Michael McDowell (Dublin South East, Progressive Democrats)

The third group consists only of amendment No. 51 which deals with closed circuit television, CCTV, systems. I brought forward a Report Stage amendment in the Dáil which provides for the installation of CCTV equipment to allow for the recording of data in two sets of circumstances.

I will briefly explain why this amendment was introduced at such a late stage. During the past year, the Secretary General of my Department and I have been concerned about the slow roll-out of CCTV and have found that the current arrangements are inadequate and ineffective. We decided a different approach must be put in place and that CCTV had to be kick-started across the country. In particular, we concluded that provision should be made for community-based CCTV systems, such as have operated in Moyross in Limerick, subject to proper safeguards.

In that context, I asked the departmental officials who were dealing with that particular project to seek the advice of the Office of the Attorney General as to whether a statutory power was required to enable me to allow persons other than gardaí, community groups in particular, to operate CCTV. It was decided that such a statutory provision was required and that it would be safer to devise a statutory power that dealt with both Garda and community CCTV.

The first category relates to the installation and use of such equipment by the Garda Síochána for its own purposes connected with the functions set out in section 7 of the Bill. It also covers a situation where the Garda may wish to use the services of outside contractors with expertise in this field under direct Garda supervision and control. Outsourcing seems to be the new buzz word in many of these areas.

The second situation that is envisaged relates to the installation and operation of community CCTV systems which are grant aided by community groups. I launched an initiative in this regard earlier this month which provides for grants for individual installations of up to €100,000, and the same again in RAPID areas, for approved installations which comply with the scheme operated by the Government. The purpose of this initiative is to provide in law for such recording to be conducted in public places with the aim of preventing, detecting and prosecuting offences.

There are areas where the local chamber of commerce might decide that it could operate such a scheme and would apply for grant aid to do so. On the other hand, there are particular areas such as Moyross where a community-based CCTV system has brought a great sense of security to a community in the knowledge that activity in particular estates is recorded. That has been very successful. What worries me about this, however, is that local vigilantes might set up such a system. This amendment provides for a prohibition on such activity unless one is authorised to set up such a scheme. I do not want do-gooding vigilantes taking over the surveillance of their own areas.

The proposals I set out in the new section are in line with our obligations under the European Convention on Human Rights, which the Attorney General has advised requires that such recording should be authorised by law. They are also in conformity with the provisions of the Data Protection Act 1988. It must be noted that although the restrictions in that Act on the processing of personal data do not apply to the Garda Síochána where the purpose of such processing is the prevention, detection and investigation of crime, the Act still applies to data controllers even when the restrictions of the Act do not apply.

The provisions of the amendment take account of this situation. In line with the Attorney General's advice, I have provided for a proper mechanism to allow the Garda to enter into contract arrangements with outside firms for the installation and operation of CCTV systems on its behalf and subject to its control. This section also provides for the installation of CCTV by community groups, subject to certain checks and balances having particular regard to privacy considerations.

In order to provide some context for the proposals, I will briefly outline the background. At present there is no legislative basis for the operation by the Garda or local communities of CCTV. The issue of evidence derived from Garda CCTV has been raised in criminal trials but the legality of Garda CCTV does not seem to have been challenged or been the subject of any adverse finding. Judgments could be regarded as implicitly supportive of CCTV such as that in the case of Mitchell v. the Director of Public Prosecutions which was reported in 2000 in Irish Law Reports Monthly. Footage from non-Garda CCTV has also featured in recent Supreme Court decisions, Bradish v. the Director of Public Prosecutions and Dunne v. the Director of Public Prosecutions.

In April this year, my Department sought advice from the Attorney General as to whether legislation is required to regulate the use of CCTV in public places by the Garda and community groups. This was in the context of the initiatives I mentioned earlier. The Attorney General advised that, subject to confirmation with the Office of the Data Protection Commissioner, the Garda Síochána and local authorities — in the case of local community groups — are data controllers for the purpose of the Data Protection Act 1988 and are therefore the subject of section 13 which allows for codes of practice to be agreed with the Data Protection Commissioner and for their elevation to the status of statutory instruments. These codes of practice will regulate working with CCTV but would not authorise CCTV themselves. The Office of the Data Protection Commissioner subsequently confirmed this position and supported the proposal to place the operation of CCTV on a statutory footing.

In addition, in order to satisfy the requirements of Article 8 of the European Convention on Human Rights that the interference with the rights of privacy of individuals recorded by CCTV is in accordance with law, it was necessary to provide in legislation for the conditions and circumstances in which CCTV might be put in place. Failure to do so would mean it could be regarded as a disproportionate and unlimited power.

As the operation of surveillance for the purposes of crime prevention, investigation and prosecution is an executive function of the State, in order for it to be carried out on the authority of the Government, legislation should provide for the delegation of the function and for an authorisation system which would enable the Garda Síochána to supervise the operation of the system and to withdraw such authorisations as necessary. In the latter regard, the aim would be to prevent those private parties, be they community groups or otherwise, who have inadequate controls in place or who breach an individual's right to privacy from continuing to record image data. The provisions in this new section give effect to this advice and have been inserted as a new section into chapter 4 of the Bill which has been re-titled, "Co-operation with Local Authorities and Security in Public Places".

Subsection (3)(c) of the new section 38, as it applies to local community-based CCTV systems, links in with the joint policing committees provided for in section 35. I could go into greater detail but the remainder of the section is self-explanatory.