Dáil debates

Wednesday, 29 April 2009

Criminal Justice (Surveillance) Bill 2009: Second Stage


12:00 pm

Photo of Dermot AhernDermot Ahern (Minister, Department of Justice, Equality and Law Reform; Louth, Fianna Fail)
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I move: "That the Bill be now read a Second Time."

I am pleased to open the Second Stage debate on the Criminal Justice (Surveillance) Bill 2009. It is a mark of the importance of the Bill that the debate on it in the Oireachtas has commenced so soon after its publication and presentation to this House. The primary purpose of the legislation is to facilitate the use in evidence of material gained by means of secret surveillance in criminal proceedings. At the same time, the Bill will ensure that the encroachment on certain rights relating to personal privacy and privacy of property, particularly a dwelling, which this entails is limited and proportionate. It deals with these objectives in two ways. First, the Bill provides for the first time a basis in law for secret surveillance by the organs of the State, principally the Garda Síochána in its role as the primary law enforcement and security agency of the State. The Defence Forces are included because of their parallel responsibility in protecting the security of the State, mainly against threats posed by subversives and international terrorism. The Revenue Commissioners have a frontline role in protecting the financial interests of the State and the European Union and guarding against the illegal importation of drugs and firearms. It is easy to see how the interests of these agencies may coincide In the case of joint operations by the Garda and the Revenue Commissioners, money laundering and tax evasion are targeted. That is a key element in the fight against organised and subversive crime. Second, the Bill sets out the rules that will apply to the admissibility of that evidence.

As the Garda Commissioner said at the launch of the Bill on 17 April, surveillance is as old as policing. It takes many forms, the simplest of which is keeping a track on a person's movements on foot or in a car, or using binoculars, a camera or CCTV in public places. Clearly, this Bill is not about such forms of surveillance. The area of electronic surveillance, such as the interception of telecommunications, is the subject of the Interception of Postal Packets and Telecommunications (Messages) Act 1993. Secret electronic surveillance devices, which are specifically designed to eavesdrop, film, monitor movements and record information, are being increasingly used in the 21st century. This Bill seeks to regulate the use of such devices by the agencies concerned. As secret surveillance is invasive and intrusive, the principles of the Constitution and the European Convention on Human Rights must be considered before any interference with privacy rights can be contemplated. It is generally accepted that in a democratic society, a state may exercise special powers denied to ordinary citizens in certain circumstances and in the common interest. The right to privacy, which may be interfered with in certain circumstances and subject to certain safeguards like those set out in the Bill, is a case in point. This area was examined in detail by the Law Reform Commission in its 1996 consultation paper and again in its 1998 report, Privacy: Surveillance and the Interception of Communications.

Another area that is protected under the Constitution and the European Convention on Human Rights is the right to a fair trial and the associated evidential issues, such as admissibility and disclosure of evidence. These matters are dealt with in the Bill. As I said at the outset, this legislation is designed to facilitate the use in evidence of information and material obtained by secret surveillance. These matters have been carefully considered.

The legislation has been drafted with the relevant principles in mind. I believe we have struck the correct balance in the Bill between the competing interests of privacy and due process on the one hand, and the protection of people, the prevention of crime and the security elements on the other hand. This is reflected in the fact that the Bill has received a general welcome from all sides in this House and from the various NGOs with a particular interest in this area. The Garda has been reluctant to use evidence of this nature in court, mainly for legal and operational reasons, but that policy has now changed. In the opinion of the Garda Commissioner, the changing nature of crime, particularly the growth of organised and ruthless gangs, requires the security response to be stepped up. The threat to society and the integrity and effectiveness of the criminal justice system that is posed by these gangs requires a corresponding robust legal response. I refer in particular to the attacks on ordinary people going about their daily lives.

The use of sophisticated surveillance devices is an essential tool in the fight against serious crime in many jurisdictions. It provides tactical and strategic information for various agencies in their respective fields of operation and facilitates effective cross-agency co-operation, as required. It delivers real-time intelligence on the plans and actions of criminals, subversives, terrorists and other sources. The use of forms of surveillance allows various agencies to disrupt the plans and frustrate the actions of such people. It can identify the perpetrators and facilitate their arrest. It can reveal the existence of new sources, from which a broader understanding of the threat posed by criminals and others can be assessed. Accordingly, preventive strategies can be developed by agencies. The use of secret surveillance after a crime has been committed can lead to the arrest of the perpetrators. It can also assist with the recovery of the proceeds of crime and help to unravel any related money-laundering operations. Crucially, surveillance can prevent loss of life. It is of inestimable value in dealing with ransom cases and crimes of revenge and retribution within the criminal community.

I wish to outline the main provisions of the Bill in a general way. Crucially, it will include strong checks and balances in the regulatory regime that governs the use of surveillance. In nearly all cases, the use of surveillance devices will be subject to an authorisation issued by a judge of the District Court, on foot of an application based on specific conditions from a superior officer of the relevant agency. Authorisations will be issued for a period of up to three months and will be renewable on application to the court for further periods of up to three months. In the case of the Garda Síochána, applications will be made by a member not below the rank of superintendent. In the case of the Defence Forces, the applicant will be a member not below the rank of colonel. The appropriate grade in the Revenue Commissioners will be principal officer. In applying for an authorisation, the officer concerned must believe that the surveillance is the least intrusive means necessary and that it is proportionate to its objective of investigating or preventing serious crime.

The Bill allows for two exceptions to be made to the requirement for judicial authorisation to initiate surveillance. The first of these arises in cases of extreme urgency where there is a likelihood of a person escaping justice, where evidence is likely to be destroyed or where there is a risk to the security of the State if immediate action is not taken. The limitation to 72 hours of an approval for the use of surveillance in situations of this nature underpins the requirement that emergency approvals will be used in limited circumstances. Any extension of the time for surveillance beyond the 72-hour period must be authorised by a judge. The second exception concerns the use of tracking devices, the purpose of which is to provide information on the location of a person, place or thing. An approval by a superior officer for the use of such a device is necessary. Such approvals can extend to a maximum of four months. The Bill provides that the Minister for Justice, Equality and Law Reform may make regulations prescribing a period of less than four months to protect the privacy rights of persons in the interest of the security of the State of the detection and prevention of crime.

The superior officers who grant approvals will be required to make a report on the approval to include a summary of the results of the surveillance engaged in to an officer at a senior level within seven days. This will be to an assistant commissioner in the case of the Garda and to an officer of equivalent seniority of rank in the other agencies governed by the Bill.

A key element of the Bill is its facilitation of the use of surveillance material as evidence in criminal proceedings. It provides for the admissibility of material obtained lawfully under the Act. It also makes provision that where there has been an inadvertent error, omission or failure to fulfil the requirements of the Act, evidence may be admissible if the court, having regard to particular matters set out in the Bill, finds that it is in the interests of justice to do so.

The Bill also provides for a complaints procedure where a person who believes that he or she has been subjected to surveillance may complain to the existing complaints referee Judge Carroll Moran, of the Circuit Court who adjudicates on complaints under the 1993 Interception Act. He is empowered to investigate the matter and he may order certain actions to be taken if a breach of the Act is discovered. This may include the quashing of the surveillance authorisation involved or a recommendation for the payment of a compensatory amount up to €5,000 to the complainant.

Similar to the 1993 Act, the operation of the surveillance legislation will be subject to the oversight of a designated High Court judge, who will report on the operation of the legislation in respect of authorised and approved surveillance to the Taoiseach, on at least an annual basis. This will be a separate appointment by the President of the High Court. The report will be laid before both Houses of the Oireachtas. This procedure adds to the safeguards already outlined in the Bill regarding the protection of privacy and other rights. The complaints referee and the designated judge will have full access to all materials they require regarding the surveillance operation.

I will now set out more fully the provisions of the Bill. Section 1 deals with definitions, several of which are worth explaining further. First, in defining member of the Defence Forces and member of the Garda Síochána for the purposes of surveillance under the Bill, members of the respective reserve forces are excluded. Any powers of surveillance granted to the Garda or the Defence Forces are not granted to members of their respective reserves. Second, revenue offences are defined for the purpose of the Bill as arrestable offences under specific Acts primarily dealing with tax fraud and smuggling. Surveillance powers of the Revenue Commissioners under this Bill are restricted to these offences. Furthermore, the Bill defines surveillance as monitoring, observing, listening to or making recordings of persons, places or things by or with the assistance of surveillance devices. It does not include situations in which persons are followed or observed without the use of surveillance devices. The Bill defines such surveillance devices as apparatus designed or adapted for use in surveillance but it specifically excludes certain devices in certain circumstances such as devices designed to improve night vision where the image is not being recorded, CCTV and cameras where they are used to photograph persons in places to which the public has access.

Sections 2 and 3 provide that the Bill applies to surveillance carried out by the Garda Síochána, Defence Forces and the Revenue Commissioners and that any such surveillance may be carried out only in accordance with the Act. Nothing in the Act will render unlawful any activity which would otherwise be lawful. An example in this regard is the provision in the 1984 Criminal Justice Act and the corresponding 1987 regulations for the tape recording of interviews with suspects.

Section 4 deals with applications for authorisations to conduct surveillance. It provides criteria which must be satisfied before an application can be made. In the case of the Garda Síochána, surveillance can be sought as part of an operation concerning an arrestable offence, to prevent an arrestable offence and in respect of the security of the State. The Defence Forces may apply for an authorisation regarding matters concerning the security of the State and the Revenue Commissioners may apply in respect of revenue offences. In all cases there must be reasonable grounds for believing that the surveillance is necessary for the purpose intended and, further, that such surveillance being sought to be authorised is proportionate to the objectives and is reasonable.

Section 5 deals with the issuing of authorisations for surveillance by a District Court judge, applications for which may be made ex parte and shall be heard in private. Before a judge issues an authorisation, he or she must be satisfied that it is justified to do so having regard to all relevant circumstances and that any surveillance is not primarily directed at privileged communications. An authorisation may be issued for a maximum of three months. The judge, when issuing an authorisation, may authorise the person named in it, or other members, or other persons considered necessary to enter property, if necessary by reasonable force, to carry out such surveillance.

Section 6 provides for the variation of the conditions attached to an authorisation and for the renewal of an authorisation for a further period of up to three months.

Section 7 provides for the approval of surveillance in situations where the matter is urgent and there are reasonable grounds to believe that before an authorisation could be issued, it is likely that a person would abscond to avoid justice, evidence would be destroyed, or the security of the State would likely be compromised. In such a case, a superior officer may give approval for surveillance on grounds connected with the issuing of an authorisation for a limited operational period of up to 72 hours. If continued surveillance is required, an authorisation will have to be obtained from a judge of the District Court. The section also requires the keeping of written records and the making of reports by the parties involved.

Section 8 provides for the approval of the use of tracking devices for a maximum period of four months. Judicial authorisations are not required for their use, but the approval of a superior officer is necessary based on strict qualifying criteria in line with the criteria for the approval of surveillance. Such tracking devices would be used to monitor the movements of persons, vehicles or things and provide information on the location of same. The Bill requires that written records and reports have to be maintained in these cases.

Section 9 provides for the retention for a specified period of all official documents relating to authorisations for surveillance, reports, written records of approval sanctioning surveillance in urgent cases, the use of tracking devices and surveillance. This period is either three years from the end of the surveillance, or the day after the information is no longer required for any prosecution or appeal for which it is relevant.

Section 10 deals with the secure storage of, and authorised access to, information and documents generated as a result of the carrying out of surveillance, with the intent of protecting persons' privacy and other rights.

Section 11 provides for a complaints procedure where a person believes that he or she may be the subject of surveillance. In a case where there has been a contravention of a provision of sections 4 to 8 of the Bill, the referee has the power to direct the quashing of an authorisation, the destruction of any information obtained and to recommend payment of compensation up to €5,000. If the judge believes, however, that it is in the public interest to do so, he or she may decline to make such directions or recommendations. Where the referee finds no such contravention, he or she will notify the applicant stating only that there has been no such contravention. The referee may also refer the matter to the Garda Síochána Ombudsman Commission, the Minister for Defence or the Minister for Finance depending on the particular State agency concerned.

Section 12 provides for the appointment of a judge of the High Court to oversee the operation of the main provisions of the Bill and to make regular reports to the Taoiseach in the matter. Such reports will be laid before both Houses of the Oireachtas.

Section 13 is a confidentiality provision. It prohibits the disclosure of any information about the operation of the Bill, unless it is made to an authorised person, as defined, and it is connected with specified criteria such as the investigation and prosecution of offences or in the interests of the security of the State. The section applies to members and officers of the agencies concerned, including members of respective reserve forces, as well as to persons engaged on contract work. It also applies to persons generally. Breach of this provision is an offence which may be prosecuted summarily or on indictment.

Section 14 is a core provision of the Bill. It deals with the issue of admissibility of evidence in the narrow and very specific context of evidence obtained by means of surveillance. It provides that such evidence, notwithstanding any error or omission on the face of an authorisation or a written record of approval, or notwithstanding any failure by any member or officer to comply with a requirement of an authorisation or written record, is admissible in certain clearly defined circumstances, where the error or omission was inadvertent or where the member or officer acted in good faith and the failure was inadvertent and where the interests of justice would be served by the admission of the information.

The court, when deciding on the admissibility of such evidence, will have regard in particular to matters set out in the section, whether the error or omission or failure was serious or merely technical in nature, the nature of any right infringed, any circumstances of urgency and the possible prejudicial effects of the information and the probative value of same. In effect, this means that a breach of statute-based procedures or a failure to fulfil particular statutory requirements will not, of themselves, mean that the material in question must be excluded.

Section 15 deals with the disclosure of information about surveillance in court proceedings. It provides that disclosure by means of discovery or otherwise shall not be made unless a court authorises otherwise. A court shall not authorise such a disclosure unless it is satisfied that to do so would not create a risk to the security of the State, the ability of the State to protect persons, including witnesses and the integrity and effectiveness of security and crime fighting operations.

Section 16 provides that the Minister for Justice, Equality and Law Reform, the Minister for Defence and the Minister for Finance may make regulations under the Act. Any such regulations must be laid before each House of the Oireachtas.

Section 17 amends the Garda Síochána Act 2005 to provide for the non-application of the provisions of the Act to the Garda Síochána Ombudsman Commission. This is in line with the existing non-application of provisions of the Offences against the State Acts 1939 to 1998, and the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993.

Section 18 provides for a technical amendment of section 32A of the Courts (Supplemental Provisions) Act 1961 so as to extend the provisions of that section to include this Act. Section 19 is a standard provision and provides for the Bill's Short Title.

I regard this Bill as a significant advance in the process of bringing those involved in serious criminal, subversive or terrorist activity to justice. It is a demonstration of the Government's ongoing commitment to the fight against crime and to the safety of all our citizens. It adds to the draconian measures already introduced by the Criminal Justice Acts of 2006 and 2007 in dealing with the prosecution of gangland crime.

The Bill provides an appropriate and, more importantly, a proportionate balance between the competing demands of protecting the privacy rights of persons and of ensuring that we live in a society that is safe from the threats of violent crime and terrorism. The Bill respects our obligations under the Constitution and the European Convention on Human Rights, while ensuring that effective mechanisms are in place in supporting the Garda Síochána and other agencies in carrying out their work.

The benefits and risks associated with using the material gained as a result of surveillance in evidence involve a complex interplay of legal, technical, operational, resource and organisational matters. The security of the systems in use must be protected. At the same time, technological developments in this area are continuing to evolve so quickly that the potential intrusiveness into our personal lives requires that it may only be resorted to in a proportionate way, accompanied by proper and effective legal safeguards. I think the House will fully agree with me that the Bill now before it meets these requirements.

I would like to mention briefly my intention to introduce further measures to tackle organised criminal gangs in a separate Bill, which complements to a large extent the provisions in this Bill. In light of the ongoing intimidation of witnesses and jurors, I am considering that the powers available to combat subversive organisations be applied equally to criminal gangs. This would mean that crimes involving criminal gangs would be scheduled offences for the purposes of the Offences Against the State Act, so that they will be tried in the Special Criminal Court, unless the DPP directs otherwise. I am also considering the introduction of several new organised crime offences with a maximum prison sentence of 15 years to life.

There are complex legal and constitutional issues involved in these proposals. I am in close consultation with the Attorney General and also with others in my Department on these matters.

I commend the Bill to the House and thank the Opposition for considering it so quickly after its publication. I hope it will have a speedy passage through the Oireachtas.

Photo of Charles FlanaganCharles Flanagan (Laois-Offaly, Fine Gael)
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On behalf of Fine Gael, I wish to support the Bill and I welcome the initiative that has been introduced by the Minister for Justice, Equality and Law Reform. I acknowledge the work undertaken, particularly by the Law Reform Commission a long number of years ago, which prepared the ground for this legislation. I also wish to acknowledge the work, in more recent times, of the Oireachtas Library research team whose members prepared a fine document which has just come to my attention. Due to pressure of time I have not yet had an opportunity to read it in full, other than giving it a cursory glance. However, it seems to be a fine document and will be a great resource for Members in dealing with this legislation.

I thank the Minister and his officials for making themselves available to provide a briefing which I attended. The Bill will allow background material gained by covert surveillance to be used in evidence, either to support criminal charges or as a basis for a charge of conspiracy in its own right. While gardaí have been conducting overt and covert surveillance for many years, this Bill will leave us in less doubt that the information so gathered can not only be presented as evidence in court, but also be admissible as evidence. It can also form part of the body of opinion that will ultimately lead to the conviction of guilty parties.

I hope we can complete the legislation by the summer recess. In that regard I look forward to facilitating the Minister on Committee Stage, although we must have an opportunity of ensuring that we can go through the Bill on a line by line basis. Fine Gael will support any measures to ensure that organised criminals in the State, and gangland crime in general, are successfully tackled.

Looking back, we see a conviction rate in the order of 12% for the 171 shootings that took place in the past decade. There can be no doubt, therefore, that our evidence-gathering mechanisms require an overhaul. This legislation will no doubt assist in that regard. Covert surveillance legislation is essential in the fight against organised crime. Currently, gardaí monitor criminals under targeted operations such as Operation Anvil. It seems to be somewhat less than satisfactory, however, if the material they gather in the course of a criminal investigation cannot be admissible at a subsequent trial. That is unsustainable, so I acknowledge the Minister's commitment towards addressing this difficulty.

However, in its own right, this legislation will not comprehensively address gangland crime, organised criminals and the threat posed to our democratic society. Alongside this legislation, the Minister must ensure, for example, that the resources available to the State prosecution services are such as to be satisfactory to meet the needs of the Garda Síochána. The DPP himself has indicated that given a 3% cut in his funding for last year, it will be impossible for his office to process its current workload. Nonetheless, we hear flowery statements on the Minister's part and tough talking to the effect that gangland crime is to be no more and that all the resources of the State will be made available. These utterances are echoed by his Government colleagues, particularly in the Limerick area, yet we have an unprecedented statement of anxiety from no less a figure than the Director of Public Prosecutions.

It is also important that the Garda national surveillance unit, which I understand will run the new bugging and tapping operation, is properly resourced. The Garda Commissioner is on record as saying that this legislation will not require the establishment or introduction of a new Garda unit and that the national surveillance unit will be charged with responsibility for running the operation. However, that body will be charged with handling an increased workload, on the basis that written records of procedures must be kept. The legislation places a considerable onus of responsibility as far as written records are concerned, and I am sure we will see more of that in the ministerial regulations. This level of resources will demand a commitment on the Minister's part that I am sure will be forthcoming before we conclude the debate on this Bill.

As I mentioned earlier on the Order of Business, the establishment of a DNA database is long overdue. It will be a key factor in improving the abysmal — I do not use that word lightly — conviction rate for the heinous crime of murder in this State. We, in this Republic, should maintain a DNA database, as other European states do, and participate in information sharing in this area. I look forward to the publication of the relevant legislation this year.

The matter of resources for the Garda and State prosecution services arises. It flies in the face of waste management practice and curtailment efforts in the Minister's Department and agencies under his jurisdiction that a bill of €1,000 was paid to change a light bulb in a Garda station. I hope the Minister will take the opportunity to have a word with his learned colleague, the Minister of State, Deputy Mansergh, who recently retained his position in the Department of Finance. At a time when expenditure on the building programme for Garda stations has been slashed and Garda stations are to suffer a reduction in activity, it is farcical that the Office of Public Works, in the knowledge of the Department of Justice, Equality and Law Reform and Garda Síochána, can pay bills of €1,000 to change a light bulb or two. I ask the Minister to conduct an investigation into this matter to determine what precisely are the circumstances of the case. I wonder whether Mr. Colm McCarthy and his colleagues, from whom we await a report, have visited a couple of Garda stations in the course of their review.

In the context of forthcoming miscellaneous provisions legislation on the fight against crime, I ask the Minister to examine a Private Members' Bill I published late last year. His record on accepting or even acknowledging Private Members' Bills is poor.

Photo of Pat RabbittePat Rabbitte (Dublin South West, Labour)
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That is for sure.

Photo of Dermot AhernDermot Ahern (Minister, Department of Justice, Equality and Law Reform; Louth, Fianna Fail)
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I will read them provided they are not plagiarised.

Photo of Charles FlanaganCharles Flanagan (Laois-Offaly, Fine Gael)
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I do not expect the Minister to accept my Bill given his form in this area and for this reason I have not even pressed it as a priority for Private Members' time. The Minister's forthcoming miscellaneous provisions Bill should tighten up loopholes in the matter of sentencing. It should remove automatic remission and provide that remission be granted where good conduct has been observed. Persons convicted of serious crime, specifically gangland activities, should not have automatic remission unless they are, in the opinion of the parole board, less likely to engage in recidivist behaviour.

The forthcoming legislation should also increase penalties for the possession of blades and firearms to make them more of a deterrent. The Minister should also consider introducing criminal organisation civil restriction orders, under which a judge can restrict the movement of gangsters and their association with certain individuals. Electronic tagging, which was provided for in legislation enacted under the former Minister for Justice, Equality and Law Reform, Mr. McDowell, has not yet been activated. The Minister should address this matter. I will discuss criminal, jury and special courts in the context of gangland crime later.

While we will have an opportunity on Committee Stage to examine the exclusionary rule, I note the Minister has embarked upon an amending process. As he will be aware, earlier this year my Seanad colleague, Senator Eugene Regan, published a Bill dealing specifically with the admissibility of evidence in criminal trials. It is extraordinary that the Minister urged his Fianna Fáil troops and their Green Party colleagues in the Seanad to vote against the Bill. While I welcome his subsequent decision to introduce changes in this area, it is a monument to his political pride that he had a proposal designed to do exactly what is proposed in his subsequent legislation voted down in the Seanad. Despite the approach taken by the Minister, I do not have a difficulty in supporting his Bill and I do not propose to take the narrow, politically partisan line he so favours.

In light of the significant increase in criminal activity, particularly in the organised crime area, it is important to ensure certain evidence in criminal trials can be admitted in court. Criminal gangs are running the show in certain communities, terrorising localities and intimidating individuals and families. It is extraordinary that evidence is ruled inadmissible in court when it has been obtained by chance or when a minor clerical error is identified. The "fruit of the poisonous tree" principle, as coined by the Federal Supreme Court in the United States, is the basis for such rulings. It is unsustainable that numerous criminal cases have been thrown out of court on technicalities, with the result that criminals have been granted permission to remain at large and perpetrate further acts of violence against communities and individuals. While I regret that the Minister's pride has taken precedence over combating criminal activity, I will nonetheless support the measures in the Bill which were first proposed in Senator Regan's legislation.

Zero tolerance was the major electoral platform which swept the Fianna Fáil Party back into office in 1997. It is important, 11 years on, to assess the commitment the party made in this regard which has not materialised along the lines promised. Gangland figures have no fear of the law. Convictions have been secured in 14 of the 140 gangland murders committed since 1998. In 2008, the number of incidents involving pipe bombs, grenades and improvised devices in Dublin increased from 24 in 2007 to 106, a staggering rise of 340% in one year. Of 171 gun murders committed in the State since the Fianna Fáil Party promise to implement a policy of zero tolerance was first placed on billboards throughout the country, only 22 convictions have been secured. The average time served by those who have been convicted and put away for murder, the most serious crime on the Statute Book, is 15 years. A minimum mandatory sentence of 25 years is required for persons convicted of murder, save in the most exceptional circumstances.

To date in 2009, there have been 12 gangland murders. It is clear that gangland criminals have stepped up a gear and possess superior technology and equipment to that of the Garda, which still awaits basic vital resources such as the roll out of national digital radio about which we have been hearing for 11 years. The legislation affords the Minister an opportunity to ensure, for the first time, that modern equipment and communications technologies are available to assist the Garda, Naval Service, Revenue Commissioners and Customs and Excise in the fight against organised crime.

Ten years ago, the Government gave a commitment to provide a national digital radio service. The contract was only awarded in 2007. It is still, in spite of a number of press conferences held on the issue, only available in parts of Dublin. The current analogue radio system is unsafe and has been known to have been intercepted by criminals and gangland figures, so the digital radio service would provide increased protection for gardaí on operational duty.

Increased radio coverage will help and assist in this Bill. If gardaí are to monitor criminals on a covert basis, they also need to have the basic overt equipment, such as a radio that works, rather than having gardaí using their personal mobile phones to pass on vital information in the area of intelligence gathering and detection. This Bill will ensure the national unit dealing with it is given greater armoury by this House.

The freeze on recruitment will mean a decline in Garda numbers from the end of this year onwards. Perhaps the Minister, Deputy Ahern could put on the record the situation regarding Templemore and the Garda college. There are some 160 gardaí in the training unit there providing necessary training. Approximately 100 recruits will come in early next month and then, I understand, the college will be mothballed for at least two years and perhaps more. This matter needs to be addressed and we need to know the Minister's plans. Jobs are currently being lost. Staff have been let go and others have been notified to the effect that their future is uncertain. I want to know what is happening to the full-time Garda training force in Templemore and what future plans the Minister has for its employment or re-deployment.

There is also an expertise and experience drain that the 1% pension levy has imposed on the Garda Síochána where, I understand, many experienced and loyal members of the force at all levels, including some at very high ranking levels, are opting for retirement, given the adverse personal consequences of the levy. The pension levy on gardaí will force people into early retirement, thus introducing something of an experience drain on the force which will have serious consequences.

Operation Anvil has been in operation since 2005 and has been in place nationwide since 2006, the primary aim of which is to target active criminals. In 2008, €20 million was ring-fenced specifically for Operation Anvil. However, only €21 million is ring-fenced this year. I find it difficult to see how new legislation can assist in the waging of war against gangland criminals if there is not an appropriate matching by the State of the necessary resources. I heard what the Minister, Deputy Ahern and senior gardaí said about Operation Anvil.

RTÉ broadcast a "Prime Time Investigates" programme on gangland and drug-related murders on 2 March. A community garda in Finglas is quoted as saying Operation Anvil was operated in the "K" district, mainly in Finglas, seven days a week until recently, where, in the last number of weeks, it has been cut from seven days a week to four days a week, from Thursday to Sunday. It now operates only at night time, whereas it had run from Monday to Sunday, day and night. This is a direct result of the cuts inflicted by the Minister, Deputy Ahern on the Garda. The area referred to in west Dublin is one which has seen gangland activity of the most vicious type, with a number of murders in recent times.

In a response to a recent parliamentary question I tabled, the Minister, Deputy Ahern denied any reduction in activity by Operation Anvil in the Finglas area. What is happening here? The Minister is not giving the full picture to the House and is withholding information or he is not aware of what is happening on the ground, because what he said to me in response to a question is in direct contradiction to what community gardaí and officers of the Garda Síochána are saying on the ground.

In the context of this Bill, there is the ongoing matter of bail. Serious criminals, some of whom are gangland figures, are being granted bail from the courts with some ease. A review, which may have been referred to by the Minister on a number of occasions, does not appear to be forthcoming and we do not know where he stands on the matter of bail and the changes, if any, to bail. He might let us know what are his views.

Regarding the witness protection programme, I accept the Bill provides for the Garda to place covert audio and visual recording equipment in the homes of criminals and other places which they may, from time to time, frequent. This is good and may also lesson the need for the Garda to rely on witness evidence in court. It may reduce the number of witnesses who need to avail of the witness protection programme.

Notwithstanding that, the success of the witness protection programme has been extremely limited. The Garda Commissioner conceded that asking people to give evidence and relocate abroad was difficult and I accept that. We are a small community and family, friends and neighbours are important and it is not easy to expect people to uproot and leave communities where they may have lived for generations and set up abroad, often with a different identity.

Former Garda Commissioner, Mr. Noel Conroy, goes further and has said many people are simply too scared to give evidence against armed drug gangs. That may be putting the finger on the matter. Recently, the DPP, Mr. James Hamilton expressed his doubts about the witness protection programme and said it was of limited use in tackling gangland crime because the demands on people entering the programme were fairly drastic. The number of people who have passed through the witness protection programme is unknown. In 1999 we spent £41,000 on the programme and this year €1.2 million has been set aside for it. The spending on it has grown enormously but the fund remains modest. It seems to me relatively few people are being maintained under the programme. Perhaps the Minister could let us know what is the situation.

There is also the question of bench warrants which, if we are serious about a comprehensive attack on gangland and organised crime, needs to be looked at. This matter has been raised here on a regular basis. There are some 30,000 outstanding bench warrants, some of which are in respect of fairly senior, well known gangland figures. We had a totally unacceptable situation in Limerick earlier this year, when a known gangland figure, against whom a bench warrant had been issued and perhaps for his own protection, walked into a Garda station asked gardaí to execute the warrant as he had come in.

It seems an extraordinary lapse, which has happened under the Minister's watch, if there can be 30,000 outstanding bench warrants, some against serious gangland figures and well known criminals, and there is not the wherewithal on his part to deal with the matter in a satisfactory way. I remind him of the programme for Government commitments on organised crime in 2007, only two years ago.

The Government committed itself to the fight against organised crime. The Fianna Fáil-led coalition made two specific commitments on gangland crime. The first one has probably been used in Cork, the home of the Acting Chairman. It involves the introduction of divestitures under which defendants would be required to divest themselves of interests in tainted enterprises, restrictions would be imposed on the future activities and investments of individuals, and the dissolution or reorganisation of any enterprise could be ordered. This has not happened; I have not actually heard much about it.

The second commitment was to introduce trusteeships which would allow the courts to empower trustees to run organisations that are infiltrated or controlled by criminal elements. The Minister might update us on the progress made on these measures.

Before I conclude I will mention special courts, to which the Minister made reference in a press conference announcing this legislation. He may have been referring to this in the final couple of paragraphs of his speech earlier, when he stated he had other measures to introduce. If the Minister is thinking of using the Special Criminal Court for gangland offences, I wonder about the legal advice in respect of constitutional concerns. What has changed since last November when the Taoiseach, responding to such calls from me and my party, referred to section 72 of the Criminal Justice Act 2006? This section provides that a person convicted of gang membership may be sentenced to five years in prison. The Taoiseach said this was inoperative and might in effect be unconstitutional. This was based on legal advice he had received, presumably from the Attorney General.

The Taoiseach then, instead, addressed the possibility of using the Offences Against the State Act and the Special Criminal Court against organised crime. He rightly said that the Supreme Court had declined to accept the word of a superintendent where a person had denied involvement on oath and where there was no corroborating evidence to support the original allegation. The Minister is on record as having indicated he intended to introduce a law which would try alleged gangland criminals in the Special Criminal Court. How can that be reconciled with the statement of the Taoiseach? Was the Taoiseach badly advised with regard to this matter? The Attorney General might wish to clarify the situation. This is of some importance.

For Committee Stage, we need to deal with the issue of self-certification and what constitutes urgency. Somebody is on record as saying an authorisation would be granted on an urgent basis where it would be or might be authorised by a judge. We need to tease this out, and we will do so on Committee Stage. The matters of the right to privacy and judicial oversight are also important, as are the forms and procedures, under section 7, which must be carefully crafted. Perhaps the House will have the opportunity to see these before they are in common use by the Garda Síochána. I also referred earlier to the exclusionary rule.

I acknowledge the work the Minister has done on this Bill. He will have the support of Fine Gael in this and other initiatives he undertakes to change the law on gangland crime. However, it is one thing to change the law; it is another to provide adequate resources for the relevant State agencies. I hope this will not suffer unduly in the context of the current economic crisis.

1:00 pm

Photo of Pat RabbittePat Rabbitte (Dublin South West, Labour)
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I too broadly welcome this Bill, especially as it was prompted by the Garda Síochána (Powers of Surveillance) Bill 2007, which I published in November 2007 on behalf of the Labour Party. Not, as Deputy Flanagan remarked, that one would know that from listening to the Minister, who has not even referred to the fact that a Private Members' Bill was published on the subject. The important thing, however, is that there has been a major shift in official thinking since that Labour Party Bill was published in November 2007. It has been prompted by the gangland killings which are now claiming innocent lives. At the time I published the Bill, neither the Garda Síochána or the Minister favoured such a measure. Indeed, the then Minister, Deputy Brian Lenihan, delivered himself of the opinion that by using bugged and intercepted conversations as evidence in prosecutions, the force ran the risk of "alerting criminals to Garda investigative techniques". It is fair to infer that the Minister was, in that extraordinary remark, reflecting the views of the Garda Síochána.

As I understand the official but unpromulgated position of the Garda, up to and including the publication of that surveillance Bill by the Labour Party, it was that it already had powers to engage in such surveillance but it would not be productive if intelligence so gathered was to be introduced in court. That is the impression I have of why the Garda took the view it did. I would be interested in teasing this out with the Garda. I tried to do it in committee with the Commissioner when he was last with us, but the Garda does not especially want to engage in discussion about why it held those reservations. I would have thought a police force would welcome the national Parliament's being disposed to give it such powers. They are not everyday things that people particularly want to agree to; they have been introduced here only in emergency circumstances.

However, the Garda Síochána's traditional position has been that it has powers of surveillance and it engages in surveillance of criminal suspects, but it considers that, as the Minister said, if it was required or permissible to make that intelligence admissible as evidence in court, it would somehow be counter-productive in that it could alert criminal suspects to Garda investigative techniques. If it does hold that position, it would have been more helpful for it to engage with those of us who do not have the same experience of the criminal justice system, based on its particular investigative role. I would have been interested to hear the arguments in more detail. However, the Garda has now been railroaded into this, due to political imperatives, in order to respond to what is happening in our country.

What is happening in our country at the moment is almost beyond belief. To hear Stephen Collins in Limerick give an interview to the effect that notwithstanding the terrible tragedy that befell his family it again has been threatened, is incredible. He is entitled to plead to this House, to the Government and to the Minister for Justice, Equality and Law Reform in particular to know what steps can be taken to protect him and his family and to allow him to live some type of normal life. We are taking an important step with this Bill. I hope Committee Stage will allow for a somewhat more frank exchange so that Members on all sides of the House understand each other. Whatever else we are divided on, we are not divided on the necessity to bring serious organised crime to heel. We must have a more frank exchange of views.

As I said, it is clear now that the position has changed, and I welcome that. In my view, the murder of Shane Geoghegan was the turning point. If a law abiding citizen can be shot down in a city with three times as many gardaí as in similar urban areas, then we have reached a very serious stage. If witnesses can be threatened and intimidated, things have come to a serious pass. If a respectable businessman can be murdered because a relative did his civic duty and gave truthful evidence in court, then the very basis of our society — the rule of law — is challenged.

In such circumstances, it is to be expected that there will be growing demands for extraordinary measures to be authorised by the State. It would be a mistake to allow the belief to grow that the criminal justice system is incapable of dealing with organised crime without resort to extreme measures. This Bill represents a proportionate and legitimate response to the difficulties we face. When I introduced my own Bill on these matters in 2007, I made the point that modern crime requires modern responses and that the Garda Síochána must be given the appropriate powers to enable it not only to detect crime and put those responsible behind bars but also, to the greatest extent possible, to prevent crime from taking place.

Most people will have been shocked to learn that the Garda currently has no legal powers to undertake electronic surveillance of criminal suspects, although these powers form a central part of the anti-crime armoury of most other countries. It is important to reiterate this point. Deputy Charles Flanagan spoke at some length about our rates of detection and conviction. However, people outside the House are concerned not only with these matters; they are also very concerned that we should seek to be more effective at preventing serious crime. I do not pretend that the extraordinary circumstances being confronted in some urban areas by the Garda are anything but daunting. However, law abiding citizens expect that the first duty of Government is to protect them and to assure them of their safety in their homes, on the streets, in their places of work and in their recreational activities.

We cannot currently say, hand on heart, that we can discharge that duty. This Bill is relevant in the matter of preventing crime. That was my own motivating factor in introducing our legislation. Why should the Garda Síochána not have what it takes in terms of modern equipment to allow it to engage effectively in the gathering of intelligence, intelligence that hopefully will lead to the prevention of crimes that would otherwise have been committed? I do not claim the legislation will be a panacea or anything like that, but it is an important step.

I draw Members' attention to the conclusion of the Irish Council for Civil Liberties that intelligence-led policing not the restriction of fair trial rights is the most effective way to tackle gangland crime. The council acknowledges that the Bill will place Garda surveillance "on a lawful basis that broadly conforms to Article 8 of the European Convention on Human Rights". There is a difficult question that arises in regard to the effectiveness of the legislation in terms of its purpose, in the first place, as well as the constitutional and other rights to privacy and so on of the citizen. However, a vigilant body such as the Irish Council for Civil Liberties would not confer approval on this measure unless it considered it reasonably balanced.

I am not arguing — nor, I presume, is the Minister — that this Bill will of itself defeat organised crime. However, it is a valuable instrument available to the Garda and its use broadly must be the result of judicial authorisation. We should, within safeguards, be prepared to confer every possible advantage on the Garda Síochána to enable it to tackle organised crime effectively. The Labour Party Bill provided for resort to the Garda Ombudsman Commission in certain circumstances. This is something we might discuss on Committee Stage.

As Deputy Flanagan said, the truth is that the corrosive and worsening effect of crime is taking a terrible toll on our society. Some communities in particular are besieged by criminal gangs. Crime bosses dominate these urban communities in the same way paramilitary organisations dominated certain communities in Northern Ireland and sought to obtain control over selected communities in the South. Most serious crime is driven by the trafficking in drugs. Nothing and nobody is allowed to stand in the way of the ruthless drive for lucrative profits. As a result, we have seen a number of innocent civilians losing their lives as they became accidentally involved in the crossfire of the vicious feuding and pursuit of wealth.

Given his period of time in the House, the Minister must find it difficult to understand the very considered reaction on this side of the House given the extent of crime in our society. I said at Question Time last week that were it not for the disastrous condition of our economy and the state into which it has been plunged by the Government's poor management in the past four or five years, crime would be at the top of the political agenda. Deputy Flanagan dealt at some length with the circumstances more than a dozen years ago and the position of the Minister's party at that time.

There was a general election in 1997 when three or four seats separated the contending Governments. Without doubt, it was the issue of crime and zero tolerance which tipped the balance in favour of Fianna Fáil. At that time, Fianna Fáil was grossly irresponsible. Some of the charges made were completely out of proportion and some entirely unfair, but that is politics. There used be uproar in this House if even a letter went missing in the then Department of Justice. Such an occurrence could lead to the adjournment of the House, special debates and censure motions on the Minister of the day.

It is remarkable now, with things so much worse, to note the apparent complacency of the Minister and the people on the benches behind him. Nothing we have ever seen was anything like what we have experienced in recent times: a garda on a motorcycle shot at 11 o'clock in the day; murders of innocent civilians; and the drugs situation getting worse, corroding entire communities and poisoning generations of young people. The drugs situation is at the bottom of all of this. I am not saying it is easy to get on top of it. However, compared to the circumstances obtaining in the early 1990s, the current situation is so much worse, and the Minister knows that.

Deputy Flanagan presented statistics which dealt with the reality we are now experiencing. How far we have come from the days when we were told things were under control and that we were experiencing the last sting of the dying wasp. Unfortunately, the wasps are multiplying and are a very long way from their last sting.

The critical section of the Bill is section 14. It makes intelligence gathered from the measures being put in place admissible as evidence. It is my understanding that if there is a breach of constitutional right evidence is automatically excluded and if there is a breach of statutory right the judge has discretion. That is the exclusionary rule and the Minister has made reference to the Kenny judgment. Perhaps this will be tested. However, it seems that section 14 is probably making as good a fist of things as can be made in the circumstances. We know from the Kenny judgment that inadvertent error does not invalidate evidence held to be admissible. Section 14 deals with that. It is at the heart of the Bill and the Bill will not have meaning without it. If that section were neutered the Bill would not have meaning. I hope that, subject to the safeguards and oversights built into the legislation, it is the intention of this House that intelligence gathered in this fashion can be made admissible in court. I believe that is the wish of the people and it is manifestly the wish of this House. I hope that turns out to be the case. I do not know what additional comments the Minister would want to make on that. Reassurance is what we need.

May I ask the Minister about section 15? Rather than denying that it held the view I have ascribed to the force, it would be healthier for the Garda Síochána to engage with us and explain its reservations. Section 15, which deals with disclosure of information and the processes to be followed, stipulates that, essentially, there will not be discovery of the processes. That seems to connect with the point I made about the Garda Síochána and its wish that the position would be otherwise. Subsection 15(1) provides the processes to be followed should not be disclosed by way of discovery. How does that stand up in court? If I am representing a defendant, surely I can cross-examine as to the processes that were followed. I would like to hear the Minister address that when he replies.

I also welcome the safeguard of the judicial referee although I am curious to know how I can complain to the judicial referee, who will be a Circuit Court judge, about surveillance or interception if I do not know it is happening. I am not arguing that we should put a notice in the newspaper advertising the fact that a process of surveillance in under way or that material has been intercepted. I can understand the role of the High Court judge who will have the very important job of assessing the performance of the interceptions and who, I am sure, will carry out his responsibility diligently and with great care and report to the appropriate member of the Government that all is well. I can understand his role more clearly than that discharged by the Circuit Court judge who is the referee. If, after the event, I become aware that my telephone has been tapped improperly should I go to the Circuit Court judge in the first instance?

We will have an opportunity on Committee Stage to make sure that the legislation stand up to scrutiny. It is not legislation which we can be satisfied to be put on the Statute Book and be then forgotten. It requires to be implemented, given what is now happening in parts of the country.

I refer to the last page of the Minister's script where he refers again in one or two paragraphs to the fact that he is contemplating additional measures. He took the opportunity of the launch of the Bill to announce various other forthcoming measures. He has put very little detail of this in his formal script. I wish to hear more about this matter because gang membership seems to be fraught with difficulty in terms of trying to frame legislation that could stand up to challenge. Is the Minister saying that there is intimidation of jurors in addition to intimidation of witnesses? We are aware that the nub of the problem is intimidation of witnesses.

However, it is even more serious if the Minister is saying there is intimidation of jurors. I know of no evidence suggesting the Special Criminal Court would produce more convictions than the jury courts. Will the Minister contradict that statement? Is there evidence that the Special Criminal Court would produce more convictions? It seems in so far as I have observed the matter that juries are not the problem. It has been suggested that several cases have occurred where the jury might have been more likely to convict than the Special Criminal Court. The issue of intimidation of witnesses is a different matter and it will not be solved by making certain actions scheduled offences to be tried by the Special Criminal Court.

I hope the measures before the House on Garda surveillance will be helpful in dealing with the matter of intimidation of witnesses. I cannot understand how evidence by way of Garda opinion adds much to the evidence garnered from the surveillance mechanism we are putting in place today. Does it add anything for a senior garda to state that his or her opinion corroborates the intelligence gathered from the surveillance measures in place? I hope the Minister has thought out these matters, that there is clarity and that he believes it can bring extra value and more effectiveness in tackling crime. However, I have some reservations concerning what has been put in the public domain thus far. The Minister has devoted only a paragraph in his script indicating what he may or may not do in this regard and I wish to hear more on the matter.

Photo of Michael MulcahyMichael Mulcahy (Dublin South Central, Fianna Fail)
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I strongly but sadly support the legislation. I use the term "strongly" because I believe the legislation is essential in the war against organised crime and gangland terror. However, I use the term "sadly" to note that society has come to the point at which such legislation is required. The Minister will be fully aware that the courts have been vigilant in the protection of human rights in a series of decisions. Human rights are enshrined in Bunreacht na hÉireann and in the European Convention on Human rights which we incorporated into law in 2003. In the Supreme Court decision, The People (DPP) v. Kenny [1990], Mr. Justice Finlay stated that "the correct principle is that evidence obtained by invasion of the constitutional personal rights of a citizen must be excluded unless the Court is satisfied that either the act of constituting the breach of constitutional rights was committed unintentionally or accidentally, or is satisfied that there were extraordinarily excusing circumstances which justify the admission of the evidence in its (the Court's) discretion."

This legislation will no doubt interfere with the constitutional rights of accused persons. It should only do so in necessary circumstances and in a very careful way. Checks and balances have been referred to by my colleagues concerning complaints and monitoring by a High Court judge is essential in this regard. Further, on Committee Stage we must closely examine questions with regard to the admissibility of such evidence. We must especially ensure that an accused person is shown the full deck of cards. It is fine to hold one's cards close to one's chest and proceed with a prosecution. However, once the cards are laid down by way of evidence the accused is entitled to see the full pack of cards, such that he or she can properly protect or vindicate his or her own name. I have no difficulty with surveillance, especially against some of the criminals of who have committed heinous crimes throughout the country but we have a very good system of criminal justice which should not suffer simply because of a very small and nasty minority of people determined to do bad throughout the country.

I compliment the Minister on introducing the legislation because it is essential. I am aware from events in my constituency, and the Garda have directly informed me, that without the use of a significant degree of surveillance evidence the detection and prosecution of criminals, especially in cases related to drug and gang crime, would not be possible. There is no question that surveillance evidence must be allowed in court.

The mechanism and architecture of the Bill makes much sense. I wish to see most if not all of the authorisations coming from the District Court although I am less agreeable to a superintendent issuing such an authorisation. I appreciate this may only take place for 72 hours and in exceptional circumstances but they should only apply in exceptional cases and should take place primarily through the District Court.

I urge the Minister to closely examine sections 14 and 15 on Committee Stage relating to the admissibility of evidence and the disclosure of information to the accused respectively. I seek clarity in the Bill at a later stage if possible that such evidence will not be used in any form of civil proceedings such as matrimonial or commercial proceedings. The measures should never be available for such proceedings and should strictly be limited to the most serious of crimes, which, I understand, is the Minister's intention.

Other Members have spoken of the framework for complaints to the referee judge and, ultimately, the Government will have this monitored by a judge of the High Court, which is essential. The accused must be given equal access to information. I am not saying that in all cases they should know the entire modus operandi——

Photo of Noel O'FlynnNoel O'Flynn (Cork North Central, Fianna Fail)
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It is now 1.30 p.m. Is the Deputy sharing time?

Photo of Michael MulcahyMichael Mulcahy (Dublin South Central, Fianna Fail)
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I understand Deputy Peter Power will take over after the sos.

Photo of Noel O'FlynnNoel O'Flynn (Cork North Central, Fianna Fail)
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Is that agreed? Agreed.

Debate adjourned.

Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.