalation and in so far as possible, helping offenders not to breach bail conditions. That should be the direction in which we go. In that sense, the monitoring of tagging should be done by professional people such as social workers and people who can go in and intervene to de-escalate, not to catch people out and have them whipped off to prison. We are trying to achieve a position where that would not happen. There is a greater danger of that happening if it was a private for-profit operator. I see these amendments as quite important.

See this speech in context