Dáil debates

Thursday, 30 April 2009

Criminal Justice (Surveillance) Bill 2009: Second Stage (Resumed)

 

Question again proposed: "That the Bill be now read a Second Time."

10:30 am

Photo of Dick RocheDick Roche (Minister of State with special responsibility for European Affairs, Department of Foreign Affairs; Minister of State, Department of An Taoiseach; Wicklow, Fianna Fail)
Link to this: Individually | In context

When this debate concluded last night, I was responding to the fine contribution that had been made by Deputy O'Dowd. I emphasised my agreement with many of the points he had made. Today, I am happy to restate my full backing for this Bill. In essence, we all agree with it. The main purpose of the Bill is to regulate the law and the present practices of the Garda Síochána, the Defence Forces and the Revenue Commissioners relating to the secret surveillance of suspects. It is a sad reflection on the development of society that we have to provide for the secret surveillance of suspects. If it is deemed necessary, however, it is appropriate that there should be a good and strong legislative basis for it. This legislation provides such a basis. Secret surveillance operations can produce valuable intelligence material, not only when serious crimes and subversive activities are being planned but also when offences are being committed and after they have been committed. Last night, I outlined some of the reasons it is appropriate to make statutory provision for such operations.

This Bill will put in place a system whereby the use of surveillance devices during security operations can be authorised and approved. This legislation is good because it specifies the requirements that must be observed by the various State agencies when they are using such devices. An authorisation may be issued on foot of an application to a District Court judge. On the basis of the evidence presented to the court by a superior officer of the Garda Síochána, the Defence Forces or the Revenue Commissioners, the judge must be satisfied that the proposed surveillance is necessary and uses the least intrusive method available. While a judicial authorisation will be generally required before surveillance can take place, the reality is that the exigencies of an individual situation frequently mean that it is not possible to go to court. Under the terms of the two general exceptions provided for in the Bill, surveillance may be carried out with the approval of a superior officer. This good and well drafted Bill sets out the specific circumstances in which such a departure from the norm may be permitted.

We all understand that in circumstances of exceptional urgency, it may simply not be possible to get court authorisation. Every reasonable person will accept that if there is an immediate risk of a person evading justice, committing an offence or destroying information or evidence relating to a crime, exceptional circumstances can be said to exist. In such instances, a senior officer of the Garda Síochána, the Defence Forces or the Revenue Commissioners must be satisfied that the proposed surveillance is necessary and uses the least intrusive method available. There is a strict time limit of 72 hours for the use of approved surveillance. If the surveillance is to continue beyond that period, authorisation must be sought from a judge within the 72 hours in question. This is a prudent measure. In such circumstances, the senior officer who approved the surveillance will be required under this legislation to make a report to a more senior officer - an assistant commissioner, a general officer or an assistant secretary - on all aspects of the approval. The report will summarise the surveillance that was conducted. The other set of circumstances in which an approval, rather than an authorisation, will be required will be when tracking devices are used to provide information on the location of a person, place or thing. The safeguards that are provided for in this Bill are proportionate. They offer the necessary balance between privacy rights and the protection of national security.

One of the most important features of this Bill is the section that sets out the qualifying criteria which must be fulfilled before surveillance may be used. It underscores the fact that secret surveillance is only permitted where serious crime is involved and the interference with privacy is proportionate. Those criteria must be taken into consideration in cases of judicial and non-judicial authorisation. In that context, I would like to refer briefly to a recent unpleasant personal experience. I was present at the scene of a crime that was carried out by masked individuals who could not possibly be identified by gardaí at the scene. I understand that surveillance material on these individuals was available from a place in which they had committed another crime, in the lead-up to the second crime. It seems to me that it is important to ensure that members of the Garda are not frustrated by excessive regulation. I recall speaking about the viciousness of the crime I witnessed. I referred particularly to the manner in which some of the young women who were working where the crime took place were treated.

Deputy Costello agreed with me last night when I said there is something extraordinarily vicious and almost inhumane about the crimes carried out by gangs. Members of the Garda have told me it is frustrating to have to fight crime with one hand tied behind their backs. The surveillance arrangements we are providing for will help to liberate the Garda, while offering specific protections to prevent future abuses. It is good and prudent that proper records will have to be kept of the details of approvals and operations and that complaints procedures are being provided for.

If a breach of the operation of the legislation takes place, it is right that the relevant authorisation or approval may be quashed and an order for compensation may be made. I am glad there will be judicial oversight of the use of the authorisation procedure and the conduct of autonomous emergency Garda operations. It is appropriate that a judge of the High Court will be appointed to keep this legislation under review and to report to the Taoiseach, who will ensure copies of such reports are laid before the Oireachtas.

As an aside, I wonder if our High Court judges should be so encumbered - perhaps we should find people outside the High Court to do these things. There are strict rules governing the storage and disclosure of material gathered from surveillance. If material is collected for one purpose, it is important that it should not be used for another. I have already mentioned that the Bill addresses crucial issues such as the disclosure of evidence and operations, to protect the integrity, effectiveness and security of Garda methods and operations.

Overall, the Minister has produced a fine Bill. The Garda Commissioner has advised him that a new approach is needed in light of the kind of serious crime the force has been dealing with over recent times. Deputy O'Dowd referred graphically last night to instances of gangland activity. Drug empires have been built. Threats have been made by subversive elements in our society. It can be difficult to get strong evidence against the godfathers of crime. This Bill provides a new approach and represents a change of policy. Up to now, it has not been the practice to use the results of secret surveillance in evidence. Quite rightly, the courts have been careful to avoid the use of such evidence. The balance has now been tipped to the point that this exceptional step needs to be taken. The availability of information, including aural recordings, about planning meetings, the context of such meetings, the individuals involved and the places discussed, could be of crucial importance in supporting criminal charges, particularly if direct evidence is weak or inconclusive or, as we have seen in recent times, there is a real and physical threat to decent citizens who would otherwise be available to provide evidence. This Bill is a necessary part of the ongoing fight against gangland activity and other serious crime. It should and will enjoy the support of all Members of this House and the other House. I wish the Minister and his Department well in processing the legislation.

Photo of Paul Connaughton  SnrPaul Connaughton Snr (Galway East, Fine Gael)
Link to this: Individually | In context

I would like to share time with Deputy Deenihan.

Photo of John O'DonoghueJohn O'Donoghue (Ceann Comhairle; Kerry South, Ceann Comhairle)
Link to this: Individually | In context

Is that agreed? Agreed.

Photo of Paul Connaughton  SnrPaul Connaughton Snr (Galway East, Fine Gael)
Link to this: Individually | In context

Like previous speakers, I welcome this Bill. Fine Gael welcomes the introduction of measures to deal with some of society's most serious problems. Having listened to a good few Deputies speaking on this legislation, it appears that it is getting universal approval.

The most shocking statistic I have heard is that the perpetrators of just 12% of the fatal shootings that have taken place over the past 11 years have been brought to justice. It is obvious that the efforts that have been made to apprehend such people have not been successful. The insidious intimidation of people in the heartlands of Dublin and Limerick is now spreading all over the country. Intimidation is a dreadful thing when it gets into people's minds. A ripple effect makes people afraid to trust even those who live beside them. We know about intimidation following the Troubles in Northern Ireland but the intimidation now is insidious and getting worse by the hour.

Like every other legislator here I believe in the rule of law, the book of evidence, the jury system and so on. The problem is that many involved in the sort of crime for which this legislation is intended successfully spread rumours saying they think someone rang the Garda Síochána confidential line, irrespective of whether anyone did. I hope that none of us will ever be subject to this kind of intimidation. We have a responsibility to protect people who are good, just and genuinely want to do well. They are to be found everywhere, even in the heart of gangland slums. We do not give enough time in this House to the psychology used in those areas to frighten the living daylights out of people. People saw on television the person in Limerick giving the fingers to everybody. He was a young fellow whose name I forget but I will never forget that image, which said that as far as he and his friends are concerned, they care for nobody.

Any interference with the jury system is very serious because we are proud of that system and most of the time it works very well. Once the people at whom this legislation is aimed cross the line in the sand we must do much more than is contained in this Bill. I agree entirely with the contents of the Bill but the minute we talk about bugging devices and so on we can rest assured that the people on whom they will be used will use the same system or a more sophisticated one to block those devices. The thugs have the money and are able to pay for the brains. They would not do it themselves. They are going through the legislation line by line, as we speak. They might not be able to defeat it legally, or at least I hope not. I hope the legislation will hold up. I am not a legal expert so I can only believe what I am told in that regard.

It is right that the Garda, the Defence Forces and the Revenue Commissioners should be able to do these things now because we have a serious problem. They will, for instance, be able to break into houses or other buildings and put in all sorts of state-of-the-art bugging devices. It is possible that the flower pot will have a bug in it and the bed post might have one.

Photo of John O'DonoghueJohn O'Donoghue (Ceann Comhairle; Kerry South, Ceann Comhairle)
Link to this: Individually | In context

I hope that will be the only pot with one.

Photo of Paul Connaughton  SnrPaul Connaughton Snr (Galway East, Fine Gael)
Link to this: Individually | In context

The James Bond films will be nothing compared with what those guys get up to when they get going. We need to ensure that we can instill confidence in the public that the Government and the establishment of law and order will prevail. I know they will but many people are disconnected. One would want to be very naive to believe, for example, that a witness protection programme in any state could really protect one because all the people involved in a crime know where the witness is placed, no matter what name he or she is given.

This Bill will help but it will not change what is happening because the problem was allowed go too far. We know that there is a major disconnect among people in many housing estates. People do not like to say so publically but there are many areas outside the bad areas of Dublin, Limerick and other cities which the gardaí are not allowed to enter. That is a bad start. Whatever went wrong with the way the Garda management conducts its business, under Government direction, over the past ten or 12 years the concept of the community garda was forgotten. If we do not get information about what is happening on the ground in the best and worst areas we will not have it when we need it most.

Even the worst criminals start small and continue if they get away with anti-social behaviour and so on. I appreciate that many of them come from broken homes where their parents could not care less whether they are in jail or go to school. That is a serious problem for society. Even with the major cutbacks that we must endure over the next few years there should be no reduction in the local activity of the Garda and the intelligence they can gather at community level. As soon as the Garda payroll is cut the problems start. I have never seen a crime being solved or information gathered from a squad car, it is always done on a personal basis by the community garda. Vicious crimes are a different matter. I started my career as a youth officer and I fully appreciate, as most Members do, that the trouble starts at that level but we cannot wait for the evolution of today's youth. While we must work with them we have to take on the other guys now in every shape and form.

I thank the Oireachtas Library for the Bills Digest which provides an excellent resumé of many parts of this Bill that I do not have time to go through. It is an excellent document.

The Bill strikes the balance between the right of the individual and the right of the public to go about its daily business in the community.

I wish to refer to the problem of intimidation. The current backdrop to this country reminds me of Seán O'Casey's play "The Shadow of a Gunman". There are so many people, particularly those connected with the drugs trade, who genuinely believe that if they are ruthless in intimidating all around them and act as armchair generals, they can make people do the dirty work for them, and they will become immensely rich. There is no doubt the drug culture is at the centre of all this. The average age of those involved in the drugs trade has fallen significantly over the years. Many of them in so-called influential positions, who are pulling the strings, are in their early twenties. It is chilling to think of what they are capable of doing. A few years ago, it used to be said that at least those involved were 15 or 20 years older and that they tended not be as austere, harsh or ruthless as the people who are there now.

To take a typical case, a person may arrive in charge of a patch at a young age, from a poor background and with no social skills or education. Nonetheless, that person will have access to millions of euro, and one can imagine what such a person will do to keep control of his so-called kingdom. Against that background, the Bill seeks to allow the Garda Síochána to infiltrate those particular circles. We hope it will do so. It is important to be able to infiltrate these gangs, charge their members in court, obtain convictions and put them behind bars.

More importantly, it will send a signal to the community and to the public at large that if people engage in such activity, they will be caught. Given that only 12% of them were caught in the plast 11 years, they can say it is worth their while because there is an almost 90% chance they will not do time in prison. Unless those figures are changed and we get better results, the problem will multiply. It will happen anywhere there is this sort of loot, which ordinary people cannot imagine. The Saturday night lottery win is nothing compared to what those guys are dealing with. Unless we can infiltrate that terrible circle we will be in for a woeful whirlwind over the next four or five years.

Photo of Jimmy DeenihanJimmy Deenihan (Kerry North, Fine Gael)
Link to this: Individually | In context

I thank Deputy Connaughton for allowing me to use some of his time slot. Fine Gael has been calling for some time for such legislation. We think it is critical in the fight against crime and in recent years we have proposed a number of measures to aid conviction rates against criminals. A raft of legislation has been introduced in both Houses and there have been strong statements on how effective it will be, but I hope no loopholes will be found in this Bill. Deputy Connaughton referred to this but I hope the legislation has been well proofed so that criminals will not be able to avail of any loopholes.

Evidence garnered from the use of mobile phones will be critical when used in court. At present, gardaí can listen in to such conversations and gather information but it cannot be used to obtain a conviction. That is what it comes down to. According to available statistics, only 12% of the 171 shootings that have taken place in the past decade have resulted in convictions. That is a very poor result. Additional resources will have to made available for the Office of the Director of Public Prosecutions and the Garda national surveillance unit to ensure the effectiveness of the Bill when enacted. Fine Gael has been calling for some time for the establishment of a DNA database, which has been discussed in committee. There should be a European database and the sooner one is introduced, the better.

I wish to refer to what is happening in Limerick in particular. The Bill is a response to gangland crime in Limerick and Dublin, but more so in Limerick, given what has happened recently, including murder and the intimidation of witnesses and other innocent people. Unfortunately, this is no longer a Limerick problem because the Limerick gangs and their associates have developed vast networks all over the region. I am particularly aware of this since I live in the neighbouring county of Kerry. These gangs are now developing their networks from Tralee northwards through Listowel, into west Limerick, Abbeyfeale, Glin and other places. It is only a matter of time before they are fighting for their own turf in those areas to defend the networks they have set up. If this is not curbed, we could have a regional problem, rather than a local one in Limerick. The situation is currently controlled by gangs and their associates in Limerick. Families have been mentioned in the city in this regard, but the problem is much bigger than those families because they do not have total control of the drugs trade there. People think it is all controlled by a few tightly-knit families, but it is even bigger than that. Obviously there are rich pickings and the movement of traffic in the Shannon Estuary provides an easily accessible point for the importation of drugs.

It is my duty as a politician to express my concern about what I see. In addition, I am receiving information from Garda sources on what is happening in towns such as Listowel and Tralee where there is a ready supply of drugs coming from Limerick city. There is major control by gangs in those areas, which is sophisticated and fairly well organised.

I welcome this Bill which we have been seeking for some time. I hope the necessary resources will be put in place to ensure its effectiveness. It is just another weapon in the fight against criminals who are really challenging democracy and the very stability of our country. This is one aspect upon which we can all unite in this House. We must take on these criminals, be they in Limerick, Dublin or elsewhere.

I welcome the Bill and urge its speedy enactment and implementation.

12:00 pm

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
Link to this: Individually | In context

I welcome the opportunity to contribute to the debate on this legislation. I acknowledge the fact that, in 2007, my colleague, Deputy Rabbitte, proposed a similar Private Members' Bill. To some extent, that is the context in which we are discussing this legislation.

As some of the advisers present will be aware, following the 2002 general election, Mr. Michael McDowell was appointed Minister for Justice, Equality and Law Reform and I served as Labour Party spokesperson on justice. During the former Minister's term in office, he introduced legislation on a serial basis and his Department resembled a factory producing legislation. The Minister was a flamboyant character who believed legislation, which he introduced almost weekly, would solve every problem. In 2004, following a gangland killing, he made the now famous remark that the murder was the sting of a dying wasp and he had gangland crime under control. That year marked a turning point in the sense that the character of drug addiction in Ireland changed from being largely heroin based to being largely cocaine based. Cocaine has since bypassed heroin, the preferred drug in the capital city since 1970, as the drug of choice. After three decades of hard drug abuse, heroin distribution networks have spread throughout the country, especially to urban areas, and the problem is largely out of control.

Drugs and guns are widely available and form the backdrop to this legislation. The use and abuse of illicit substances and firearms causes gangland turf wars over profits with the result that gangland activity has become embedded in Irish criminal culture and previously ad hoc criminal activity has become organised. The largest seizure of gangland weaponry in the history of the State was made in September 2007 when 41 different weapons were seized in a single haul. The seizure followed a four month international investigation into the activities of leading Dublin and Limerick criminals. The firearms are believed to have been destined for crime gangs in both cities which had linked up. The operation involved police and customs services from the Republic of Ireland, Northern Ireland and the Netherlands. That is the position as regards guns.

Shortly before this seizure of firearms, the largest ever drugs haul in the history of the State, worth approximately €500 million, was made. Ireland has clearly become a marketplace for drug barons and, as an easy access point, has become a launching pad for the global distribution of drugs. The world market in drugs is large and lucrative. According to the United Nations, for example, the illegal drugs trade is a massive global industry with a highly sophisticated international supply chain. UN figures show that illegal drugs account for 8% of world trade and are worth more than the combined global market for textiles, clothing, iron and steel. The United Nations Office on Drugs and Crime estimates the global illicit drug market was worth $400 billion in 2003. Of more than 200 million drug users worldwide, those using cannabis, marijuana, hashish - THC - accounted for the largest number, at 162 million users, while the numbers using amphetamines, methamphetamines and ecstasy is estimated at 35 million. The number of users of opiates - opium, morphine, heroin and synthetic opiates - is estimated to be 60 million, while some 30 million people use cocaine.

In 2007, the United Nations International Narcotics Control Board noted some emerging trends in its annual report, including the emergence of new drug smuggling routes into Europe, in particular, the practice of stockpiling and repackaging cocaine from South America in west Africa before it enters Europe. Ireland is one of the ports of call for the introduction of cocaine into the European market.

The report also noted the increased cultivation of coca bushes, from which cocaine is derived, in Peru and Bolivia as crop eradication programmes reduce production in Columbia. It noted a 17% increase in illicit opium poppy cultivation during 2007 in Afghanistan, the country which currently accounts for 93% of the global market in opiates. In light of the ongoing war in Afghanistan, it is incredible that the United States and other members of the international community involved in the war have not been able to curb the cultivation of opium. The sale of opium to the West is one of the reasons for the Taliban's success. It is ironic that profits generated from this activity are used to fund arms purchases for the Taliban.

The context in which the legislation has been introduced is, therefore, the growing drugs problem, both at an international level and domestically. I am well aware of how communities in my local area have been destroyed by drugs over the years. The Minister of State, Deputy John Curran, will be aware from his area that the use of drugs is a major contributory factor in anti-social behaviour and many other forms of serious criminality in our communities. The drugs problem has become embedded. For example, 75% of those who are sent to our overcrowded jails have drug problems. Moreover, the activities of the Garda are strongly focused on combating drugs because the profile of criminality has changed dramatically over the years.

It is essential that secret or covert surveillance becomes a major tool for law enforcement agencies in acquiring information which, under this legislation, they will be able to use as evidence in court to secure convictions. The purpose of the Bill is to facilitate this process by providing a statutory basis for the conduct of covert surveillance by law enforcement agencies not only in the area of justice, but also by the Defence Forces and Revenue Commissioners. It also provides a formal approval process with which the relevant agencies must comply if the subsequent surveillance is to be deemed legal. It introduces oversight and regulatory safeguards to try to preserve the confidentiality necessary for the successful use of surveillance and provides for the admissibility in criminal proceedings of covertly gathered information.

This legislation gives the authorities powers to plant bugging devices, enter premises and introduce tracking devices. Information gathered in this way may be used in court in the fight against crime. Law abiding citizens and the State must be protected from criminal and subversive threats. As I noted, the use of good policing and proper approaches in earlier years would have allowed us to address the issue sooner. The problem is now out of control and requires the introduction of new tools and mechanisms of this nature to protect citizens and the State. At the same time, the right of law abiding citizens to private enjoyment of their home without State interference and intrusion is paramount. Citizens' rights are strongly protected in the Constitution, which guarantees citizens' right to privacy and personal rights, and in domestic law since the incorporation in law of the European Convention of Human Rights in 2003.

Article 8 of the European Convention on Human Rights upholds very strongly the citizen's right to respect for private and family life, home and correspondence, without interference. The relevant section of Article 8 states everyone has the right to respect for his private and family life, home and correspondence, that there should be no interference by a public authority with the exercise of this right, except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of rights and freedoms of others. It is a comprehensive statement on the protection of the rights and privacy of the individual citizen.

This Bill seeks to balance the intrusive nature of the activity envisaged in it and the trust in many of its provisions and provides safeguards to protect against abuse. For example, prior authorisation for surveillance by a District Court is required and this measure is welcome. Authorisation is provided for a three month basis and a longer period requires a fresh application, all of which is proper and correct. Secure storage of the data and authorised access is required to access that data, which is designed to protect privacy and the other rights of the person involved.

The complaints mechanism to be put in place for citizens and compensation of €5,000 and-or a referral to the Garda Ombudsman Commission where contravention of the surveillance powers occur are provided for and are appropriate. The appointment of a High Court judge is envisaged to oversee the operation of the Bill and make regular reports to the Minister which will be presented on the floor of this House. All such provisions are highly desirable.

However, there are two sections of the Bill which open the door to abuse regarding these new powers. Section 7 makes provision for a superior officer to give approval for surveillance for up to 72 hours without recourse to an application to the District Court. This provision is permitted where, for whatever reason, time is of the essence. It is fairly difficult to imagine a situation whereby an officer would not have access to the courts over a period of 72 hours, which is three full days. It is difficult to justify having a three day provision. A weekend, which is 48 hours, is one thing but 72 hours envisages not just a weekend but virtually half a week where the courts would not be accessible. I would like the Minister to outline the justification for that period.

This proposal is something of a lazy officer's provision, and can be easily abused and used for what we often hear barristers in court call "fishing expeditions". Surveillance may not be required to the same degree or it may not be easy for the particular officer to stand up for evidence that would pass muster in the District Court before a judge to get such covert surveillance.

If one plans to interfere with a person's privacy and home, and trespass and use tracking or bugging devices it is very important the mechanisms in place are foolproof to ensure there is no abuse, because such evidence will subsequently be used in court. That is the intention. This is designed to provide flexibility, but the danger is this is the lazy officer's way out and will be abused.

Section 14, which is described in the explanatory memorandum as a core provision of the Bill, is very worrying. It provides for the admissibility of evidence which has been obtained by means of surveillance, even in circumstances where a law has been breached. We have seen how such issues come up in the courts and the amount of hassle and damage this can do to the process.

The explanatory memorandum, which puts the operation of this section in a stark fashion, states section 14 is a core provision of the Bill. That is a bad sign. It further states the section, "deals with the issue of admissibility of evidence in the narrow and very specific context of evidence obtained by means of surveillance", in other words, evidence obtained under the provisions of this Bill, and it goes on to state:

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/officer to comply with a requirement of an authorisation or written record, is admissible in certain clearly defined circumstances as set out in the section.

It then drives the point home by stating, "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".

This is a dangerous provision to include in the Bill. It is too wide, general and open to question, and is also too open to abuse. If an officer knows, as a last resort, that he or she will be able to present evidence in court, even if they breach the law or authorisation they are given, or do not comply with what they are obliged to do by law, they can proceed as though they had not breached it.

I am concerned about the broad nature of section 14. It seems to be an open-ended invitation for the relevant authorities engaged in the investigation to take shortcuts and become lax in their procedures. If there is facility to do that it will happen and, as time goes by, the procedures will become looser and looser, there will be more breaches of them and the entirety of the legislation will be thrown into disrepute. There will be costly wrangles in the courts. These two areas require tightening up, otherwise I envision a situation whereby the Constitution will be breached, there will be constitutional cases, the European Convention on Human Rights will be infringed and people will go to European as well as domestic courts.

In recent times, we have become aware of the case of Mr. Ciaran Boylan, which I raised in this House and outside it. I understand the Leas-Cheann Comhairle raised it in 2006 and 2007. It is going on for as long as that. It demonstrates the manner in which a law enforcement agency can go astray in its fight against crime and drag the component parts of the criminal justice system into a very unsavoury situation. The improper use of Mr. Boylan, a notorious drug dealer, by members of the Garda in their law enforcement capacity and activities, has embroiled the Director of Public Prosecutions, the courts, the Garda Síochána, the Garda Ombudsman Commission and even the Department of Transport.

If correct procedures were followed and the law was strictly observed, a convicted drug dealer would now not be in possession of an international haulage licence, which he is, and which facilitates the drug importation and possession of which he has already been convicted. Neither would he be free to walk the streets but would instead be serving a minimum sentence of ten years. It is very easy for the proper procedures to be breached, unless the regulations are very tight, even though the best intentions are laid down in law. The result is that the entire criminal justice system comes into disrepute.

Photo of Michael KennedyMichael Kennedy (Dublin North, Fianna Fail)
Link to this: Individually | In context

Tá áthas orm labhairt ar an Bhille tábhachtach seo. I welcome the opportunity to contribute on the topic of the new Criminal Justice (Surveillance) Bill.

As every Deputy in the House is aware, there is hardly a village in the country that has not been affected to some extent by drugs. I welcome the fact that all Deputies whose contributions I have heard, and, probably, all other Deputies, will support this Bill. It is one of the most important Bills that will have been passed for some time. I acknowledge the presence of the Minister of State, Deputy John Curran, and formally congratulate him on his re-election. While this Bill is sponsored by the Department of Justice, Equality and Law Reform, it deals with an issue that constitutes the biggest threat to our society at the moment, which is drugs. The Minister of State is playing an important role in introducing his new drugs and alcohol strategy, which we will all welcome.

Not since the 1970s and 1980s when we had the threat to the State from IRA activities have we had the need for special legislation to deal with a crisis such as this. There is nobody in Ireland who does not abhor the ruthless killing of criminals and also, unfortunately, innocent victims. As I go about my constituency canvassing with my local councillors and candidates, I can see that this Bill is very much in the public eye. People have commented on the necessity for it and they believe the detail of the Bill is needed to help gardaí in their important work. The Garda Síochána itself has been calling for it. Deputy Rabbitte mentioned yesterday that the Garda was not in favour of the provisions of this Bill. I do not think he really meant to say that because I know from speaking to the Garda Commissioner and from the gardaí in my own constituency that drugs are the biggest problem they face. The Garda Síochána wants to see this legislation enacted because it has not been able to get convictions due to lack of evidence and witness intimidation. If witnesses are intimidated they will feel less inclined to co-operate with gardaí because of the real threat to their lives and, unfortunately, to their families.

If we go back to the 1970s and 1980s, when the Special Criminal Court was brought in, we saw direct results whereby the courts were able to make convictions and take hardened terrorists off our streets. The peace process that followed was facilitated by our being able to deal with those people who, for a time, seemed to be able to go about with immunity, use arms and so on. The threat to our legal and courts system at the moment is of paramount importance. Deputy Connaughton referred to a young thug from Limerick who gave two fingers to gardaí, and to society, when leaving a court some years ago. The population at large is appalled to see such things. We do not expect that such people, whom I regard as scumbags, should be able to show disrespect for our court system. It is frustrating for the gardaí who have to deal with those individuals to see them walk out of court on some technicality or due to lack of evidence. Among the people I have spoken to, nobody wants to see such behaviour. Most genuine citizens regard it as appalling that young pups can show such disregard for our gardaí and our legal systems.

Many speakers yesterday were from the two areas most affected by gangland crime, Limerick and Dublin. While my own constituency of Dublin North has not had the same number of killings, there have been some, and bodies have been dumped in the more rural parts. We must pay tribute to the efforts of the Garda up to now. Despite the problems of presenting concrete evidence in court and witnesses not being forthcoming, it has succeeded in achieving quite a number of successful prosecutions. We must commend it for that. Once this legislation is passed, the Garda will be able to bring criminals to court in a much faster and more efficient manner. The sooner we can take these evil monsters away from society, the better.

Surveillance equipment has been used abroad for quite some time. If one watches not only television programmes, but even foreign news programmes, one will frequently see how courts have dealt successfully with hardened criminals. It is regrettable that Ireland is at this stage, but it is the reality. We cannot live with the situation any longer; we must make hard decisions and give the Garda the necessary facilities to enable it to do its work. We expect our police to be one step ahead of criminals. It is ridiculous that people can avoid prosecution on technicalities and, in particular, that they can intimidate witnesses and question the evidence gardaí produce on frivolous grounds. Unfortunately, our court system must deal in hard facts. That is why this Bill is so necessary.

The sad fact one realises when reading court cases and so on is that often the evidence is not sufficient, in legal terms, to convict a person of a crime. Under the provisions of this Bill, where a crime has been committed and every knows it has been committed - such as a tiger kidnapping, robbery or shooting - and where we have good surveillance equipment, the Garda will be in a position to achieve a successful prosecution. To judge from the way surveillance was used in the 1970s and 1980s against subversives, this new law will be a success. The Garda Síochána wants the extra resources because it needs to deal with drug barons.

Another area in which I feel surveillance will help is among the known contacts of criminals. When speaking to gardaí in my own area of Dublin North, and when I attend neighbourhood watch meetings and meetings of the joint policing board, with which I am involved, the gardaí will often mention that they know certain people are attached to a recognised criminal. It is galling from their perspective that they cannot apprehend those individuals. This legislation will strengthen the role of the Garda by enabling it to put such contacts under surveillance. Regrettably, when the leader of a gang is killed, there is always a replacement to step into that person's shoes. If the Garda eliminates those contacts who are second in command and so on, this will help to remove the drug problem in our society. Surveillance is an effective means of achieving that.

There have been too many innocent victims of gangland violence. This society can no longer tolerate a situation where a law-abiding citizen such as Shane Geoghegan in Limerick, who happens to look like somebody else, is shot dead. We must do everything we can to reduce the number of such incidents. There is nothing that sickens people more than the murder of an innocent victim who happens to be in the wrong place at the wrong time.

The Garda must be given whatever support it requires to deal with tit-for-tat revenge killings. Members of the various rival gangs are known to the Garda but without hard evidence, no action can be taken against them. This legislation will enable gardaí to be more proactive in this regard. When a gangland member is killed, one can be almost certain that a member of the rival gang will be killed within days or weeks. I have no doubt the Bill will facilitate the Garda in pre-empting such retaliatory killings.

It was good to see so many young people in the Gallery earlier. Parents must be far more vigilant in monitoring where their teenagers are and what they are doing.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
Link to this: Individually | In context

They are safe enough in the Chamber.

Photo of Michael KennedyMichael Kennedy (Dublin North, Fianna Fail)
Link to this: Individually | In context

We would hope so. As I recall from my own experience, our society has always had a problem with underage drinking, although it may be worse now than ever before. What is different from the past is that drugs are now part of many young people's lives. Much of this comes down to parental control and supervision. It is particularly regrettable that some young people who take drugs go on to become drug pushers and ultimately hoods who have no problem with carrying guns. Parents must bring their influence to bear on their children. The recent newspaper reports about the 14 year old in Limerick who was arrested wearing a bulletproof vest are indicative of the mindset of some young people. A 14 year old should be wearing his or her club colours or school uniform, not a bulletproof vest. It is reprehensible to discover there are teenagers wearing bulletproof vests and carrying firearms which they may be willing to use. Young people should be encouraged to become involved in sport and other youth activities within their communities. A teenager from Limerick should be thinking about the Munster rugby team or the Limerick hurling and football teams instead of who he or she intends to shoot or maim.

Communities must be proactive in terms of observing what is happening in their midst. For example, many drug barons live in apartments in urban areas from which they run their drugs empires. Local residents should be more observant of people who do not interact with them and whose activities are clearly suspicious. While neighbourhood watch schemes have always been used to counteract petty crime, they can also be useful in monitoring more serious issues such as drug dealing.

I read a newspaper report today which described how a well-known gang burgled several premises in Tipperary and Limerick yesterday. Following a high-speed chase, those involved were apprehended by gardaí in Limerick. Two vehicles were written off and there were three arrests. The gardaí were aware of the identity of these people but are constrained in the actions they can take against them. If the surveillance measures provided for in this legislation were in place, these individuals might already have been in prison instead of being free to ransack the countryside and put other motorists at risk. It is fortunate that they were apprehended and that neither of the gardaí involved in the car chase was injured, even though their car was written off. It is no longer acceptable that individuals who are known to the Garda are at liberty to go on a rampage of looting and shooting.

I read in recent days that the family of the late Roy Collins in Limerick are now receiving death threats, presumably from the same scumbag thugs who killed their loved one. This type of intimidation can no longer be tolerated. That is why tough legislation is required. I welcome the broad support for the Bill from most human rights groups. These little scumbag pups cannot be allowed to dictate to our society.

Earlier this week, a public meeting organised by residents of Dolphin House flats in Dolphin's Barn to discuss drug dealing in the estate was disrupted when local gardaí received a telephone call stating that a bomb had been planted on the premises. Sure enough, a pipe bomb was found outside the building. The thugs operating in this estate are painting the names of community gardaí working in the area on walls and buildings. This Bill must be put in place as soon as possible so that such individuals can be brought to justice. The sooner these drug barons and all their accomplices are behind bars the better. Law-abiding people will welcome the introduction of this legislation.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
Link to this: Individually | In context

All law abiding citizens will support, in principle, legislation, as cited in the Long Title to the Bill, "to provide for surveillance in connection with the investigation of arrestable offences, the prevention of suspected arrestable offences and the safeguarding of the State against subversive and terrorist threats". Everyone is in favour of the principle but my concern is that the devil may be in the detail. It is important, therefore, that the Bill navigate a passage among the restrictions and limitations in the fundamental rights articles of the Constitution, the European Convention on Human Rights - particularly Article 8 providing for the right to privacy - and the precedents laid down by Supreme Court decisions, particularly regarding the exclusionary rule. While I support the view that anything we can do to put drugs barons, crooks and criminals behind bars, it is important that it is done properly. My comments on the Bill are related to that concern because otherwise, convictions will be set aside and the criminals will not go to prison.

The Garda has always engaged in surveillance, and rightly so. Surveillance is a fundamental job of a police force. We constantly demand intelligence led policing and surveillance is a part of that. There is a national surveillance unit in the Garda Síochána. In analogy to the Hippocratic oath, in passing legislation we must first take care to do no harm. I hope the present surveillance operations will not be limited or reduced by the Bill.

Section 1 defines surveillance as the "monitoring, observing, listening to or making a recording of a particular person or group of persons or their movements, activities and communications". That is probably what is taught to Garda recruits on their first day in Templemore. It is a basic part of the job of a garda and seems to make sense. However, section 3 states "a member of the Garda Síochána, a member of the Defence Forces or an officer of the Revenue Commissioners shall carry out surveillance only in accordance with a valid authorisation [that would be under section 4] or an approval granted in accordance with section 7 or 8 ". That is clear and specific. Will normal surveillance will be stopped as a consequence of that very clear and specific section? I am worried about the framing of section 3 and I urge the experts in the Office of the Parliamentary Counsel and the Office of the Attorney General to have another look at it.

Other provisions in the Bill may get around what appears to be a blanket restriction on any surveillance, other than with an authorisation granted under sections 7 or 8, or a valid authorisation. Subsection 2(2) states: "Nothing in this Act shall render unlawful any activity that would otherwise be lawful". This could be used as a general point. I do not know. There may be a saver in subsection 14(2), which states: "Nothing in this Act is to be construed as prejudicing the admissibility of information or material obtained otherwise than as a result of surveillance carried out under an authorisation or under an approval granted in accordance with section 7 or 8 ".

One could argue that what seems clear and specific in section 3 could be got around. My main concern is that we may be creating a lawyers' picnic here. We may find lawyers defending serious criminals and, while merely doing their job, using the provisions of the Bill to have certain evidence excluded from the court. I raise this matter not by way of criticism but in a genuine effort to point out a possible route around the provisions of the legislation which could cause severe havoc and damage to the normal Garda activities of surveillance and the giving of evidence. I suggest that this point be looked at carefully to see if a recasting or reframing of the Bill might be necessary.

Every law abiding citizen will be supportive of legislation which deals with the problem of serious crime. While the number of indictable offences - now referred to as headline offences - has not increased substantially, the violence component within the figures has increased. I had a major difference of opinion with a previous Minister for Justice, Equality and Law Reform, the former Deputy Michael McDowell, on this point. A number of journalists also seem to think one should simply accept the figures as they are. When dealing with figures I operate on the basis that there are lies, damned lies and statistics. To get a picture of what is happening one must go behind the figures.

The serious violence component of the crime statistics has increased substantially.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context

Hear, hear.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
Link to this: Individually | In context

It is important that we accept this fact, in confronting the figures and in taking the necessary measures to deal with them. I recently tabled a parliamentary question requesting the number of murders recorded in the last ten years in which a firearm was used and the number which resulted in proceedings and convictions. The figures confirmed the point I am making. In the years 1998 to 2009, the number of murders recorded were four in 1998; 12 in 1999; 12 in 2000; nine in 2001; ten in 2002; 19 in 2003; eight in 2004; 22 in 2005; 26 in 2006; 18 in 2007; 21 in 2008; and 11 in 2009 to date. The conviction rate is very worrying. The conviction figures for the same period are: one in 1998; five in 1999; one in 2000; one in 2001; three in 2002; one in 2003; three in 2004; two in 2005; two in 2006; and none in 2007, 2008 or 2009. In those ten years, firearms were used in 172 murders resulting in 19 convictions.

There is something seriously wrong here.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context

Hear, hear.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
Link to this: Individually | In context

I know there are problems regarding evidence and so on. In any serious situation one will come up against problems. Our job is to try to find solutions. That means accepting there is a serious problem and being prepared to find a solution.

I would like a new examination of how we categorise crime. There should be some way to categorise violent crime and serious crime that is not just indictable crime carrying a penalty of more than five years. We need some way to make things clear so that the Members of this House, the Government of the day - I am not sure how long this one will last - and the public will be reminded of the extent of the problem and the need to confront it.

Another worrying development is the growth of regional enclaves. The Garda would object if I said these places were "no-go areas", as it is an incorrect description. Where drug lords, crime barons and vicious criminals are the overlords in the area and hold sway to a considerable extent over the decent people in the community, we must sit up and take notice. Unfortunately, the town of Limerick, which is a capital as far as rugby is concerned, is also a byword for areas where these people have considerable sway. There are other parts of the country in a similar situation, including parts of this city. We must accept that these people are effectively outside the law. When I was young and I read stories about the wild west, such people were known as outlaws. These people today are outlaws as they do not respect the rule of law.

We are facing a huge threat to our society, and I do not think we have confronted it adequately. We must mobilise all our forces to do so. We did it when there was a threat from the IRA. That organisation was attempting to subvert the State and its institutions because it did not recognise its courts and so on. It was confronted and a common view was formed among most elected representatives at the time that it had to be confronted. A similar attitude must be taken to this problem, which means accepting that the threat is there and that there is no simple solution to it, but looking at the component parts of the solution. There is no simplistic way such as internment. I do not think it worked during the last period of subversion of the State and I do not think it will work this time. We must try to work within the rule of law, change the law as required and provide the resources as required. That is the only way.

We need to look at where we can improve the law, which includes serious consideration of this Bill, which I accept is an honest effort. However, there are many other areas to be examined. Why are we so dilatory and tardy in doing the things that everybody accepts should be done when it comes to law reform? DNA is a marvellous tool in the fight against crime, so why have we not got the database, the forensic laboratory or the legislation required? I do not want to hop political footballs, but we are constantly told that great work is being done and then we get the legislative programme every session, in which we are told that the legislation required is expected by Christmas. Is that Christmas 2009 or when? I have always taken an interest in this issue. I looked back over the legislative programme over the past few years and I found the criminal justice (DNA database) Bill, which was to provide for the establishment of a DNA database and was expected to be published in 2006. I know there are problems with recent legislation - there is also a case in the UK - but our job is to get over these problems and we must mobilise a much more urgent effort to overcome them.

The same issue arises regarding procedural reform. There are references to the Special Criminal Court. I do not know whether the use of the Special Criminal Court for gangland crime is the panacea that some people think it is. If it will provide an improvement, I am all for it. That court was mainly necessary due to the intimidation of jurors. The problem with gangland crime has not mainly been about intimidation of jurors, but rather intimidation of witnesses, although I am open to correction on this. If it will help, bring it on. If there are constitutional problems, as the Taoiseach hinted recently, then we should hear about them so we can find a solution to them. We have a committee dealing with the Constitution and if there are problems, this is a useful forum in which we can confront them and find a solution. Let us not just be broadly hinting at and talking about a solution. If the Special Criminal Court is part of the solution, then let us agree on it. If there are problems, let us overcome them.

I have also been in favour of electronic tagging. I can recall some interesting discussions about this, including discussions with the current Leas-Cheann Comhairle when he talked about the technical difficulties at the time. There are technical difficulties in dealing with electronic tagging, but they have been overcome in other countries. Ultimately, we succeeded in getting legislative provision for electronic tagging, but where are the electronic tags? We must have invisible electronic tags. Putting the legislation in place is only half the job. If there are technical problems, then we should overcome them as was done in other countries. Why have we not overcome them? Let us have the complete package and let us put it into operation.

I know that the country is half bankrupt from the activities of Fianna Fáil for the last ten years, but-----

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context

That is criminal as well.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
Link to this: Individually | In context

I am not yet recommending electronic tags for them, although now that I have put the thought in my mind, I will have to reflect on it. I know there are limitations on resources, but if there are difficulties, then we should redirect resources from areas of lower priority. I understand that there are difficulties in the office of the DPP and that we are putting pressure on that office to get more of these people behind bars. We must go through the proper processes and court procedures, so the DPP must be given the appropriate resources, if necessary by redirection from some other less important area.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
Link to this: Individually | In context

Alas, the Deputy has but one minute left.

Photo of Jim O'KeeffeJim O'Keeffe (Cork South West, Fine Gael)
Link to this: Individually | In context

I thank the Leas-Cheann Comhairle.

The same thing should apply to the database laboratory. Let us give this whole area the priority it deserves and needs from the Executive and the Department of Justice, Equality and Law Reform. This House should also give it priority in terms of resources and there should be a common view to mobilise these resources to ensure that the curse that has befallen parts of our major towns and cities in this country is lifted. We must ensure that those who have blighted those areas are deservedly put behind bars.

1:00 pm

Photo of Seán ConnickSeán Connick (Wexford, Fianna Fail)
Link to this: Individually | In context

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Photo of Aengus Ó SnodaighAengus Ó Snodaigh (Dublin South Central, Sinn Fein)
Link to this: Individually | In context

Gabhaim buíochas leis an Ceann Comhairle as ucht an deis seo a thabhairt dom labhairt ar an ábhar tábhachtach seo. Is é seo an chéad deis a bhí agam comhghairdeas a ghabháil leis an Aire Stáit nua atá i láthair.

This is a major piece of legislation. The bulk of surveillance conducted by law enforcement agencies to date in this State has been unlawful and hence has automatically fallen foul of the European Convention on Human Rights. Evidence gleaned from such surveillance has, therefore, not been able to assist prosecutions. We have had the worst of both worlds. I welcome the publication of this Bill because it will move us towards compliance with our human rights obligation and provide for the related evidence to be used in court, thereby increasing the likelihood of successful prosecutions in some cases.

Tacaíonn Sinn Féin leis an Bhille seo. Táimid sásta cuidiú chun an reachtaíocht seo a phlé chomh gasta agus is cóir. Dar ndóigh, caithfidh an iniúchadh cheart a bheith ann ar Chéim an Choiste agus ar an Tuarascáil. Molfaidh mé roinnt leasuithe forasacha chun iarracht a dhéanamh reachtaíocht níos foirfe le breis cosantaí a chothú, gan aon rud a bhaint ó bunphrionsabail an Bhille, dar ndóigh. Sula ndéanfaidh mé déileáil le sonraí an Bhille, ba mhaith liom roinnt ráitis ghinearálta a dhéanamh maidir le cur chuige an Rialtas i leith coireanna na gangs atá ag déanamh ionsaí ar an phobal atá an Stát, agus Baill na Tithe seo, ag iarraidh a chosaint. Creidim go bhfuil an cur chuige sin imithe ar strae. I roinnt cásanna, tá roinnt easnaimh móra ann.

I am concerned at the Minister's attempts to sell this Bill, via the media, as some sort of grand solution. There is a recognition since it was announced that this will not eliminate the need for eye-witness testimony and good old-fashioned Garda investigative work. We need to ensure that the Garda Síochána has the tools to carry out that work. We still do not have digital radio fully rolled out to the Garda. Digital radio, which cannot be intercepted by criminal gangs, is a simple tool which is in virtually every other country in Europe, including some of the poorest countries. Others have mentioned other tools that are unavailable.

There is a need for continuous community policing. If the Garda Síochána has the support of the community it will also get intelligence from those people because people want to protect themselves and be protected. We do not want the old-fashioned policing which came to prominence in the Morris tribunal and the Sallins and Dean Lyons cases. There is no role for that type of policing in Irish society.

In most cases witness testimony by members of the public will still be required. Therefore much more must be done in the area of witness protection. The repercussions of the recent murder of Roy Collins in Limerick are grave in the extreme. This murder is believed to have been in retribution for the fact that a member of his family testified successfully against a gangland hood some years back. Intimidation of the Collins family has continued. His father, Stephen Collins, was attacked again last week by a gang of nearly 25 criminals. These horrific crimes raise questions around the inadequacy of protections available to witnesses and their families.

Recent events in Dolphin House in my constituency have highlighted the links between State neglect, social exclusion and deprivation, drug dealing and crime. The failure of the Celtic tiger to visit the complex and of successive Governments to address the problems, social and housing in particular, in this and other working class estates has left them open to the type of activity that occurred in Dolphin House last weekend and early this week. The organised violence and intimidation aimed at the community and at the Garda Síochána was and is a direct challenge to the rule of law and the Garda. If that challenge is not met head on the community and its leaders will be left at the mercy of these thugs. Such violence will also have a knock-on effect, as has been seen in the past, for example, in Limerick where the same situation occurred. If the Limerick gangs had been tackled head on a number of years ago we would not have had the escalation, the lawlessness and the continuing feuding that has reached a scale never seen before in Limerick or in any part of this State.

The State must step in to tackle the gangs in Dolphin House but also must tackle the underlying problems and issues that led to that situation. Where are the regeneration plans for that estate? Where are the community games? The inhabitants have put up with years of neglect and the Celtic tiger never visited their estate. In this type of community, the people must feel confident that their estate has the backing to be able to stand up to the thugs. If not, there are people in the community who will not stand idly by and see their community brought into the abyss. I do not encourage this but the reality is that people will defend themselves. I have been made aware of this and have tried to discourage people from taking such action. The community must work with the Garda Síochána and the Garda must work with and for the people. That means protection. In the case of Dolphin House, Dublin City Council also has a role to play. It must deal with the anti-social tenants and the elements who are plying their evil trade in Dublin council estates. In return, the community will back both Dublin City Council and the Garda Síochána.

Witnesses must feel safe and confident that they and their families will be protected. No expense can be spared to this end. The legislation before us will not do that job on its own, if at all. Additional legislation and perhaps additional resources will be required for witness protection. As it currently operates, the witness protection programme will not do the job. That has been accepted by the Minister and by the Garda Síochána. The general consensus of those involved in the former witness protection programme is that it is of limited use in Ireland. The Garda Commissioner, Fachtna Murphy, recently emphasised how difficult it is to ask people to relocate abroad. The previous Commissioner, Noel Conroy, said that most people are simply too scared. The Director of Public Prosecutions, James Hamilton, said the programme is of limited use because the demands it places on those entering it are drastic.

A full range of protection for witnesses, short of secret relocation, must be explored and resourced. In the case of the recent Collins murder, if the the individual from the family who gave evidence had been relocated, his family would have remained at risk. It would have made no difference to the gangs who are willing to go out of their way to target and kill an innocent person, a State witness, and threaten his family. The challenge to the State is to stand up to those thugs.

In many ways, producing new legislation is the easy part. However, nine times out of ten the response we really need is practical and resource-based rather than legislative. The Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, claims that tackling crime is his number one priority. He has even used this as an excuse to annihilate the equality and human rights infrastructure through funding cuts, justifying this by his mission to fight crime. Laudable though that mission is, the evidence does not stack up. The Minister is in denial concerning the implications of his own Government's budgetary decisions for operational management and front line policing.

All the Garda associations, including the Garda Representative Association, the Association of Garda Sergeants and Inspectors and the Association of Garda Superintendents, have pointed out the brain drain and contraction of Garda numbers as consequences of the pension and income levies, the overtime ban and, in particular, the recent illogical recruitment and promotions embargo. Only last week, the president of the Association of Garda Superintendents clearly stated that early retirement requests are increasing. Coupled with the public sector recruitment and promotions moratorium, this means that management levels will be difficult to maintain. Ultimately, front line policing will suffer. The force does not even have the equipment and now there is the threat it will not have the members. We are in dire straits and there is a need to address that aspect of the recent budgetary decisions.

Is léir ón stair go n-ardaíonn coireacht, go háirithe coireacht atá ceangailte le drugaí, in am an mheathlú. Ní chóir dúinn an tráth eacnamaíochta seo a úsáid mar leathscéal chun cosantaí finnéithe, teaghlaigh agus an phobal i gcoitinne a chur ar leataobh. Ag casadh ar an mBille, níl aon rogha againn seachas an reachtaíocht seo a ghlacadh. Tá orainn é a dhéanamh de thoradh an cinneadh a rinneadh san cúirteanna.

This Bill is not optional. It is mandated by the 1937 Constitution, the European Convention on Human Rights and the jurisprudence of the Strasbourg court. Privacy is enshrined and is well recognised under Article 40 of the Constitution. Privacy is more precisely protected by Article 8 of the European Convention on Human Rights which states:

Everyone has a right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime for the protection of health and morals or for the protection of the rights and freedoms of others.

The key case detailing the thinking of the European Court of Human Rights in this field, which still prevails, is Klass v. Germany in 1978. In this case, the Strasbourg court ruled that states do not enjoy an unlimited discretion to subject persons within their jurisdiction to secret surveillance.

The court, being aware of the dangers such a law poses of undermining or even destroying democracy on the ground of defending it, affirms that the contracting states may not, in the name of the struggle against espionage or terrorism, adopt whatever measure they deem appropriate.

It further ruled that the court must be satisfied that whatever system of surveillance is adopted, there exists an adequate and effective guarantee against abuse. Obviously, that is what we are trying to address in the Bill. As Paul Anthony McDermott stated at the annual national prosecutors conference in Dublin Castle last summer:

The constant emphasis the Strasbourg court placed on the detailed provisions and criteria laid out in the German law makes it all the clearer that it is necessary for Ireland to set out its police powers in relation to covert surveillance and undercover detection in an accessible statutory framework subject to checks and balances and tailored to the need to protect the interests of democratic states. Any blank cheque written for the Irish legislature for An Garda Síochána in this area will not be honoured in Strasbourg.

The absence of such a statutory framework and the type of abuse to which its absence gives rise was highlighted by the Morris tribunal when it investigated Garda corruption in County Donegal. The third volume of the tribunal's report published in 2008 investigated allegations of covert surveillance and taping and I shall put some of the conclusions of that report on the record.

The tribunal pointed out that apart from the unusual Kane v. The Governor of Mountjoy Prison case, the Garda Síochána have been left without statutory guidance and the citizen without adequate understanding of the extent to which overt or covert surveillance may be carried out on an individual. The tribunal stated that it was disturbed and dismayed at the extent to which covert taping was conducted by gardaí not only of conversations with civilians, but of conversations between gardaí supposedly working together. It noted that was entirely wrong that gardaí should be recording persons, including their colleagues and senior officers, at will or contemplating or carrying out covert surveillance using electronic devices without any statutory guidance or regulation and without internal guidelines.

Mr. Justice Morris concluded that the legislature had a job to do. We are thankful the Minister has started the work by presenting us with this Bill. Obviously, the Garda also has a job of work to do and recent progress has been made in setting down guidelines so that never again will we have the type of corruption and skulduggery that Mr. Justice Morris investigated within the Donegal division.

On the interesting issue of surveillance, wire tapping and so on, I asked a previous Minister for Justice, Equality and Law Reform to guarantee that no Member of this House was under electronic or other surveillance. The answer I received from him was to the effect that two Members of the House were under surveillance. I do not know who they are, perhaps one might be a Fianna Fáil backbencher who was up to no good. However, can the present Minister give a guarantee at this stage that there is no surveillance of Members of this House? I do believe wire tapping is done anymore, it is more a case of electronic taps.

The culture of secrecy and the special branch agenda, which predominated in this State for the last 30 years is said to be at an end. However, I do not believe it is because in my constituency at Easter, members of the special branch were still monitoring Sinn Féin Easter Week commemorations. There is still a level of harassment of Sinn Féin members and I had thought that at this stage the special branch would have copped on, or at least the Garda Commissioner. I intend to raise this issue with him, directly.

Another aspect is that it is not just a question of surveillance by An Garda Síochána or the Defence Forces that needs to be looked at because although I am not a conspiracy theorist, external espionage groups such as MI6, the CIA or even Mossad are operating in Ireland. It is strange that we have never seen, as in other countries, an exposure of the activities of foreign security services. Very little action appears to be taken in this regard and they seem to be allowed to work at will. Perhaps we can address this at another stage, namely, the dirty murky world of political and economic espionage, which is aimed against this State and the people living in it. Perhaps greater sentencing might be considered for those involved in such activities.

I want to highlight a number of areas where, without interfering with the purpose of the Bill or compromising its objectives, it can be improved. I am disappointed that the positive safeguards, principally judicial involvement in the authorisation process, are not being extended to a broader range of surveillance techniques. A host of surveillance and covert policing techniques with inherent privacy implications are still to remain without lawful basis. I believe the European Convention on Human Rights is wide open to legal challenge, even where the use of such techniques might be justified and allowable, were it to be underpinned by legislation. In addition, the many great shortcomings of the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993 and the data protection provisions contained in the Criminal Justice (Terrorist Offences) Act 2005 still remain unaddressed. Also the principle of judicial authorisation as a norm is to be welcomed, but we need to tighten up in that area.

Constitutional practices in the United States contrast massively and favourably against the approach taken by Britain, which is what we are emulating, although I accept the need for the Bill to contain provisions for emergency authorisation in the absence of a judge being available. However, I believe certain amendments should be made in section 7 which deals with this eventuality. In urgent cases, section 7 allows a superintendent to authorise surveillance for a period of 72 hours. This needs to be tightened up. The onus should be on the superintendent to make an ongoing effort to obtain judicial authorisation and to document this effort. In addition, from my reading of the Bill, there is nothing to stop the Garda authorising 72-hour surveillance, breaking for 24 hours and then replicating such authorisation again and again - in effect, putting in place long-term surveillance without judicial authorisation.

There are a number of other issues I intend to address on Committee Stage. This legislation is required and that it will be useful in the ongoing fight against the criminal gangs in particular, which have become more and more adept at avoiding prosecution and are becoming more and more sophisticated. They seem to have all the resources they need and if the Garda Síochána is to tackle them it will need not just the legislation but the resources required by a modern police force.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
Link to this: Individually | In context

I take great pleasure in making a small contribution to this debate. I support the concept covered by the Bill because like other Members of the House I have tried over a number of years to focus on the growing levels of crime and the degree to which the public is being intimidated by the increased sophistication among criminal elements.

I am not certain whether this legislation should stand alone or be part of a more consolidated initiative to attack the criminals as they have been attacking society over several years. I am a greater believe in and supporter of people's civil liberties, which must always be observed, whether they are victims or criminals. However, balance must enter into the whole arena and should come firmly down on the side of the citizen. We have seen the development of criminal activity to such an extent in this country that the State has become a laughing stock.

The State is vulnerable and is itself a victim because its citizens are under intimidation and being threatened on a regular basis. Previous speakers have made reference to the intimidation of witnesses. That has been an enormous factor in terms of what has gone on in this country over a number of years. We have no evidence that jurors were intimidated but one can be certain that they would have been, as well as the witnesses, should this have been seen as fortuitous in the worldview of the criminals.

A pattern has been established in Ireland regarding crime levels, whereby young successful criminals start their activities by intimidating their next-door neighbours, kicking in their front doors, preying on senior citizens in the immediate area, "keying" parked cars, breaking windows and generally making a nuisance of themselves. Despite all the efforts of gardaí, public representatives and everybody else, they seem to go unchallenged because it is not worth the time, effort and energy needed to bring them through the system. In most cases it is not even possible to bring them through the system and in any event there is no place to put them. However, if we have not had a place to put them it is about time we got one. They should be given a clear indication by the courts and the institutions of this State that there is no time or place for them in this society. We have had enough and the time has come to take action.

The provisions in the Bill form only a part of what is required at the present time. I do not accept the view that we should stand by indefinitely while make varying attempts to address the issue. We have done that for the last ten or 15 years and it has not worked. How often do we hear of crimes, murders, intimidation carried out by people who have been described as "known to the Garda". That does not mean that there had been ongoing dialogue or the passing of correspondence between them and the Garda. It means that they had come under suspicion for some considerable time and that their activities had been noted. This legislation may be of assistance in grounding such activity and giving the Garda the necessary information that is required.

However, members of the public has become cynical in this regard, especially when they read, perhaps six months or a year after someone has carried out an obnoxious crime against some individual, that he or she was known to the Garda. The time has come when it does not matter whether such individuals were known to the Garda. If the have embarked on activities that constitute a threat to the citizens or institutions of this State then it is time to deal with them. I have come to the conclusion after much consideration, as have many other Members of this House, that the time has come to take them off the streets completely. We should then look at the degree to which they have organised themselves and the degree to which they, or their associates, have carried out criminal activity, including murder. I cannot understand why that is not possible. It was done under the Offence Against the State Act, and I know people might suggest there were some excesses there.

The problem we now face is much more serious than any we have faced in the history of this State. I do not know if people know or fully recognise that. The one thing which is certain is that as long as criminals know they can act with impunity, they will continue their criminal activities as long as they are remunerative, and criminal activities are very remunerative. We often read about how they holiday only in the best places and how they are exiles. We talk about tax exiles but we have criminal exiles as well who live the high life which is much emulated by other young up and coming criminals. The up and coming criminals start off with petty crime but they build up a reputation and become serious heavy-hitters in every sense of the word after a while. Anybody who gets in their way is vulnerable and under threat of intimation and extortion. In such a situation, the criminal with the most power rules the land.

I have great sympathy for gardaí in divisions in which serious heavy-hitters operate on a daily basis. The answer to this problem is to introduce consolidation legislation, put in place all the necessary backup, take these people off the streets once and for all and refuse to allow the people to be intimated on a regular basis by thugs who should be behind bars from the start.

We should start with the most high profile people at the very top, the people with the most romantic and lucrative lifestyles. We believe zero tolerance worked in the United States of America but it did not. In the United States of America, they started at the top and worked their way down. Eventually they got to the guys at the bottom of the crime ladder and were able to deal with them. Former Mayor Koch in New York started at the top and put the really heavy-hitters behind bars where they belonged.

I refer to the civil liberties and civil rights of the people carrying out this criminal activity. Everybody would agree that they have rights. The Minister who comes from the legal profession would take me to task on that very quickly. I am not a lawyer but I have read bits of the law from time to time. What amazes me is how the criminal elements have managed to circumvent the law and are now legal experts. They quote the law. They study it in prison and they operate from there.

How can some of these people organise their criminal empires from within prisons? I visited a prisoner recently and if I was the number one hitman from Chicago in the 1930s, I would not have been subjected to a better assessment and examination. I have no problem with that. It is as it should be. How in God's name have people managed to smuggle in their mobile telephones and all the trappings that go with them and have regular visits from their organisers, their hitmen and hitwomen and so on? We must deal with all those ancillary activities which are part and parcel of what is a growing crime problem.

I agree with my colleague, Deputy Jim O'Keeffe, that, unfortunately, the problem now is that many people, with the exception of a few crime journalists, have become complacent. They look at crime statistics and state that the level of crime in this country is not huge in comparison to other countries. I do not care about the comparison to other countries. We will look after our own country and we should deal with those who intimate the public in whatever way is necessary to put them behind bars as quickly as possible. We should do that by using the law and putting in place sufficient legislation to ensure that anybody involved in, or known to be involved in, crime is not on the street plotting and planning his or her next crime.

The bail laws are flouted on a regular basis. People charged with serious crimes are released on bail to commit more serious crimes, to intimidate more witnesses and to ensure that they can never be put behind bars. I cannot understand that. The law is being brought into disrepute and is being treated with contempt, as are the law-abiding citizens of this State who are also being intimidated on a regular basis. The Minister and the institutions of the State are being treated likewise.

The time has long since passed for playing around with these guys who are well organised thugs. All they have to do is to organise a hit on somebody and he or she is dead. I have been told that it only costs €500.

I mentioned the intimidation of witnesses. Some members of Judiciary have been very courageous in standing up to this kind of thing and some action is being taken. However, the Minister knows this is only skimming the surface of the problem.

If one needs proof of the seriousness of the situation, one should recount the number of occasions when people coming out of the courts have given the two fingers to photographers, news reporters, television cameramen, etc. That is how much respect they have for the law and the institutions of the State. What should be done in a case such as that is quite simple. The person should be brought back into the court and given an extra sentence. That would teach him or her a lesson. Unless that happens, such actions will continue. I do not know how the Minister finds it but I find it very offensive that some thug is able to have his or her photograph taken and put on the front page of a newspaper giving two fingers of contempt for the public. That is appalling as is the fact that our society has degenerated to that level. That we give rights to such people is a sad reflection on our society.

The time has come to ensure that the rights of the law-abiding citizen are not eroded by overly accommodating the rights of the criminals. The Minister has responsibility to deal with them in a serious and comprehensive way. This Bill is one element of that proposal. There is a need for emergency legislation to round up these individuals and to detain them indefinitely. When they come out of prison, perhaps the public will have forgotten they existed in the first place. That will have to happen and somebody will have to do that sooner or later.

There is always a catalyst. We have seen several catalysts in recent times where innocent people have been gunned down in drive-by shootings, in some cases, committed by people out on bail having been charged with serious crimes, including murder. Some people charged with murder have been released on bail and have carried out another one. Why do they not carry out a dozen of them while they are at it? They are free and cannot go wrong.

Where are we heading and how do we handle this? This Bill will not achieve everything but it will be part of the procedures which need to be put in place to at least tip the scales in favour of the law-abiding citizens.

Our society has become complacent. It is sad that each criminal act blots out of our recollection that one that preceded it. In the nature of things, each new event tends to push into the background those that came before it. I would have thought that the appalling murder of Veronica Guerin was a classic example of an event that brought our society to its senses. At that time, I had serious concerns about giving extra power to the authorities in case those powers might be abused. There is always a tendency to cut corners, if the situation demands it. The legislation establishing the Criminal Assets Bureau was initially very successful. I was pleasantly surprised when it achieved a great deal. I am not sure that it is achieving as much now as it did at the outset. I suggest that criminal elements in our society have wised up. They are able to combat much, if not all, of the work of the bureau. They are wiser than they were. They are beginning to compete with the Criminal Assets Bureau. We need to examine the matter again.

Some day, Deputies will come to this House once more to debate another horrendous crime that will seize the imagination of the people. It will be too late at that stage. We will have examined this issue and listened to various opinions on it, but we will have let it pass us by. We will have let the water run over us. We will have failed to confront the issue that has presented itself to us. The time for taking action in this area has come and gone. If we do not wake up to the threat that faces society at present, we will be negligent. The time has come for the Minister to take action. I am not criticising him personally. Everybody knows about this problem, which is a fact of life.

I would like to speak about the increased frequency of so-called "tiger" kidnappings. This insidious type of crime has been very successful for some criminals. In some cases, very little of the proceeds of such crimes has been recovered. While some retribution has been achieved, it has been limited. The lending institutions need to tighten up their security systems if they are to make it impossible for people to infiltrate them under any circumstances. One should not argue that it is impossible to prevent people from disabling alarm systems, for example, because it is possible. Having read about the operation of these security systems, I cannot understand how they can be disabled to the extent that has been done.

Many members of the Judiciary have been courageous in their attempts to frustrate organised crime. They have done that against the background of the possibility of convictions being appealed. However, they should not try to anticipate the outcome of any appeal. They should do their best in each case, given the circumstances and the evidence before them. It is entirely a matter for the next phase of the legal system - the Court of Criminal Appeal, for example - to take responsibility for determining whether the load that has been imposed on a criminal should be overturned or lightened. That is the important part of it. Judges should not anticipate what the higher court might decide, even if it is possible for them to do that on the basis of their understanding of case law. As crime gets worse and more serious and the threat to society increases, the need for us to react becomes more urgent, short and simple.

Like everybody else in this House, I could speak at great length about this issue. I compliment those crime reporters who continually try to bring the serious problem that is faced by society to the attention of the general public, the Members of this House and the Minister. I will not name any of them, because it would not be fair. Long may they continue, and be allowed to continue, to do their work. We should never allow the rights and entitlements of the law-abiding citizens of this country to be eroded by those who engage in crime, including organised crime, and those who benefit in any way from the proceeds of crime.

2:00 pm

Photo of Dermot AhernDermot Ahern (Minister, Department of Justice, Equality and Law Reform; Louth, Fianna Fail)
Link to this: Individually | In context

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.

Photo of Pat RabbittePat Rabbitte (Dublin South West, Labour)
Link to this: Individually | In context

What are the Minister's legislative priorities for the rest of the session, given the number of Bills in committee?

Photo of Dermot AhernDermot Ahern (Minister, Department of Justice, Equality and Law Reform; Louth, Fianna Fail)
Link to this: Individually | In context

They would be my priorities. I also have another Bill, the criminal procedure Bill, which arises as a result of my initiative on victims. That Bill is in its final throes and will loosen up the rule against double jeopardy as well as dealing with various matters, including victim impact statements. The data retention Bill is close to publication within the next week or so. In addition, the criminal justice (miscellaneous provisions) Bill is all but ready. Therefore, there are a significant number of Bills and I will seek the forbearance of Opposition justice spokespersons to allow these measures to pass through the House. I accept that getting such legislation through Committee Stage poses a difficulty, but we will do our level best.

We wish to have the Bill before us passed as soon as possible, as well as the criminal justice (amendment) Bill to which I referred. I suggest that these measures are the priorities, and thereafter perhaps the criminal procedure Bill.

I thank Members of the House for accepting this Bill. I am not saying it is the panacea for all ills in the country, of course it is not. We cannot deal with the problems by legislation alone; it must also be done by ordinary policing. I have heard suggestions that some gardaí may be taken away from Limerick, but that is not the case. I have clarified that matter with the Garda Síochána. The full resources of the Garda Síochána will be concentrated on those areas where they are needed most, particularly the city of Limerick. That is not to say, however, that I am being in any way complacent as regards the rest of the country. Given the fact that the number of gardaí is at an all time high, and will remain so for some considerable time, despite any moratorium on recruitment, they have the resources to fight what is an insidious element. It is an element which, in my view, is similar to the paramilitary activity that brought this country to its knees. The Oireachtas must react when we clearly see instances where people are taking on the State's criminal justice system. They are also taking on ordinary decent people who would be more than willing to come forward and give evidence, yet because of the type of intimidation that has gone on, they are not coming forward.

I thank Members for their contributions to this debate and hopefully the Bill will have a speedy passage through the House.

Question put and agreed to.