Ivana Bacik (Independent)

I support the amendment. Senator Regan has identified a real problem with the provision. As I stated, section 5(7) is very important because it is the one that authorises entry to a place, including a dwelling. To put it bluntly, it allows the State to bug people's homes. Doing so is subject to judicial authorisation in the context of sections 4 and 5. Very well-developed case law on search warrants, which is the only real parallel we have in this jurisdiction, demonstrates the courts have applied the law on search warrants to ensure minimal interference with the right of citizens to the inviolability of their dwelling in the carrying out of any search.

I declare an interest in that I am a practising criminal lawyer who has represented people who have been subjected to Garda searches. Such searches can involve large numbers of gardaí and can be extremely intimidating to people in the home, particularly if there are children present. The courts, in recognising the encroachments on people's rights and liberties that searches involve, have ensured very strong judicial supervision of the way searches are carried out.

Section 5(7) is very vaguely drafted in terms of what it allows officers of the State to do on entry to a home. One assumes that because they want to place a covert surveillance device, they will not do so when people are in the home. The procedure will be different to the application of search warrant powers in that, quite often, search warrants are used to search homes when people are present. I presume the real application of this subsection would involve gardaí entering a home when somebody is absent therefrom in order to place a device covertly and exiting without leaving any sign of their having been there. In this were not the objective, the very purpose of the provision would be undermined.

There is nothing in the subsection that guides gardaí on the entry to a premises. It does not determine how long they may stay or the interference allowed. Senator Regan's amendment is the minimum that is required. I am trying to anticipate case law that might arise in connection with circumstances where gardaí stay in a home for a certain period and where there is more than minimal interference with the home in the placing or withdrawal of surveillance devices. Is there a requirement for a code of practice? If it is not in the legislation, there should be more detail on what officers of the Garda, Defence Forces and Revenue Commissioners are authorised to do while in a premises.

Subsection (6) provides that a judge may impose conditions and that the authorisation must specify "particulars of the surveillance device that is authorised to be used" and "the conditions (if any) subject to which the authorisation is issued". At the commencement of the application of this legislation, a judge might be rather unclear as to the sorts of conditions he could impose. He would very much be guided by what the Garda says about how surveillance devices may be placed. It may be difficult for judges to have adequate levels of supervision over the placing and withdrawal of devices if they are not given clearer guidance on what they may authorise. This amendment is designed to strengthen rather than undermine the legislation.