Ivana Bacik (Independent)

To echo Senator Regan, I take the Minister's point that tracking devices are less intrusive than surveillance devices more broadly. Entry to people's homes is authorised under section 8 to plant and withdraw tracking devices and these devices can be placed for up to four months without judicial authorisation according to this section. I take the Minister of State's point that they could be attached to packages or vehicles but they are not confined to goods in transit, where there might be a real situation of urgency. This authorises tracking devices to be placed in any location.

I am at a loss as to why it was considered necessary to have this bypass route for the placing of tracking devices. Reading the section as a practising lawyer, one can anticipate that where section 8 has been used and applied, and where a trial then ensues, the superior officer who has approved the placing of the tracking device will in practice be cross-examined extensively on the basis of the written record of approval, the time, the conditions and so on. It may be very problematic to operate in practice and I do not see why it was considered necessary to do this.

It is very easy to go before a district judge. The practice of getting peace commissioners and so on to issue search warrants became problematic and it is much easier to go to a district judge because that procedure is much more watertight. Once something like this has received judicial authorisation and consideration, it is much harder for defence lawyers to go behind it, to put it bluntly. To take section 5, the district judge hears the authorisation application ex parte and in private, and it can be any district judge and does not have to be the district judge assigned to any particular district - there was a case on this point. The procedure for seeking judicial authorisation for surveillance devices seems straightforward and I am not sure why it was considered necessary to have this bypass mechanism in section 8 for all sorts for tracking devices for up to four months, even where there are no circumstances of urgency. I have no problem with the idea of section 8 in circumstances of urgency, as section 7 provides, but I am unclear as to why it is so broadly drafted.

Another operational reason it may not be used in practice, although I am not sure this has been considered, is that the evidence of the tracking of people's location and movements is already routinely offered in criminal trials on the basis of mobile phone records which can be sought by the Garda from the mobile phone companies. We have seen very high-profile convictions on the basis of people's location at crucial times having been proved in court on the basis of mobile phone records. It begs the question of whether it is necessary to have this elaborate bypass mechanism in all the written records and ministerial regulations when there is already the alternative method of offering evidence of people's movements through tracking.