Ivana Bacik (Independent)

Sections 4 and 5 provide for judicial authorisation for surveillance which we have all welcomed with the statutory framework and the criteria and so on, albeit that some of us on this side of the House think the criteria could be tighter and judges given more guidance on granting authorisations. My concerns, however, are strongest in respect of sections 7 and 8 because these provide for surveillance and tracking devices to be placed without judicial authorisation but instead by the superior officers of the Garda, Defence Forces or the Revenue Commissioners. Section 7 at least provides that this can be done only in urgent cases and section 7(2) provides three criteria for urgency which is important. It is also important to note there is a time limit of 72 hours from the time when approval is granted under subsection (8). There is a distinction between this sort of approval for surveillance and the sort of authorisation a judge can grant under sections 4 and 5.

I did not table an amendment on subsection (2) but I do have a slight concern about it. The first two criteria of urgency are straightforward and we are familiar with them from the bail laws, that a person might abscond for the purpose of avoiding justice or would commit an arrestable offence or where information is likely to be destroyed. Those are very clear and logical cases for urgency. I have some concern, however, about the broadness of the third condition under subsection (2)(c) where "the security of the State would be likely to be compromised", particularly because this applies also to officers of the Revenue Commissioners even though under section 4(3) State security is excluded as a ground on which a Revenue officer can apply for authorisation. That seems to be beyond the function of Revenue officers. It would be highly unlikely in practice that a senior Revenue officer would be issuing authorisation in a case of urgency under section 7 because he or she felt the security of the State was likely to be compromised. Is it an oversight that subsection (2) gives them this power?

Amendment No. 5 is designed to create another level of safeguard and to insert a new clause into subsection (8). It is important the time period is shorter where a judicial authorisation is granted. I am concerned that "place" here includes dwelling place and I do not see why 72 hours is needed where a dwelling place is concerned. I have proposed an amendment to the effect that where the surveillance is to be carried out at or in a private dwelling, it shall not be carried out for more than 24 hours from the time when the approval is granted. My rationale is that it would always be possible in practice to get a judge within 24 hours. I can accept there are circumstances in which a superior officer or a superintendent might have to grant the authorisation urgently in respect of private homes. I am not saying they cannot do it but that a more confined time limit should apply where the surveillance is to be carried out in a private home.

Section 7 allows superior officers to authorise the entry into private homes for the placing of covert devices and for continuing covert surveillance for 72 hours which is quite a long time in people's private lives and homes. My amendments Nos. 6 and 7 give effect to that. I apologise for the typographical error there because the phrase should read "or as the case may be 24 hours". That is to give effect to amendment No. 5 and provide for it in subsection (10). I would be grateful for the Minister of State's considered view of the proposal to have some more confined provision in section 7 where the private dwelling is concerned.

Several other safeguards are absent. There is no provision, for example, in section 7 that the member of the Garda, Defence Forces or Revenue Commissioners would be independent of the investigation. There is case law on this in other jurisdictions. There should be a concern that a Garda superintendent who is leading an investigation would also be the person who authorises the surveillance and the placing of the device and entry into the person's home. In the absence of that safeguard and the provision to enter private homes and place surveillance there, we should be wary of allowing non-judicial authorisation for any longer than is absolutely necessary and I am not sure it is absolutely necessary for 72 hours. I am not wedded to the 24-hour limit. I put it in because I think from experience it might take 24 hours to get a District Court judge but a judge should always be available. Some period shorter than 72 hours would be an important principle to reflect the constitutional significance attached to the dwelling in our legislation.