John Curran (Dublin Mid West, Fianna Fail)

I thank the many Senators who contributed to the debate on the Bill. Many important points were made and I will deal with many of them, if not all. I am sure several of these points will be raised again and debated in detail on Committee Stage and Report Stage.

I thank Senators for generally supporting the Bill. It is important legislation which will be very useful to the Garda Síochána, although it must not be viewed as the only answer and must be taken in the context of and in conjunction with other strong legislation that is being published and to which I will refer.

At the outset, Senator Regan referred to the right to privacy in the context of the Bill, as did a number of other Senators. The right to privacy is not an absolute right. It may be affected by other interests, so while the European Court of Human Rights has held that secret surveillance amounts to a serious interference with privacy, it has indicated that such interference is permissible once it is proportionate and strictly necessary in a democratic society. This may be for the protection of national security, public safety or the economic well-being of a country; for the prevention of crime or disorder; and for the protection of health or morals, or the rights and freedoms of others.

A key consideration is that any measure must be prescribed by and in accordance with the law. This is where the Bill comes in. As Senators may have noticed, the Bill is quite detailed and strives to achieve a balance between the competing rights in this sensitive area. It provides the necessary safeguards in that respect, first by prescribing what is permissible by law and second by clarifying the position as to the admissibility of material obtained on foot of surveillance and the rules governing the disclosure of information connected with surveillance.

Senator Regan and other Senators commented on the Garda Síochána. I point out that the Garda Commissioner has indicated that the time is right to be in a position to use this type of evidence in courts. Sometimes the material which becomes available as a result of secret surveillance is so valuable and compelling that gardaí believe its use in evidence would be persuasive and significant. This may be to strengthen a case or it may be that the material on its own may support conspiracy charges. The Garda Commissioner has also indicated that additional resources are not required. The Bill effectively gives statutory effect to current operational practice.

With regard to provisions in regard to the designated High Court judge, this provision is similar to the oversight provision in the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993 and is included on the basis that the oversight provision of that Act has worked well since 1993.

I refer to points raised concerning the Garda Síochána Ombudsman Commission and its role under the Act. The decision taken at the time of the enactment of the Garda Síochána Act 2005 was that it would be preferable to wait until the ombudsman had gained more operational experience before considering the application to it of interception powers. That position also applies to surveillance powers under the Criminal Justice (Surveillance) Bill now. Accordingly, this is why section 17 has been included. It amends section 98(5) of the Garda Síochána Act 2005 such that the provisions of the Criminal Justice (Surveillance) Bill do not apply to the ombudsman. The ombudsman has a role under the legislation in that section 11 allows the complaints referee to refer a matter to the ombudsman where he or she believes there has been a contravention of the Act by the Garda Síochána.

I refer to Senator Bacik's comments on the authorisation of entry into places to initiate surveillance. Sections 7(5) and 8(5) provide that authorisation or approval to carry out surveillance may be authorised by a superior officer in the relevant agency. An officer accompanied by any other person considered necessary may, if necessary, enter by reasonable force any place for the purpose of initiating or carrying out surveillance. Such an authorisation or approval may be subject to whatever conditions the issuing judge or superior officer considers necessary. An authorisation or approval will only be issued where the judge or superior officer is satisfied surveillance is necessary for obtaining evidence or information related to the commission of an arrestable offence, preventing the commission of an arrestable offence, to maintain the security of the State and when the surveillance sought is the least intrusive means available proportionate to its objective and of reasonable duration.

Senator Bacik referred to the emergency approval of 72 hours' surveillance. This applies only in cases of exceptional urgency, for a limited period of up to 72 hours and is not renewable. The Bill provides for such surveillance to take place under the sanction of senior officers: a superintendent in the case of the Garda, overseen by an assistant commissioner, or officers of comparable rank in other agencies. Approval is confined to cases in which there is a risk that a suspect may abscond, the surveillance is necessary to prevent a serious crime or there is information evidence may be destroyed or lost. Surveillance beyond this period requires judicial authorisation.

I refer to Senator Bacik's comments on tracking devices, the use of which is regarded as a less intrusive means of surveillance than the use of other devices. For the purposes of the Bill, tracking devices are defined as those which provide information regarding the location of a person, vehicle or thing. In providing for a system of approvals rather than authorisations, the Bill seeks to achieve a balance between the necessity for fast action in the placing of tracking devices and the provision of an effective regulatory framework for their use. As a counterbalance, the Bill provides a stringent system of control for the use of tracking devices which includes rules on record keeping and reporting where such an approval is granted.

I refer to the comments on John O'Brien's newspaper article. The author considers the Bill solely from an operational point of view, but we must also consider the Constitution and the European Convention on Human Rights, ECHR. This is why the safeguards such as the judicial District Court authorisation process are essential. We have also taken on board some of the concerns of the Irish Human Rights Commission which were included during the Bill's passage through the Dáil. I refer to Senator Hannigan's point on retention of records. The measures are in keeping with the emerging ECHR jurisprudence. Section 9 allows for relevant Ministers to retain documents beyond the specified period, which relates to the point made by the Senator. There is provision to go beyond that specified period.

I refer to Senator Walsh's comments on offences covered by the Act. It is not intended that the surveillance covered in the legislation would be used widely, only in certain specific circumstances in response to a threat posed to citizens by criminal elements. It is also subject to stringent safeguards. Senator Norris referred to people materially affected by surveillance such as a third party who is overheard. Such people are covered by the complaints procedures.

Most of the comments of Senator Harris did not relate to the legislation. However, they were provocative and thought-provoking and merit a wider debate in their own right. One comment was whether the legislation would be an effective tool in the fight against crime. The Bill will help to ensure more prosecutions and to secure convictions in cases which might not otherwise have progressed to court. The Garda Commissioner believes the potential of the Bill to fight against gangland crime, such as the tragic events which occurred in Limerick recently, is very significant.

At the outset I remarked that we should not simply view the legislation on its own. In the coming days the House will be asked to consider additional measures to tackle organised criminal gangs. In the light of the situation we face with ongoing intimidation of witnesses and jurors, the Criminal Justice (Amendment) Bill 2009 provides that the powers available to combat subversive organisations may be applied to criminal gangs. This would mean crimes involving criminal gangs could be scheduled offences for the purposes of the Offences against the State Act such that those involved could be tried in the Special Criminal Court unless the Director of Public Prosecutions states otherwise. The Bill provides for the new offence of directing the activities of a criminal organisation which carries a maximum penalty of life imprisonment. Provision is also made for organised crime offences with penalties upon conviction of up to 15 years, including intimidation of witnesses and jurors. The Criminal Justice (Amendment) Bill 2009 complements, to a large extent, the provisions of this Bill.

Senators have welcomed this legislation which is part of a wider package of legislative measures. To deal with gangland crime, more legislation is necessary. However, this is very specific legislation to give effect to the operational procedures followed by the Garda at present. I am pleased Senators have recognised the necessity of the legislation, I thank them for their constructive input and look forward to returning to the House in the coming days to proceed with Committee and Report Stages.