Peter Power (Limerick East, Fianna Fail)

I cannot accept the amendment. The request for the disclosure of data retained can be made only in limited circumstances relating to serious crime by a chief superintendent. They include the prevention, detection, investigation and prosecution of serious offences, the safeguarding of the security of the State and the saving of human life, as well as the prevention, detection and investigation of Revenue offences. The requirement to let the subject know of a disclosure request would severely compromise the actions of the Garda Síochána, the Permanent Defence Force and the Revenue Commissioners in dealing with serious crime and issues of State security. It would put someone, whose data was being sought in the prevention of a serious crime, on notice of that request. That is hardly the intention of the amendment.

The Senator mentioned that the defence might be that it would be impractical. It is not a matter of whether it would be impractical, it would be undesirable to introduce an amendment of this nature. The Senator is well versed in matters of criminal jurisprudence. I know of no obligation on state authorities in this or any other state to disclose evidence to an accused during a criminal investigation, irrespective of whether a prosecution flows from it.

I will cite a possible scenario for the Senator. An investigating garda might be investigating a serious crime and make a case to the chief superintendent, referred to in section 6 for a disclosure request. The chief superintendent may be satisfied with the case made to him by the investigating garda and make a disclosure request to the service provider. That information might assist in building up a case and might also implicate other people in an organisation, especially in regard to white collar crime, fraud to which I referred, and the planning of other serious offences. I presume that in such circumstances the Senator does not want the person to be tipped off that the Garda is aware of his or her activities and potentially to be able to destroy evidence.

In addition, it is unclear from the text of the amendment who would notify the person concerned. Even though this is a smaller point, it is worth making. Presumably what the Senator envisages is that the service provider would do this and not the Garda Síochána, the Permanent Defence Force or the Revenue Commissioners. An obligation on the service provider to notify the person concerned would, apart from tipping off a criminal about an existing offence or a conspiracy to commit other offences, put an unjustified burden on the service provider. Therefore, we cannot accept this amendment in substance.