John Curran (Dublin Mid West, Fianna Fail)

I am pleased to have the opportunity to open this Second Stage debate on the Criminal Justice (Surveillance) Bill 2009. This is an important Bill and one which will provide further support to the Garda Síochána, the Defence Forces and the Revenue Commissioners in their continuing drive against serious and organised crime.

The objectives of the Bill are clear-cut - to allow material gained by covert surveillance to be used as evidence in criminal proceedings, while at the same time ensuring that the intrusion into rights relating to personal privacy and privacy of property, which this necessitates, is both controlled and proportionate.

The Bill deals with these objectives essentially in two ways. It provides, for the first time, a statutory framework for secret surveillance by the bodies concerned, mainly the Garda Síochána in its role as the primary law enforcement and security agency of the State. The Defence Forces are included because of their parallel responsibilities in protecting the security of the State, mainly against the threats posed by subversives and international terrorism. The Revenue Commissioners have a vanguard role in protecting the financial interests of both the State and the European Union, and in guarding against the illegal importation of drugs and firearms. It is easy to see how the interests of these agencies may coincide, for instance, in the case of joint operations by the Garda and the Revenue in targeting money laundering and tax evasion, a key element in the fight against organised and subversive crime.

The Bill also lays out the rules which will apply in regard to the admissibility of evidence covertly obtained in court proceedings.

When the Bill was published on 17 April last, the Garda Commissioner said that surveillance is as old as policing itself. It takes many forms, the simplest of which is keeping track of a person's movements on foot or in a car, or using binoculars, a camera or CCTV in public places. However, the Bill is not about this type of surveillance that is part of ordinary policing. There is also electronic surveillance - the interception of telecommunications provided for by the Interception of Postal Packets and Telecommunications (Messages) Act 1993. The Bill does not deal with that type of surveillance either.

What the Bill seeks to regulate is the use of covert electronic surveillance devices which are specifically designed to eavesdrop, film, monitor movements and make recordings in order to gather information for the purposes of preventing and investigating serious crime and in safeguarding the security of the State.

Constitutional and European Convention on Human Rights principles must be considered before any interference with privacy rights is contemplated as covert surveillance is fundamentally an invasive and intrusive process. It is accepted, however, that there are some circumstances in which the State in the common interest may exercise special powers denied to ordinary citizens. The right to privacy is a case in point, and it may be interfered within certain circumstances once appropriate safeguards are provided for. The Bill contains several procedural safeguards aimed at achieving an appropriate balance between the competing privacy rights of the individual citizen and the interests of the wider society.

In its 1998 report entitled Privacy: Surveillance and the Interception of Communications, the Law Reform Commission provided a detailed analysis of the issue.

Both Bunreacht na hÉireann and the European Convention on Human Rights guarantee an accused person's right to a fair trial. Central to this are evidential issues such as admissibility and disclosure of evidence, and the Bill has specific provisions on the admissibility of surveillance evidence as well as rules regarding disclosure. These matters are dealt with in the Bill because, as I said at the outset, the legislation is designed to facilitate the use of information and material obtained by covert surveillance to be used in evidence. Cognisance of the pertinent human rights and constitutional principles has underpinned the drafting of the Bill.

I believe we have provided for the correct balance in the Bill as between the competing interests of privacy and due process on the one hand and the protection of persons, the prevention of crime and the security elements on the other. I am pleased to note the Bill has received a general welcome, not just from all sides in the Houses but from the various non-governmental organisations which have a particular interest in this area. Observations made by the Irish Human Rights Commission have been considered and, where appropriate, have been incorporated into the Bill in the course of its passage through the Dáil. The Bill before this House contains additional safeguards for the subjects of surveillance.

Until now, the Garda has been reluctant to use evidence obtained by covert surveillance in court, mainly for legal and operational reasons. That policy has now changed. In the opinion of the Garda Commissioner, the changing nature of crime, in particular the growth of organised and gangland crime, requires a buttressing of the security response. In addition, the threats to society and to the integrity and effectiveness of the criminal justice system itself posed by these gangs, notably the attacks on ordinary people going about their daily lives, requires correspondingly robust legal measures.

The use of hi-tech surveillance devices can provide real time intelligence on the plans and actions of criminals, subversives, terrorists and other sources, which allows the relevant agencies to disrupt their plans and thwart their actions. It can identify the perpetrators and facilitate their arrest. It can reveal the existence of new sources from which a better understanding of the threat posed by criminals and others can be gauged and from which preventive strategies can be developed. It is a technique employed in law enforcement and security in many jurisdictions.

Regarding the investigation of crime, the use of covert surveillance after a crime has been committed can result in the arrest of the perpetrators. It can also assist with the recovery of the proceeds of crime and with the disentanglement of related money laundering operations. Crucially, surveillance can prevent loss of life.

I will set out more fully the provisions of the Bill. Section 1 deals with definitions, a number of which are worthwhile expanding on. In defining member of the Defence Forces and member of the Garda Síochána for the purposes of surveillance under the Bill, it is important to note that any powers of surveillance granted to the Garda or to the Defence Forces are not granted to reserve members.

Revenue offences are defined for the purpose of the Bill as arrestable offences under specific legislation which primarily deals with tax fraud and smuggling. Surveillance powers of the Revenue Commissioners under the Bill are restricted to these offences.

The Bill defines surveillance as monitoring, observing, listening to or making recordings of persons, places or things by or with the assistance of surveillance devices. As such, it does not include situations where persons are followed or observed without the use of surveillance devices. Surveillance devices are defined in the Bill as apparatus designed or adapted for use in surveillance. Certain devices are specifically excluded such as devices designed to improve night vision where the image is not being recorded; and CCTV and cameras used to photograph persons in places to which the public has access.

Sections 2 and 3 provide that the Bill applies to surveillance carried out by the Garda Síochána, the Defence Forces and the Revenue Commissioners and that any such surveillance may only be carried out in accordance with the Act. For clarity, the Bill sets out certain activities that are excluded from the provisions of the application of the Act such as any activity that would constitute an interception within the meaning of the interception Act of 1993, tape recording of interviews with suspects in accordance with the provisions of the Criminal Justice Act 1984 or the use of CCTV in Garda stations.

Section 4 deals with applications for authorisations to conduct surveillance. It provides criteria which must be satisfied before an application can be made.

In the case of the Garda Síochána, surveillance can be sought as part of an operation concerning an arrestable offence, to prevent an arrestable offence and in regard to the security of the State.

The Defence Forces may apply for an authorisation in regard to matters concerning the security of the State. The Revenue Commissioners may apply in regard to revenue offences. In all cases there must be reasonable grounds for believing that the surveillance is necessary for the purposes intended and that the surveillance being sought is proportionate to the objectives and is reasonable.

Section 5 deals with the issuing of authorisations for surveillance by a District Court judge, applications for which shall be made ex parte and shall be heard in private. The application can be made to a judge assigned to any District Court district and the authorisation will have effect in any part of the State. Before a judge issues an authorisation, he or she must be satisfied that it is justified to do so having regard to all of the relevant circumstances. An authorisation may be issued for a maximum of up to three months. The judge, when issuing an authorisation, may authorise the person named in it or other members or other persons considered necessary to enter property, if necessary by reasonable force, to initiate or carry out such surveillance.

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

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

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

Section 9 provides for the retention, for a specified period, of all official documents relating to authorisations and approvals. The period in question is either three years from the end of the surveillance or the day after the information is no longer required for any prosecution or appeal for which they are relevant. The section further provides that the material will be destroyed, as soon as is practicable, once it is no longer required except in cases where the relevant Minister gives written authorisation for the retention of information and documents, having regard to certain matters.

Section 10 deals with the secure storage of and authorised access to information and documents generated as a result of the carrying out of surveillance with the intention of protecting people's privacy and other rights. The section also allows the Minister for Justice, Equality and Law Reform to make regulations in respect of the disclosure or non-disclosure to the subject of surveillance or to persons who are materially affected by it. Disclosure will, however, only occur in certain specified circumstances.

Section 11 provides for a complaints procedure where a person believes he or she may be the subject of surveillance or where a superior officer involved in the authorisation or approval process applies to the complaints referee. Where the referee finds that there has been a contravention of sections 4 to 8, he or she has the power to direct the quashing of an authorisation, the destruction of any information obtained and to recommend payment of compensation up to €5,000. However, if the referee believes it is not in the public interest to do so, he or she may decline to make such directions or recommendations. The referee may also undertake an investigation of a case on his own initiative and must investigate a case referred to him or her by the designated judge who has oversight of the operation of the legislation. The matter may also be referred by the referee to the Garda Síochána Ombudsman Commission, the Minister for Defence or the Minister for Finance, depending on the particular State agency concerned. The complaints referee may also refer a matter to the designated High Court judge who has oversight of the Act.

Section 12 provides for the appointment of a judge of the High Court to oversee the operation of the main provisions of the Bill and to make regular reports to the Taoiseach on any matter. Such reports will be laid before both Houses of the Oireachtas. The designated judge may also refer a matter to the complaints referee for investigation.

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

Section 14 is a core provision of the Bill. It deals with the issue of admissibility of evidence in the narrow and very specific context of evidence obtained by means of surveillance. It provides that such evidence, notwithstanding any error or omission on the face of an authorisation or a written record of approval or notwithstanding any failure by any member or officer to comply with a requirement of an authorisation or written record, may be admitted in evidence in certain clearly defined circumstances where the error or omission was inadvertent or where the member or officer acted in good faith and the failure was inadvertent and the interests of justice would be served by the admission of such evidence. The court, when deciding on the admissibility of such evidence, will have regard in particular to matters set out in the section, whether the error or omission or failure was serious or merely technical in nature, the nature of any right infringed, any circumstances of urgency and the possible prejudicial effects of the information and the probative or conclusive value of same. In effect, this means that a breach of statute-based procedures or a failure to fulfil particular statutory requirements will not, of themselves, mean that the material in question must be excluded.

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

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

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

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

I consider this Bill to be a significant milestone in the process of bringing those involved in serious criminal, subversive or terrorist activity to justice. It is evidence of the Government's ongoing commitment to the fight against crime and to the safety of its citizens. It builds on measures already introduced by the Criminal Justice Acts of 2006 and 2007 in dealing with the prosecution of gangland crime.

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

The opportunity to introduce additional safeguards was taken during the passage of the Bill through Dáil Éireann. A number of these provisions reflect proposals put forward by the Irish Human Rights Commission in its observations on the Bill.

Technological developments in this area continue to evolve so quickly that the potential intrusiveness into our personal lives requires that the type of surveillance dealt with by this Bill may only be resorted to in a proportionate way, accompanied by proper and effective legal safeguards. I believe the Members of this House will agree that the Bill before them meets these requirements. I commend the Bill to the House.