Tuesday, 11 June 2013
Criminal Justice Bill 2013: Committee and Remaining Stages
Section 4 provides for amendments to the definition of "occasional transaction", which is contained in section 24 of the Act of 2010. The definition provides that an occasional transaction in relation to a customer of a designated person means a single transaction or series of transactions that are or appear to be linked to each other where the total amount reaches €15,000. This will ensure obligations in the Act such as customer due diligence apply once this threshold is reached. Section 4 also provides for the lowering of this threshold in private members gaming clubs where the value concerned in a transaction reaches €2,000 and for the wire transfer of funds when an amount of €1,000 is reached.
Similar to my colleague, could the Minister outline more specifically the thinking behind section 9 and the amendment to the 2010 Act? I refer in particular to the idea that the designated person knows or has reasonable grounds to believe that a customer is residing in a place outside of the State or is or has become a politically exposed person or an immediate family member or close associate? It is a very broadly drafted measure and perhaps the Minister could provide some more explanation. As someone who has practised as a solicitor, I think it is incredibly broadly drafted.
Section 9 substitutes section 37(4) of the Act of 2010, which is part of Chapter 3 of Part 4 of the Act, and deals with customer due diligence, CDD. Section 37 sets out the enhanced CDD measures to be taken by a designated person in relation to customers who are politically exposed persons, PEPs. For the purposes of the Act, a politically exposed person is a person residing outside the State who has been entrusted with a prominent public function at any time in the preceding 12 months. Section 37(10) lists the type of individuals to which this might apply, including a Head of State, Head of Government, Government Minister, Member of Parliament, member of the Supreme Court or of a high level judicial body and others.
It does not apply to a middle ranking or more junior official. Section 37 also provides that such enhanced CDD obligations must be applied to an immediate family member or a close associate, with both defined in section 37(10). The enhanced CDD measures which a designated person must apply to a PEP are obtaining approval from senior management for the business relationship and determining the source of wealth and funds for the transaction. This is crucial to ensure protection against money laundering.
Section 9 amends section 37(4) to provide that the enhanced customer due diligence measures must also be applied to an existing customer who subsequently becomes a politically exposed person. It also provides that enhanced ongoing monitoring must be applied to a business relationship with a person who is a PEP. There can obviously be a situation where an account exists for an individual who does not appear to be a prominent individual but who suddenly then stands for election and becomes a Minister. It also provides that enhanced ongoing monitoring must be applied to a business relationship with a person who is a PEP. These are requirements sought by FATF under FATF recommendation no. 6.
An amendment was made on Committee Stage in the Dáil to section 37(6), which previously provided that where the beneficial owner who is a PEP is connected with a customer or service, the enhanced CDD measures in subsection (4) must be applied. The amendment applies the same approach to this subsection as is now contained in subsection (4), that is, so the enhanced CDD measures must apply where such beneficial owner subsequently becomes a PEP.
Under this section, dealing with enhanced due diligence, there is a reference to the designated person applying additional measures to those specified in the chapter. What does that mean? Is there a definition of "additional measures" or is this an open-ended suite of options? It simply states that the designated person shall apply additional measures. What are those additional measures?
Section 10 amends section 39 of the 2010 Act. It deals with the application of additional customer due diligence measures, the enhanced CDD the Senator mentioned, to a customer or beneficial owner where there is a high risk of money laundering or terrorist financing. The current legislative provisions provide for the option of applying enhanced CDD by the designated person. The amendment provides that enhanced CDD must be applied by the designated person where they have reasonable grounds to believe there is a heightened risk of money laundering or terrorist financing. That means where there are reasonable grounds to believe someone is laundering money or is engaged in terrorist financing, further checks are undertaken that are appropriate to the circumstances to ensure as best as it can be ensured that illegal activities are not being engaged in. What those are may vary depending on the background, circumstances and nature of the transaction. It may well include seeking information or asking the customer for information that may not be readily accessible to the bank and seeking its verification. It is reasonably straightforward. This is very important legislation designed to prevent money laundering and to ensure money is not being made available for terrorist financing that could result in the death or destruction of an individual or individuals.
I fully appreciate the bona fides behind the legislation. In a completely separate field, many people are experiencing difficulties when dealing with banks, some of them under the insolvency regime the Minister has championed.
In my dealings with people who come to me for assistance I have learned that banks have been taking unwarranted liberties, so to speak, in their dealings with individuals in this recession. While I take the point made by Senator Bradford, my concern is that we should avoid giving additional powers to institutions in the absence of full confidence that they will not misuse these powers for purposes that go beyond the outcome we seek to achieve in the legislation. I do not necessarily expect the Minister to respond.
I will respond briefly to the Senator because the issue of banks not always dealing appropriately with individuals who are burdened with debt or are seeking to borrow funds in circumstances where there is either reasonable security for the funds or reasonable capacity to pay has absolutely nothing to do with this legislation. All we are doing between the original section 29 of the 2010 Act and section 10 of this Bill is turning what was an optional discretionary exercise into an obligatory exercise. Under the previous section, the legislation provided for the option of applying enhanced customer due diligence in certain circumstances. As it was optional, if it was not applied, one would not necessarily be open to criticism, even though one was supposed to approach the matter in a particular way. This amendment provides an obligation where there are reasonable grounds to believe there is a heightened risk of money laundering or terrorist financing. This means that if one does not exercise that obligation and it transpires that moneys were used for terrorist financing or money laundering took place and any reasonable assessment of the circumstances would have given rise to such a suspicion, a criminal offence will have been committed. The amendment tightens up our criminal law provisions, as recommended internationally, to ensure people engaged in serious illegality can be identified and the State cannot be used for the transmission of funds that are being laundered or may be used for terrorist purposes.
This section provides for miscellaneous amendments to the 2010 Act which are consequential on those contained in section 15. Section 15 provides for subsidiaries of a credit or financial institution operating as a trust or company service provider to be authorised and monitored by the Central Bank, rather than the Minister for Justice and Equality. For this reason, the reasons cited cease to be the Minister's reasons and the reference to the "Minister" needs to be excised from this section.
We had an interesting debate on Second Stage with the Minister of State, Deputy Kathleen Lynch, on the conditions justifying authorisation for the blocking - to use layman's language - of mobile telephone signals. We all appreciate the reason the legislation is required and we accept that a certain degree applies in respect of this provision. Modern terrorism and criminal activity are much different from the activities we dealt with in the past. We must, therefore, have in place whatever measures the security forces require to protect citizens of the State.
The Minister did not have an opportunity to address us on the matter. Perhaps he had an opportunity to address the Dáil. I ask the Minister to give us his thoughts on section 20, dealing with the conditions justifying the authorisation of mobile telephone signal cessation and the broad thrust of the legislation in that regard. The legislation is obviously required and is before us because the Minister, his officials and the security forces of the State believe it is needed. However, I ask him to give him an overview of his thinking on this section, which is at the core of the Bill.
Cuirim fáilte roimh an Aire. On this issue, there was speculation around the Houses that this legislation was being introduced in haste because of the upcoming G8 summit in Fermanagh. I asked this question of the Minister of State previously but we did not get time to address it - is there any intelligence available to the Minister that there is a clear and present danger, as the Hollywood film would have it? Was this legislation brought forward because of the G8 summit in Fermanagh? Was there a specific reason for bringing it forward, in the context of the G8 summit or any impending terrorist attacks of which we should be aware? Is the Minister confident about security for the summit and does he envisage having to use the powers in this legislation over the weekend to block mobile telephone transmissions?
Section 20 is necessary, for all of the reasons outlined by Senator Bradford. However, I would suggest to the Minister that he could perhaps go a little further. Anybody, irrespective of age, background or terrorist involvement, can walk into a mobile telephone shop and buy a dozen SIM cards for €100 or two dozen for €200. That individual can then use the technology to cause trouble, whether that be by making prank calls or operating prostitution rings. Indeed, in the latter context, the justice committee discovered recently that mobile telephone technology has revolutionised the prostitution industry, as has the Internet. I was on holidays in Spain on one occasion and wanted to buy a local phone. I went into a mobile telephone shop but in order to get a SIM card, I had to hand over my passport, which was photocopied and kept on file. I asked if this was standard practice for Spanish people as well as visitors and was told that no SIM card can be purchased in Spain without the production of identification, which is then kept on file. There is a lot to be said for having a three or four month period during which people must register their mobile telephone number or numbers with their provider, with some form of formal identification. This could be done online or in mobile telephone shops. After that period, unregistered phone numbers should be blocked and should remain so until they are registered.
The use of mobile telephones in the last decade in particular has revolutionised society, 99% of time for the better, although in politics we could sometimes do without our phones. However, there is a nasty element that uses mobile telephone technology for the wrong reasons. That could be resolved quite simply, in my view and I urge the Minister to consider my suggestion.
There was an issue raised on Second Stage regarding the blocking of mobile telephone signals. If I am not mistaken it was Senator Moloney who asked what would happen in a situation where there was a need to the block mobile telephone signal in an area and some unfortunate event occurred, like at an international summit, for example, where members of the public were injured. In that context, is there a facility whereby there is an emergency band operated by ambulance services, members of An Garda Síochána and so forth? Is there a specific band they could use that would not be impacted by the general blocking of mobile telephone signals?
I agree with my colleague that it is an issue that people can access handsets and SIM cards with little difficulty in this country. My daughter bought one the other day and she was not asked for any identification whatsoever.
I thank the Senator for raising these issues. Part 3 is an important new provision in our legislation, which should have been put in place years ago. It is important that it be put in place because it is essentially about saving lives. Section 19 defines a serious threat as an imminent threat that an explosive or other lethal device will be activated by use of a mobile communications service provided in the State by an undertaking and the activation of that explosive or lethal device is likely to cause the death of a person, serious bodily injury to a person or substantial damage to property. The remote detonation of explosive devices can do one or all three of those things. Unfortunately and tragically on this island, we are not strangers to the lethal impact of such devices. Too many people have died as a result of them. Modern technology allows those devices to be left in a location and then detonated by an individual some distance from the event.
Despite the Good Friday Agreement, we still have on this island a group of criminal terrorists who are quite willing to take the lives of others without any conscious feelings of guilt. We have had in Northern Ireland a number of tragic deaths and I have had to attend a number of funerals there. Explosive devices have regularly been identified in the North over the past two to three years at various locations. These have been neutralised and lives have been saved. I am speaking from memory but I think I am right in recalling that in this State in 2012 there were 98 occasions on which the expertise of the Defence Forces was sought to deal with and identify explosive devices or devices that appeared to be explosive devices and to do what was necessary to neutralise them. On each occasion, the Defence Forces were called in by An Garda Síochána.
In the context of the security of this island, North and South, it is important that these powers exist. They exist in Northern Ireland but our legislation has a gap in this regard. In the context of our legislation, there was a fear grounded on solid background intelligence and information that an explosive divide could in some part of the country be remotely detonated and we were dependent on the voluntary co-operation of telecommunications companies, if needed, to shut down a mobile communications system. That was not good enough. With or without the G8 summit, this legislation was under preparation. I was concerned that we should have it but that we should get it right, that it should be proportionate and that balanced protections should exist to ensure mobile telephones could not be arbitrarily shut down would be put in place. We managed to complete substantial work on this with the assistance of the Attorney General's office shortly after a money laundering Bill was published and we saw this as a useful vehicle to turn into a criminal justice Bill in which we could incorporate these measures.
I have been asked if there is any connection between this legislation and the G8 summit. During the G8 summit, which is taking place in Northern Ireland, a number of important world leaders will come to the island of Ireland, many of whom will stay in Northern Ireland and others of whom will stay in the Republic of Ireland. The Garda Síochána and Police Service of Northern Ireland, PSNI, are working jointly to ensure adequate security on the island during the course of the summit.
Who is to know whether some group of terrorists, home-grown or imported or a domestic representative of some foreign terrorist organisation, will see the summit as an opportunity for a "spectacular", to use the IRA phrase? Who is to know? I have no reason to believe it will happen but I believe in the precautionary approach. I believe our legislation should be as good as it can be to ensure we provide the maximum protection for everyone living on this island and everyone who visits it, be they visiting as political Heads of State, spouses of political Heads of State, a topic about which many have become excited during recent days, or those who accompany them in the performance of their public duty for their countries.
In the context of having the legislation prepared, it makes sense that we enact it speedily. Of course, if an issue arises surrounding the G8 summit - I must again emphasise that I have no reason to believe an issue will arise - and this legislation has to be used to protect lives, it will be so used, but within the confines of the prescriptions detailed in the legislation for the powers to be invoked. Section 20 lists the important conditions in this regard, including that there be reasonable grounds for believing that a serious threat exists. I have outlined the definition of "serious threat". A second condition is that there is a reasonable prospect that the cessation of a mobile communications service within a geographical area would be of material assistance in averting that threat. If there is serious information to indicate there is such a threat, we will ensure the threat is closed off. A third condition is that, having regard to all the circumstances, including the importance of maintaining the availability of the mobile communications service in the geographical area concerned, including the effect of a cessation on users, the giving of an authorisation is necessary and proportionate in its objectives.
Those are the conditions. They are carefully crafted. Taken together with the definition of "serious threat", they are designed to ensure this is not a power that would be used in circumstances in which it would be a nonsense to do so. However, it is a power available to us and one which can be applied to a discrete and distinct geographical area, which could be part of rather than a whole country, but could also be applied to the geographical area of the Republic of Ireland in circumstances in which there was clear and solid information that there would be a series of terrorists bombings in parts of this country. If it were known that these could or would be detonated remotely by mobile phones, who would complain if we shut down the communications system and prevented those intent on violence from achieving their objective of killing and maiming individuals? Who would object to that? There is no rational reason any person would do so. That is what this is about. It is a serious and important reform.
We must ensure our criminal law is up to date with modern technology. In the context of my role as Minister for Defence, this includes assessment of the threats that our civilian population, the Garda Síochána or members of the Defence Forces may be under and assessments of what we can do to diminish those threats, protect lives and ensure people intent on murder and mayhem, or with general terrorist objectives, do not achieve those objectives or do not use this State as an easy target to benefit some foreign cause in circumstances where a foreign Head of State is visiting Ireland and there is a perception that because our laws are in some way defective, it is easier to engage in a murderous act on this island than it might be elsewhere.
In the UK, including Northern Ireland, the possibility of doing this already exists. All of us watched with horror as the events in Boston unfolded on our television screens - recorded if they were not seen live - when two explosive devices wrought terror on the streets of Boston at the end of the Boston marathon and innocent people lost their lives or had their lives destroyed. It is reliably understood that, out of fear other devices might be exploded in Boston, authorities used the powers granted under legislation in Boston that we do not yet have. That is the reason why we are doing this. It is in the public interest and in the interest of public safety to ensure those who are intent on violence and terrorism are not given a free pass and are well aware of what steps may be taken to prevent them from achieving their objectives.
On the other question I was asked, it is my understanding that it is technologically possible to close down generally a mobile telephone system while leaving a band open for emergency calls, where appropriate. I am not going to pretend to be an expert on all the technologies of mobile communications systems. There may be circumstances in which they must be closed down in their totality, including emergency services, but it is my understanding from the advice I have been given that it is possible to have a general close-down while maintaining emergency services in certain circumstances. Based on the fact that people are technologically very bright, who knows whether some terrorist group is aware of the fact that if one closes a system generally but leaves open the emergency services, there is a means of exploiting that radio signal in order to achieve death and destruction?
This is a precautionary measure and I hope and expect the G8 summit will be an historic event on this island. I am proud of the fact that the Taoiseach will be attending it, not only as Head of the Government but also to represent the Presidency of the European Union. I hope the summit goes well, has a productive agenda and achieves its objective constructively, and that people come here in peace and leave in peace in the absence of incidents of any description. Regardless of the G8 summit, this is a crucial precautionary measure for the safety of the citizens and residents of and visitors to this State. We must provide them the maximum protection against terrorist acts.
I will come back to that. It is a very interesting suggestion and I will certainly follow it up. I am conscious that people can, with great simplicity, acquire mobile telephones. Some of our regular criminals have managed to do this and then dispose of them in the context of certain types of telephones. I am happy to hear any ideas which might render it easier to identify who is using mobile telephones in circumstances - I emphasise this - of serious criminality. I do not think we should be generally listening to people's mobile calls nor should we randomly monitor telephones across the State in any shape or form. We have legislation which makes it appropriate in very limited circumstances for intelligence to be acquired through the use of telephones and it is important that we be able to identify the owners of telephones in those circumstances.
I am not suggesting that we should ever put in place in this State the type of surveillance system which, as is now apparent, exists in the United States.
It is a good suggestion. I congratulate the Minister because, as he stated, it is time to move with the technology. It is good that he is now doing so, although we are probably still somewhat behind the technology. The geographic area to which reference is made covers all or part of the State. That is fine when something such as a G8 summit is taking place because every box will have to be ticked, the various leaders will have to be protected, the PSNI will be obliged to co-operate with the Garda, etc.
I am concerned, however, with what will be the position in the normal course, particularly in view of the fact that mobile technology can be used across borders. There is a mast just three miles north of the Border which cannot be closed down and which transmits signals into the South. Is there an agreement in place in respect of policing the various threats that exist, particularly in the context of tracing criminals who flee across the Border when they have committed crimes in either the North or the South? Is what will happen in such circumstances set down anywhere? There is always plenty of time to prepare for G8 summits or similar events but emergencies can arise very quickly and we must ensure there is co-operation between the PSNI and the Garda in the context of closing particular areas north and south of the Border as the need arises. Recent events have shown how criminals can escape from the South to the North and vice versa.
I welcome the fact that what is proposed in the section is going to become law. I live near the Border and I am conscious of the terrorist threat which exists there. The Bill clearly indicates the different matters about which the Minister must be satisfied before granting an order as a result of an application from the assistant commissioner. In circumstances where the Minister for Justice and Equality is not contactable, can another Minister give a direction or an authorisation in his place? I refer here to the need for such directions or authorisations to be given in emergency situations where action must be taken almost immediately. I understand the Minister for Justice and Equality can issue a direction or an authorisation orally. However, if he cannot be contacted, who may provide such a direction or authorisation?
The Minister referred to new technology. In recent days we have heard a little about the PRISM data collection system which is apparently being used by the CIA to collect information, etc. In the context of the Bill and from where the information available to the Minister will come, I imagine that quite a number of foreign intelligence agencies are co-operating with the Irish intelligence agency and its counterpart in the North regarding the G8 summit. What is the level of engagement in this regard? If the CIA, for example, gave the Minister a tip-off about an impending bomb attack or whatever, how certain could we be with regard to its reliability? How will the information that will be made available to the Minister be handled? Will the Defence Forces, the Garda or some other entity have responsibility in this regard?
In the context of PRISM, we have been informed that the CIA is mining e-mails and other electronic data held on the servers or server farms owned by the large communications companies. I understand that, for example, Google has a number of the such server farms on the island of Ireland. Do the events about which we have been hearing in recent days happen with the knowledge of the Irish State and the Minister for Justice and Equality? Would the Minister be aware of what is happening in respect of PRISM?
Does there have to be permission given to them to trawl through an electronic farm or data storage site based on the island of Ireland? This is in the context of bringing forward new legislation and, as the Minister for Justice and Equality noted, keeping up with the technology. Certainly, technology is changing quickly. Do we sanction such trawling? If it is proved that the prism process is ongoing and taking place on the island of Ireland in the State of Ireland through these servers etc., are we comfortable with that?
We are now ranging far and wide and heading down the prism route in the context of the United States. I will come back to that in a moment but I will first deal with the more direct and simpler query raised by Senator Wilson. I refer the Senator to section 28 (1), which states: "The functions of the Minister under this Part may be performed by such officer of the Minister, not below the rank of Assistant Secretary, as the Minister may nominate for that purpose". If the Minister was to be abroad on business and uncontactable for some reason, a nominee of the Minister could deal with that issue.
I wish to address the later question that arose. Section 21 provides clearly that an application for an authorisation must be made in the first instance in writing - I emphasise that stipulation, but there is an exception to it which I will come to - by a member of the Garda Síochána not below the rank of assistant commissioner. I will not be getting a direct telephone call from some foreign intelligence agency asking if I could arrange for the mobile telephone system to be switched off. Naturally, there is contact and it is altogether important that there is contact between the Garda Síochána and the PSNI and between the Garda Síochána and our counterpart European police forces. There is a great deal of co-operation and work in dealing with counter-terrorism, the drugs issue, human trafficking and international fraud. There are a range of issues in respect of which the Garda engages and co-operates with police forces not only in Europe but in other parts of the globe when certain issues arise. However, for this power to be invoked it would have to be on foot of a request made by an assistant commissioner to me and I must be satisfied that the conditions referred to in section 20 are met. This means I would have to be furnished with information by the assistant commissioner which indicated that those conditions were met.
There is an exception to the requirement for the assistant commissioner's application to be in writing. Section 21(5) provides that a notification "may, if the Minister considers that the case is one of exceptional urgency, be given orally provided that the notification shall be confirmed in writing as soon as practicable". If an assistant commissioner made contact with me and explained to me orally the background to a matter and stated that he was concerned that there could be an explosive incident and that lives could be lost in five minutes' time and that he urgently needed an order or direction to close down the mobile telephone system, I would not ask him to send me a note about it and let him know that I would think about it. There must be some degree of common sense in these things and the legislation is designed to deal with those eventualities.
On the general issue, I am mindful, as the Minister for Justice and Equality and Minister for Defence, of the serious security issues that every state must deal with. I am especially conscious of the position of states which are particularly exposed to or threatened by terrorism with regularity. The United States is a country regularly at the receiving end of threats of terrorist atrocities. It suffered a major terrorist atrocity, the events of 11 September 2001, but they are not the only events that have happened in the United States that have resulted in the tragic loss of life. Naturally, I understand that a state such as the United States must have in place security arrangements to provide protection for its citizens which are reasonable and proportionate and which ensure the protection of life where that is possible.
They must try to ensure that those who pose a threat may be identified, but I emphasise the words "reasonable" and "proportionate". I would have concerns about some of what has been disclosed in relation to the level of surveillance that is being conducted as, in terms of the Irish Presidency of the European Union, I would have concerns, in the context of chairing the meetings of European Justice and Home Affairs Ministers, that the privacy of European citizens is not violated in circumstances that are inappropriate.
Unfortunately, I do not believe, from events we have seen in Europe, that we can take the view that in Europe we do not have individuals who are prepared to engage in terrorist activities and who pose a threat to life and limb. We saw the barbaric incident only a few days ago in London when two individuals were prepared, in open daylight, to murder in the most barbaric way a young drummer in the British Army.
States must take measures that are necessary but, clearly, what has been revealed is an understandable cause of concern. I have no information to indicate that, as the Senator put it, servers in this country are being infiltrated by American intelligence surveillance to identify who is sending e-mails to who or that other communications are in any way being invaded in that manner but there is an issue of Irish nationals in the United States or other European nationals who may telephone home or may send e-mails to friends or relations and who are not engaged in criminal activity but who are people in respect to whom there should be no suspicious and who have entitlements to privacy. In that context there is a meeting scheduled this week between the European Union and the United States as part of the European Presidency. That meeting is taking place in this State. We will be dealing with justice issues and I expect that Europe's concerns about some of the revelations will form part of the conversion and that, on behalf of the European Union, I will be leading that conversation. I am hoping that our American colleagues will share with us the information that is available to address the concerns that have arisen in this context. That is as far as I should put it, but the Senator asked if I have been asked to sanction any surveillance by the United States. To answer the Senator directly, the answer is "No".
I seek clarification from the Minister. A court hearing proceedings for an offence under this section, including any appeal or subsequent proceedings, may, on its own motion or on the application of the Director of Public Prosecutions, order that the proceedings or part of them be held otherwise than in public. Will the Minister explain the reasons for that?
It is because, clearly, if there was an issue arising under the legislation there may be information of a sensitive nature that would be very damaging if revealed in public. It may identify the sources of information. It may pose a risk to the security of the State or it may pose a risk to the lives of those who provided information. Clearly, offences would have to be proved beyond reasonable doubt. There will still be the proper level of proof, but we cannot have a criminal prosecution which is designed to deal with issues that could affect the security of the State or deal with matters of criminality in circumstances where, if the prosecution takes place, information could be revealed that could give rise to difficulty.
This type of provision is not unusual in the context of this type of measure.