Ivana Bacik (Independent)

I welcome the Minister of State and the opportunity to debate this important Bill, which was prompted by a change in the climate in which we view criminal justice legislation, a change that was largely a result of horrific, so-called gangland killings. Somehow, that phrase sensationalises them and is not the best that could be used, but we are all reminded of the horrific killings of Shane Geoghegan, Roy Collins and others. For this reason, the Bill has received a broad welcome, in which I share. The Bill also marks a change in the Garda's attitude. As the Minister of State mentioned, the Garda previously did not necessarily want the power to use the product of bugged conversations in court, as it would have exposed their investigatory techniques. This has been alluded to by other speakers.

It is important that, for the first time, covert surveillance will be placed within a statutory framework. I welcome section 3 in particular, since it provides that surveillance would only be carried out by gardaí, members of the Defence Forces or Revenue officers in accordance with valid authorisations or approvals. This is an important and necessary safeguard against the arbitrary use or abuse of such surveillance techniques. It is important to note the Bill does not apply just to the Garda, as it also applies to the Defence Forces and Revenue, a point to which I will revert.

The other core provision, as has been stated, is section 14, which provides for the admissibility of evidence obtained through surveillance carried out in accordance with an authorisation or approval. I should declare an interest in that I am a criminal lawyer. Speaking as such, section 14 is interesting, as it represents the first statutory attempt in a Government Bill to place in a legislative form the principles that have been developed through extensive case law on the admissibility of evidence on foot of search warrants where the warrants are in some way defective. Recently, I carried out some work on case law in this respect. I would be interested to know how the courts will interpret section 14. Inevitably, there will be some conflict with some of the case law, given the Kenny and O'Brien cases. More certainty is necessary, but the section is welcome.

My concerns about the Bill derive primarily from the case law that has evolved around search warrants. The right to privacy has been mentioned by others, including the Irish Council for Civil Liberties, ICCL. We must bear this important right in mind when considering the granting of powers to conduct surveillance. Another constitutional right will be as important or even more so in the case law that will evolve from the Bill, namely, the inviolability of the dwelling under Article 40.5. The provisions that carry the most potential for abuse of citizens' rights are those that provide for the right of members of the Garda, Defence Forces and Revenue to enter anywhere to plant and remove bugs. I am considering subsection 5(7) in particular, which allows entry by force, if necessary, to any place, including a dwelling, for the purposes of carrying out surveillance and withdrawing a device without a person's consent. There is extensive case law on when a judge - it is usually a judge - can issue a search warrant to a garda to enter a dwelling or other place. Generally, the case law provides that there must be safeguards in place to ensure that search warrants would only be granted when due process has been observed.

Legislative provisions allow senior gardaí to issue warrants. Interestingly, a provision in the Criminal Justice Act 2006 that would have extended a general power to issue search warrants to Garda superintendents was withdrawn by the Minister on Report Stage. The Act, when initiated, had allowed for a Garda superintendent to issue a search warrant in respect of any arrestable offence in circumstances of urgency. This would have been innovative because the current provisions allowing the power for senior gardaí to issue search warrants arise from specific types of offence, such as drug trafficking or offences against the State under the Offences Against the State Acts. Senior gardaí do not have a general power to issue search warrants, even in circumstances of urgency, for arrestable offences.

I am slightly concerned by the Bill. Sections 4 and 5 provide an important procedure whereby a District Court judge can issue authorisations for surveillance for up to three months. The procedures and criteria set out for the judge are proper. Of more concern are sections 7 and 8, which allow for the approval of surveillance by superior officers in the Garda, Defence Forces or Revenue in respect of any arrestable offence. Although the Bill has been prompted by concerns about gang crime, it applies to all arrestable offences. Sections 7 and 8 provide for surveillance devices to be granted, withdrawn and so on and for homes to be entered without authorisation, by District Court judges but on approval of superior officers. I understand and appreciate that, in circumstances of urgency, it may be necessary to make such a provision. Section 7 is specifically titled, "Approval for surveillance in cases of urgency". Subsection 7(2) provides criteria regarding the conditions that must apply before a superior officer, a superintendent or above in respect of the Garda, can give approval. We should focus attention in this area to ensure abuses do not occur. I will table amendments in this regard, as approvals can apply for up to 72 hours, which might be too long. Getting a District Court judge to issue an authorisation should be possible within 24 hours. I am concerned about non-judicial approval. We should also consider the matter of principal officers in Revenue being able to approve the use of such devices.

Of even more concern is section 8 on tracking devices rather than surveillance devices. It does not allow for the taking of content of conversations. Rather, it allows for entry into a home to place or remove a tracking device on the approval of a superior officer without any requirement that there be a condition of urgency. This seems like an omission and I will table an amendment to suggest the same conditions that apply in section 7 should apply in section 8 before a superior officer could approve such surveillance.

I do not mean to take away from my overall welcome of the Bill, but I wish to ensure it is water tight, which is an important issue for everyone concerned with the prevention of crime and any more horrific killings. We must ensure that safeguards are in place. Previously, people's homes were bugged illegally in the interests of so-called State security. We all want to guard against a recurrence. With these concerns in mind, I make my comments and give a cautious, broad welcome to the Bill. I urge caution in respect of some of its provisions, particular sections 7 and 8. Will the Minister of State consider them? We will have a chance to debate them on Thursday.