Wednesday, 8 November 2023
Garda Síochána (Recording Devices) Bill 2022: Report and Final Stages
For the information of Members, please note that the House, by agreeing to the motion to recommit, allows a Committee Stage-style discussion on amendments Nos. 57 and 61 only. That is, Members may speak more than once on each of those amendments. In respect of other amendments, I would like to remind Senators that a Senator may speak only once on Report Stage, except the proposer of an amendment, who may reply to the discussion on the amendment. Also, on Report Stage, each non-Government amendment must be seconded.
Amendment No. 1 arises out of Committee Stage proceedings.Amendments Nos. 1, 2, 13, 33, 40, 53, 70, and 74 are related and may be discussed together by agreement.
Amendments Nos.1 and 2 are minor technical drafting amendments that will insert a letter "a" before both "uniform" and "helmet" in the definition of "body-worn camera" in section 2. Amendments Nos. 13, 33, 70, and 74 are again minor technical amendments that will insert semicolons in place of commas in sections 12, 21, 35, and 43. Amendment No. 40 is a minor technical amendment to section No. 26 which changes the word "and" to "or". Amendment No. 53 is a minor technical drafting amendment to section 28 for consistency of language in the Bill regarding references to data.
The current definition of "recording device" in the Bill is very broad, so all types of recording devices or systems used by An Garda Síochána should, at the very least, be specified in a relevant code of practice. Ideally, there should be a list of all the approved devices. In the absence of that, we should have a proper code of practice regarding the use of such devices. That applies in the context of both amendments Nos.3 and 4.
Section 47 already stipulates what can be included in a code of practice. Section 47(2) provides for An Garda Síochána to set out different provisions for different types of recording devices when drafting the codes. This means that what the Senator is seeking in amendments Nos.3 and 4 is already provided for. The codes of practice will not be included in the Bill directly; they will, however, be set out by An Garda Síochána and there will be a process that is clearly outlined in the Bill. In addition, the Garda Commissioner and his team must follow the latter when setting out the codes of practice.
I know it has been ruled out of order but to have the cameras calibrated is really important. I am aware it is a cost on the Exchequer. Ultimately, however, if these cameras are not doing what they are supposed to, they are not functioning properly. If they are not checked by suppliers approved by the Private Security Authority, PSA, then this legislation is not worth its salt because there will be no calibration of the CCTV within a particular device.
I move amendment No. 7:
In page 10, lines 16 to 18, to delete all words from and including “order;” in line 16 down to
and including line 18 and substitute “order where there are reasonable grounds to believe there is a significant threat;”.
Retained automatic number plate recognition, ANPR, data is not defined in the Bill. It is unclear if it refers to a retained pool of ANPR data pertaining to all vehicles or ANPR data strictly pertaining to vehicles of interest on a watchlist. Will the Minister specify which it is? This amendment would allow searches of retained ANPR data to be carried out without the requirement of reasonable grounds to believe there is significant threat to public safety or order. This could have a chilling effect on the right to protest and must be safeguarded against.
I ask that some leeway be given on the groupings. We received a grouping list for which we prepared before coming to the Chamber and then we received a brand-new list as we entered. We have two lists. In the original list, amendments Nos.1 to 4 were grouped together. That is what was emailed to us. We prepared to come to the Chamber to respond to Government amendments on that basis. It is difficult when we get a new list as we enter the House.
It is not the same because the order in which the amendments arise is important. There are 80 amendments. When you prepare, and to be effective, you have everything ready in light of the order in which the amendments are grouped.
Yes, but this changed in the past half an hour. When we prepared, we were originally told that amendments Nos. 1 to 4, inclusive, would be grouped together. All I am asking is if some leeway could be given for us to be able to figure out our notes because they no longer not match with the groupings.
Will the Senator allow me to speak, please? I allowed her to speak without interruption. I am sure everybody wants to accommodate her. I will accommodate her. What has happened is that the Bill's Office has done this. In my view, and maybe I am wrong, this will not interfere with the Senator's right to say whatever she wants regarding these amendments.
Nobody is saying I will not be allowed to speak. The Acting Chairperson did not have to have this length of a conversation. I only asked for some leeway regarding the fact that I prepared my notes in a certain order. That is it.
Yes, I wish to speak on amendments Nos. 7 to 9, inclusive. In speaking to amendment No. 8, the Bill as drafted does not include a provision that would allow a person who is interacting with a member of An Garda Síochána to ask that his or her body camera be turned on. This is a significant oversight. If we leave the Bill as is, it will mean gardaí will have absolute discretion as to when and where their cameras are turned on or off. As I have previously stated, this means body cams will not function as impartial records of crime scenes, but rather as one-sided tools of surveillance where gardaí has absolute power and the public has none. If we want body cameras to work as intended, which is to make objective recordings of crime scenes and interactions between members of An Garda Síochána and the public, it is absolutely essential that someone who is interacting with a garda can ask that his or her camera be turned on. That is the only way an impartial record can be created.
We know from the report released by the BBC in recent weeks, which I have previously highlighted to the Minister and to my colleagues in the House, that body cameras are regularly misused by police in the UK when they are using force. To remind the House, a two-year BBC investigation found that police officers in the UK were switching off their body-worn cameras when force was being used, as well as deleting footage and sharing videos on WhatsApp. Body cameras are also selectively turned on and off by police in the US in order to hide their wrongdoing. This is a proven fact now backed up by overwhelming evidence from both jurisdictions. The Bill relies entirely on codes of practice to govern the ethical use of body cams. This is precisely the same system as in the UK where a code of practice is also the primary means of regulation yet we are expected to believe that the widespread abuse in the UK will somehow not occur here in Ireland. I am frankly disappointed that, despite the enormous evidence we have presented to the Minister, there has been no engagement in respect of the issue. It is very naive for anyone to think that Irish gardaí using body cameras will simply be an exception to all the problems and abuse uncovered in the UK and the United States. I am frustrated and disappointed by the refusal to learn from the mistakes in other jurisdictions. The whole purpose of the Bill is to improve the safety of the Garda and the public, and to establish better trust between both parties. If we do not include what I consider to be basic rights-based provisions, like this one, in the Bill, we could end up further undermining the safety of trust between both parties. We previously tabled two variations of this amendment and have decided to bring only one back on Report Stage. Under this amendment, gardaí would be able to use their best judgment on whether to facilitate a request to turn their camera on. This provision would still give members of the Garda latitude to refuse this request, which takes account of some of the privacy concerns referred to by Senator Ward in the last debate. During the Committee Stage debate, the Minister advised us of her view that the rules and regulations to which gardaí will have to adhere in turning on or off their cameras ought to be set out by way of codes of practice. The argument for doing so is that the code can be made more rigorous without the need for legislative amendment. I suggest it is too important an issue to be left to the discretion of the Government of the day. This justification is not sufficient to omit the basic rights-based safeguard in this Bill. We only need to look at those examples in the UK, where the use of body cameras is not provided for in primary legislation, to know that we need to do something different. The codes of practice in the UK have proven utterly ineffective in preventing abuse, so why on earth would it be any different here? This is a very moderate amendment and I implore the Minister to accept it. We presented a huge amount of evidence to the Minister during the early stages of this Bill and the Minister has had endless opportunities to take evidence on board. This is now the last opportunity to engage. I ask that the Minister take it.
Amendment No. 12, which I think is also in this grouping, is a more moderate amendment than the one we proposed on Committee Stage. The original amendment specified the measures we believed should be taken to ensure that drones are visible to any subject and clearly identifiable as being operated by An Garda Síochána. The amendment is more general in that it merely states that reasonable measures must be taken to ensure that drones are clearly visible to the subject and clearly identifiable as being Garda operated. Without this amendment, I have grave concerns over the provisions around the use of drones in the Bill, as drafted. Sections 9 and 10 have some provisions which stipulate the use of body cameras and provide that they must be overt where possible. However, there are no specific safeguards in the Bill requiring the use of drones to be overt. This creates the potential for an alarming situation in which Garda drones could hover at such a height that they are invisible to the naked eye, while using powerful cameras to monitor civilians or situations in which Garda drones are operating at night, hidden in the darkness and invisible to civilians, while using night-vision cameras to observe them. This, I hope the Minister would agree, would be a dystopian prospect. We do not have the right, as legislators, to trample over the privacy rights of the public whenever we feel like it. There must be clear and limiting rules around the use of drones and they must be visible and identifiable to any member of the public being surveilled. When a person looks up, they can see a CCTV camera above them. Under the legislation, when a person interacts with a garda, they should be able to see the body camera clearly visible on their uniform. Why should this norm be abandoned for drones? If all other surveillance devices are only used in situations in which the public can see them, this same rule should extend to drones. The norm across all types of State surveillance is that the subject must be informed that they are being surveilled. I look forward to seeing how the Minister will ensure these norms are preserved when it comes to drones. A good first step would be to accept this amendment and ensure privacy rights are protected within the primary legislation.
Senator Ruane referred to what I said on Committee Stage about these amendments. I do not accept that the Garda should be put in the same category as the police in the United States, particularly, or even in the UK. I think they are better than that but in saying that, I can see that there are bad apples in the barrel. There always are. I recognise the point Senator Ruane is making regarding the need to have impartiality or independence to this process. However, I also have a difficulty with the notion that it is not up to the actual garda or protocol but an individual with whom he or she is dealing, mar dhea - because that is exactly what it would be - to make the decision as to whether the camera is turned on or not. That is my difficulty with it. She made reference to the Minister's response on that last occasion about relying on the codes of practice, which is what it is all about. Those codes of practice need to be rock solid. It needs to be absolutely clear when there is an obligation on the garda and it needs to make provision for scenarios in which the garda cannot evade turning on the camera to serve his or her purposes. The purposes to which I think Senator Ruane referred is when somebody gets roughed up by a garda. It happens, unfortunately. Part of the rationale behind having body cameras is to stop that kind of thing. I said on a number of occasions that the value of having garda body cameras is that it protects gardaí concerning false allegations and it helps them to gather evidence but it also protects citizens regarding overzealous gardaí. It is important that those protocols are such that they guarantee the safety of anybody with whom a garda is dealing. I do not want to say things about gardaí in general when they really only apply to a small few but we know they are there. One benefit of garda body cameras is that they avoid the suggestion, even, and they also, I hope, will temper the base instincts of somebody inclined to behave in a way outside the law, let us be honest. I do not agree with the amendment and I cannot support it. Will the Minister address those protocols?
One thing Senator Ruane said in her contribution was that this should not be left down to the Government of the day. How will the protocols operate? I presume they will be approved by the Minister. Will there be any function for them to be approved by the Oireachtas, either through the Committee on Justice or being laid before the Houses? They will be public documents, I presume. Will there be an engagement with bodies like the Irish Council for Civil Liberties, ICCL, or other organisations that operate in the sphere of protecting individual rights, in particular? Will there be engagement with them before the protocols are put together? What does the Minister foresee as being the mechanism for those protocols? I cannot support the amendment because this must be done through procedures and protocols, rather than through legislation because legislation is too rigid to do it and does not allow for the flexibility that will be required.
I will respond to all of them. I will take them in order. Senator Keogan spoke about amendment No. 7. I know she was not available at that time but on Committee Stage I said clearly that this is an operational matter for the Garda Commissioner. Again, a lot of what we are discussing in these groupings are matters that will be set out in the codes of practice rather than in the Bill. As part of the drafting of a code of practice, there will be a consultation with stakeholders, as outlined by Senator Ward. There will also be input from the general public so Members of this House and others will have an opportunity to input into the development of these codes of practice. Gardaí must be allowed to decide what the level of threat is. We should not include in legislation how we would evaluate a threat level, without knowing the scenario, the evidence or the situation on the ground. It is up to the gardaí themselves to evaluate the threat level posed to public security and safety, which may evolve over a shorter or longer timeframe. The Garda decision-making model is deployed by gardaí to ensure there is consistency in decision-making, even in the most dynamic situations in which they have to apply it immediately. We saw that with recent protests when gardaí had to respond immediately but they also take that graduated response. I stress it cannot and should not be the case that a Garda member is the only person who does not have the ability to record an incident. At the moment, it is very one-sided. Gardaí are the only individuals, for the most part, on the ground who do not record incidents. We know it can be amended, changed and perceived in certain ways when others record them. It is important that gardaí have the tools and ability to record incidents as they happen.
On the deletion of both the execution of criminal penalties and the protection of the security of the State, it is proposed in respect of the former that there is a clear and transparent use case in section 9(3), which would fall under this purpose. That is when they are executing a court order or a warrant. In respect of the latter, it is not clear as to why the Senator is proposing to delete the protection of the security of the State as a purpose. That is on line 17 on page 10 of the Bill.The purpose currently outlined in section 9(2), as the Bill stands, is consistent with the grounds on which restrictions on privacy rights may be allowed under Article 8 of the ECHR. That is the right to respect for private and family life, home and correspondence. On those grounds, I cannot accept this amendment.
Regarding amendment No. 8 in the name of Senator Ruane, I stress that this is really for the codes of conduct. It is appropriate that it would be in the codes of conduct. While I appreciate the intention behind the amendment, there are circumstances where a member might not turn on their camera - it might be that they have suddenly been attacked and do not have the time. As we saw only yesterday, reports of attacks on members of An Garda Síochána have increased. It is very possible that a member may not have the time. It will need to be set out very clearly in the codes of conduct that where members do not turn on their cameras or where they turn them off for any reason, they will have to explain why. They will have to go through a particular process. If they have done so incorrectly - if they have not turned it on or turned it off as they should have - then there can be disciplinary proceedings within An Garda Síochána.
Separate from that, members may go to GSOC to make complaints. The separate legislation we are bringing through the House at the moment will empower GSOC further to be able to respond to these types of complaints in a quicker, more efficient and more effective way. A number of different changes are taking place.
The code governing this part will contain further details of the operation of it. As I said, this is subject to consultation with various bodies, including the ECHR and others which will have a say to ensure there is fairness and balance in how these cameras are being used.
Amendment No. 9 is in the name of Senator Keogan. Training of Garda personnel is very much an operational matter for the Commissioner, irrespective of whether it is on this, on hate crime or relating to domestic and sexual violence. However, section 47(8) of this Bill provides that the Garda Commissioner should take all reasonable steps to ensure that any codes of practice are brought to the attention of personnel. That would be in the form of training.
A pilot scheme in respect of body-worn cameras will be carried out. I expect that will take place in the middle of next year. Already the Garda is looking at the various different types of cameras used in different jurisdictions, the different types of technologies, how they are used and where they are used on the person. While at the National Ploughing Championships recently, I got a demonstration on these. Work is already under way. They will be officially piloted once this legislation is enacted and once they are procured. For that reason, I cannot support the amendment. I reassure the Senator that training is part of this. There will be pilots to ensure that whatever we procure is the best. We have one benefit in that we are late to the party here. We can learn from the challenges and difficulties in the past in other jurisdictions.
Regarding amendment No. 11, as I said on Committee Stage, the location and manner in which it is worn will be informed by international best practice. This is being looked at, as I mentioned already. The type of camera to be used is yet to be decided. As the Senator will be aware, a request for information was released by the Garda on 12 September, so that process is under way. It will ultimately depend on the type of camera available. Technology is improving all the time and it is important that we have the best technology available to us.
Amendment No. 12 would not be a practical solution to what the Senator is trying to achieve. Aerial vehicles might be up too high to put something on them for people to be able to see that there is a camera attached regardless of the nature or type of the identifier placed on the camera. Whether it is this or the body-worn cameras, the Bill already clearly states at section 9(5)(a) that recording devices insofar as practicable must be overt. That obviously applies to where drones are being used. The process of drafting a code, includes this particular piece, involves consultation with the Data Protection Commission. When using a device of this kind, our obligations relating to data protection and people's privacy rights must be taken into account. The fact that the code of conduct can be agreed only with the engagement and agreement of the Data Protection Commission indicates very clearly that the Garda must respect people's privacy rights, whether it is a body-worn camera, a drone or a camera on a canine unit. Irrespective of type of equipment, it must be in line with the data protection legislation. As we have seen with other legislation, where it is not, it must be changed.
As the Senator will know, parts of this Bill amend issues that arose relating to CCTV directly because the Data Protection Commission raised concerns about how it was being used and people's privacy rights. That is a very clear example of where the Data Protection Commission has highlighted concerns and we have responded and made changes. It is very welcome that they will be included at the very outset in setting out these codes of conduct.
On section 9, although the Minister has committed to introducing a pilot scheme, the training of gardaí on these devices is really important. I cannot stress that enough. Many gardaí do not even know how to access current CCTV data. It is really important to have training for whoever will be controlling the data.
To avoid the risk of problems arising, it is very reasonable to have an amendment asking for the pilot schemes before deployment. The schemes should test the effectiveness for a specified purpose and facilitate a human rights impact assessment, a privacy impact assessment and a data protection impact assessment where necessary. That should be done after the pilot scheme to ensure that everything is protected and that privacy rights are protected. Is the Minister committed to having a pilot scheme? I want her to specify-----
I can come back on that. However, training is an operational matter for the Commissioner and so it is not within our remit here. As the Garda Commissioner has very clearly shown with the rollout of specialist units in any area, training is absolutely paramount. For front-line gardaí using specialist equipment, whether it is CCTV or otherwise, it will be part of the overall training. However, it is not for me to specify in legislation what training the Commissioner should or should not roll out. It is an operational matter for the Garda Commissioner and it is not appropriate in this legislation.
Garret Ahearn, Niall Blaney, Maria Byrne, Pat Casey, Shane Cassells, Lisa Chambers, Martin Conway, Ollie Crowe, John Cummins, Emer Currie, Paul Daly, Regina Doherty, Aisling Dolan, Mary Fitzpatrick, Gerry Horkan, Seán Kyne, Tim Lombard, John McGahon, Erin McGreehan, Eugene Murphy, Fiona O'Loughlin, Mary Seery Kearney, Barry Ward, Diarmuid Wilson.
Garret Ahearn, Maria Byrne, Pat Casey, Shane Cassells, Lisa Chambers, Martin Conway, Ollie Crowe, John Cummins, Emer Currie, Paul Daly, Regina Doherty, Aisling Dolan, Mary Fitzpatrick, Gerry Horkan, Seán Kyne, Tim Lombard, John McGahon, Erin McGreehan, Eugene Murphy, Fiona O'Loughlin, Pauline O'Reilly, Mary Seery Kearney, Barry Ward, Diarmuid Wilson.
I move amendment No. 9:
In page 11, between lines 3 and 4, to insert the following: “(f) shall do so after receiving sufficient training to make them suitably qualified to use the relevant device, and after receiving sufficient data protection training so as to render them proficient in operating the device in accordance with legislation regulating the use of data,
(g) shall do so after a pilot scheme in respect of that device has been completed, and the results of which have been assessed and published,”.
Garret Ahearn, Maria Byrne, Pat Casey, Shane Cassells, Lisa Chambers, Martin Conway, Ollie Crowe, John Cummins, Emer Currie, Paul Daly, Aidan Davitt, Regina Doherty, Aisling Dolan, Gerry Horkan, Seán Kyne, Tim Lombard, John McGahon, Erin McGreehan, Eugene Murphy, Fiona O'Loughlin, Pauline O'Reilly, Mary Seery Kearney, Barry Ward, Diarmuid Wilson.
I move amendment No. 11:
In page 11, to delete lines 21 and 22 and substitute the following: “(a) is worn in a location and manner that maximises the camera’s ability to capture video footage of the Garda member’s activities, and”
Garret Ahearn, Catherine Ardagh, Maria Byrne, Pat Casey, Shane Cassells, Lisa Chambers, Lorraine Clifford-Lee, Martin Conway, Ollie Crowe, John Cummins, Emer Currie, Paul Daly, Aidan Davitt, Regina Doherty, Aisling Dolan, Mary Fitzpatrick, Róisín Garvey, Gerry Horkan, Seán Kyne, Tim Lombard, John McGahon, Erin McGreehan, Eugene Murphy, Fiona O'Loughlin, Pauline O'Reilly, Ned O'Sullivan, Mary Seery Kearney, Barry Ward, Diarmuid Wilson.
I move amendment No. 12:
In page 11, between lines 23 and 24, to insert the following: “Additional provisions regarding operation of cameras affixed to, or part of, an aerial vehicle
11.Reasonable measures shall be taken to ensure that the use of any camera affixed to or part of an aerial vehicle, manned or unmanned, shall be overt and clearly identifiable as being Garda operated.”.
I will speak to all of the amendments in this grouping. Amendment No. 14 would make it an offence for a garda to turn off their body camera or cause it not to be operating in the first instance to knowingly and purposefully conceal the use or misuse of force. The Minister advised during Committee Stage discussions that she could not accept this amendment because placing the circumstances where body cameras should or should not be operating within legislation would be too restrictive. The Minister advised that, instead, they would be set out within the yet to be defined codes of practice.
As with previous amendments, this is a serious, significant issue for me, not only that this will be in codes of practice and not in regulation but also that we have not yet seen those codes of practice. It is hard to have full confidence in what will be when we have not yet seen what those codes of practice are. I reiterate the point that codes of practice govern the use of body cams in the UK and they have been insufficient to prevent abuse. I hope that we learn from the failings of those codes of practice. If we do not, Ireland will be no different. We must insert penalties into the primary legislation for selective use of body cams or the legislation will be toothless and we will be in the exactly the same position as the UK.
The legislation, as drafted, creates specific penalties for destroying data collected by a body cam but it does not create any penalties for selectively turning on and off body cams, which we know to be real issues from looking at other jurisdictions.
On Second Stage, I highlighted the 2021 reporting by Reuters on the use of body cams in the United States that found that wide disparities remain in how they are employed and when the footage is made public. More than half of the jurisdictions in the US where body cams are used had no clear guidelines for when they should be turned on in 2018 but the majority of these laws have been updated in the intervening years to specifically address concerns regarding the selective use of body cams.
I implore the Minister to learn from the mistakes of other jurisdictions and to bake safeguards into the legislation to prevent the abuse and misuse of body cameras by Garda personnel. We have presented overwhelming evidence previously on this issue and urge the Minister to take this opportunity to address this within this legislation.
Amendment No. 17 inserts a safeguard in the Bill that would prevent someone from sharing data gathered by a garda-operated recording device unless they had lawful authority to do so. If the amendment were accepted, someone who unlawfully shared photos, video or audio data captured by a recording device with a third party would be guilty of an offence. We all remember the tragic experience of the late Dara Quigley, who had very sensitive CCTV footage recorded by a garda who then shared it within a WhatsApp group. The garda was never charged criminally. This amendment tries to prevent that from ever happening in relation to data that will be gathered by garda-operated recording devices.
In the Committee Stage debate, the Minister advised that my concerns in this area are covered by Coco’s Law but my understanding of the Harassment, Harmful Communications and Related Offences Act is that it is only the sharing of intimate images or video that is an offence. In the Act, intimate images are interpreted as images purporting to be of a person’s “genitals, buttocks or anal region and, in the case of a female, her breasts” or their underwear and images in which a person is naked or engaged in sexual activity. The data we are referring to in this amendment is broader in scope than that. With this amendment, we intend to cover scenarios where a person may be incapacitated, inebriated, having a psychotic episode, under the influence with regard to experiencing addiction or otherwise affected.
I am sure we have all seen videos online, whether from this jurisdiction or another, where footage of someone in a vulnerable state is captured and shared widely. This amendment seeks to prevent that as it related to data captured by Garda personnel in the course of their duties.
The BBC report I spoke about earlier found cases in seven different police forces in the UK where police officers shared camera footage with colleagues or friends in person, on WhatsApp or on social media. If this happens in the UK, it can happen here. Not every incident reported by the BBC related to the sharing of intimate imagery and so it is my assertion that we need to insert this safeguard to protect people’s fundamental right to privacy, particularly those in vulnerable positions. I struggle to comprehend the argument against doing so and I hope the Minister will accept this amendment.
Like amendment No. 17, amendment No. 71 seeks to prevent the sharing of data obtained by a recording device from being shared unlawfully with a third party. If the amendment were accepted, a person who unlawfully shared a photo, video or audio data captured by CCTV camera that had been installed under the auspices of this Bill would be guilty of an offence. As I set out when speaking about amendment No. 17, this is a necessary safeguard to protect vulnerable persons who may have been the subject of a recording. While I appreciate the sharing of intimate images without consent is covered by Coco’s Law, as I said, there are many scenarios wherein vulnerable individuals might have recordings captured of them that are not intimate in nature under the legislation but, if shared with a third party or on social media, could undermine their physical and mental well-being.
Like amendments Nos. 17 and 71, amendment No. 77 seeks to prevent the unlawful sharing of data obtained by a recording device with a third party. If the amendment were accepted, the person who unlawfully shared a photo, video or audio data captured by CCTV camera that had been installed under the auspices of the Bill would be guilty of an offence. I spoke to the context of this amendment when speaking to amendments Nos. 17 and 71 and so I will refrain from repeating the case again in respect of their inclusion.
We just discussed this but, again, I appreciate where the Senator is coming from. Regarding amendment No. 14, I do not think it is appropriate that the Houses of the Oireachtas legislate for the codes of practice or codes of conduct.Such an operational matter must be developed by the Garda but there must be oversight and ability for discussion, debate, engagement and for everybody to have their say, not only those working in An Garda Síochána and associated authorities but also those looking at civil liberties and individual's rights, and Members of these Houses. Members of the Seanad and the Dáil will be able to contribute to the process when the Bill is enacted and when the codes of conduct are being developed.
I reiterate there will be a clear process as to when a Garda should or should not turn on or off the cameras. We cannot predict every scenario and there might be a situation where a garda does not have time to turn on the camera. Gardaí will have to be able to explain this and if they cannot explain why it has been turned on or off there will be disciplinary procedures within An Garda Síochána. There will be an opportunity for people to go to GSOC if they feel it has not been dealt with properly. The changes in GSOC are to ensure that if someone makes a complaint it is dealt with quickly and effectively. This change will happen in the separate policing Bill going through the Houses.
With regard to amendments Nos. 17, 21 and 77 it is already an offence for a member of the Garda under section 62 of the Garda Síochána Act 2005 to disclose any information. This includes videos, texts and evidence. If gardaí disclose information in the course of carrying out their duties, and if they know this would cause harm to another individual, it is already an offence that is very clearly covered. As has been mentioned, Coco's Law criminalises the distribution or publishing of intimate images. As has been said, intimate images may portray certain parts of a person's body or certain acts. I know the particular case that has been referenced and I will not get into it in too much detail. It very clearly comes under the remit and this is the overall intention. It relates not only to intimate partners or where there might have been a relationship; it is any type of image. We know the legislation came about because of the bullying of a young girl. It is to capture various types of offences that may take place. What Senator Ruane is trying to achieve in the amendment is very much in the Bill and in other legislation under which the Garda is governed. Any improper dissemination would fall under these offences. I do not want duplication in the Bill and it is for this reason I will not accept the amendment. I accept what Senator Ruane is trying to achieve but I believe it is already covered.
I thank the Minister. In the codes of practice there is a process whereby somebody will have to be answerable as to when a camera is turned on or off and there will be disciplinary procedures. When I consider this I must weigh up turning on or off a camera merely being a disciplinary procedure against an individual who may be impacted and their case, their life or their trial. I understand something may come upon somebody very quickly and there may be a very legitimate reason as to why a camera might not be on. Senator Keogan's amendment which was ruled out of order would have meant the cameras were always turned on. There would then not be an issue of somebody deciding to turn on a camera. This would come with its own complications regarding privacy.
There are other ways in which to address this. I fully accept that there may be disciplinary procedures but I cannot get away from the cost there may be through not having impartial video footage. Somebody could end up in court for a particular reason or somebody could end up with a certain sentence that could have been very different had there been impartial evidence. The fact that a Garda goes through a disciplinary procedure does not protect the civilian who may be tasked with trying to prove something outside the realm of what has been captured in footage. I can accept that the procedures will allow for gardaí to be answerable. I still do not feel that on balance it protects the civilians whose lives could be altered forever by a camera being turned on or off at a particular time.
I have experienced aggravation from gardaí throughout my life. It has got better, or perhaps I do not experience it as much. I do not know whether young people in my community would say that the aggravation has improved. When I was younger I watched gardaí rile up situations and enhance violence and bring it on by how they treated people for no reason. If a camera is only turned on to pick up the response to this and somebody responding to a difficult situation with a garda, then we will only ever see one side of it. That individual's life could be impacted forever. Nobody may want to believe that some preceding event happened that could give context to what then took place. This creates and maintains a negative relationship between many people and the Garda. We want to move away from this. We want people to feel safer in their interactions. For this to happen there has to be balance in how they are protected. I can accept there may be disciplinary procedures but I cannot accept the potential for someone's life to be altered, or for them to receive a custodial sentence or conviction, because there is not full or partial evidence of an event that happened.
With regard to Coco's Law and section 62, is the Minister saying that under section 62 there will be an offence if a Garda shares information? I want to look beyond what falls under Coco's Law or even the situation with Dara. I have worked in addiction for 20 years. I have seen not gardaí but people in general share the most heartbreaking videos of people who are clearly very vulnerable under the influence on the Luas and buses. It may happen to people with special needs. I have supported people who have been filmed during psychotic episodes when they may have been eating their own faeces. These are the images that people share. So much can be happen to someone who is vulnerable with regard to mental health that may never expose an area of their body to fall under Coco's Law but videos being shared could change their lives forever with regard to their recovery. I do not feel as though this has been captured. Even though they are not intimate images under the definition of Coco's Law they are life-changing images of vulnerable people. Whether we like it or not people share things in groups all the time. They find it funny and they laugh with their friends. It is forwarded on. It does not matter whether people are gardaí, politicians or students in school. People do it. I am not saying that it will be specific to gardaí. For some reason people are amused by other people's hardships and miseries. This is across the board.
My friend Paul Griffin lost his sister on the M50. She was decapitated. We saw how quickly images of her lifeless body were sent. They were sent to groups in which he was a member. People did not know it was his sister. People share images without thinking. Gardaí will be no different from any other human being who shares images thinking no end user will be impacted by receiving it. The legislation would be extremely strengthened by including amendments that could protect the most vulnerable people with an explicit regulation that creates an offence of putting any vulnerable person in danger by sharing images of them.
It is explicitly stated in section 62 of the Garda Síochána Act 2005 that it is an offence for a member to disclose any information obtained in the course of carrying out their duties. This includes any information, whether it is a recording or video footage, not only of an intimate image but any type of-----
It is any information. It is anything they come across in the course of their duties, whether a case they are working on or a case somebody else is working on. This covers all of the issues. It is already a criminal offence. I do not want to repeat what is already a criminal offence in another Act. It is there, it is established and it has been in place since 2005.I fully agree with the Senator in that the issues with social media, end-to-end encryption and WhatsApp messages are problematic for so many reasons. At European level, we are trying to work with and combat so much harmful content, from that related to child sexual abuse to that related to assault and rape. I am referring to everything that is moved around via social media. The online safety commission has been established here. It is the first of its kind across Europe. We are a flagship in that regard. This is about removing harmful and illegal content. We are doing a lot of work in this area but it is challenging, particularly where there is end-to-end encryption and where, for some reason, people like to share the material in question. I, like many, do not like to pass on, share or see content of the kind in question that comes my way, but sometimes you cannot help it when it is sent to you. I absolutely believe that what the Senator is talking about is already covered by the law, but I can have the relevant legislation sent to her for the sake of certainty.
On the matter of turning cameras on and off, I absolutely agree that a person's life can be changed by one incident, but this applies both ways. At the moment, gardaí do not have the ability to gain a clear picture of what happens. So often, the use of camera phones gives us a distorted picture of what happens. It is a matter of balancing and ensuring that gardaí are protected, while also ensuring that individuals are protected. Again, I point to an issue that has been raised with me time and again, namely, domestic violence. Gardaí are the first on the scene, so the first few moments they capture are absolutely vital. It is not just about protecting gardaí but also about protecting the people around them. For those reasons, I am not accepting the amendment. It is an operational issue. We need the Garda to be able to work through how it would operate, or not. I hope the fact that so many people will be involved in the process, ourselves included, will give some assurance that any lessons that should be learned from other jurisdictions will be learned. I agree with Senator Ward that we should not compare our police service with those in the US or elsewhere. At the same time, however, we can benefit from learning about the mistakes they have made and ensure that the structures are absolutely watertight in order that those mistakes will not be made here and that there will be recourse where people do cross the line.
My point relates to the reference to harmful effect in section 62 of Garda Síochána Act 2005. I was glancing through the legislation as the Minister was speaking. It states it is an offence to disclose information if the person knows its disclosure is likely to have a harmful effect. If I do not push these amendments, could we consider section 62 between now and when we come back to this and ascertain what actually constitutes a harmful effect and whether there is a loophole if somebody says he or she did not know the disclosure would have a harmful effect? People could find a way around the concept of harmful effect in a defence regarding the sharing of images. The sharing of the images should just be illegal; it should not be a case of whether a person knows sharing them would have a harmful effect. There is a clause-----
The reason is that it might sometimes be necessary for a garda to share information in the course of duty, but where the sharing is crossing a line and is not to deal with a case or is unnecessary, it is a different matter. Someone who is part of a team might have to share the information for very valid purposes. The reason for the reference to a harmful effect is to distinguish between the sharing of information that is clearly not required as part of one's duty or an investigation and the sharing of information that is.
It would. I do not have to hand all the details relating to the Act in question because we are not focusing on it now. However, I have been told very clearly that what the Senator is trying to achieve is very much covered by the 2005 Act. I am not sure I am going to be able to satisfy the Senator in this discussion. It is a question of any information obtained. The reason for the reference to harmful effect is that there is information-sharing that is not harmful because it is done in the course of dealing with a case or the body of work of the team.
Garret Ahearn, Catherine Ardagh, Niall Blaney, Maria Byrne, Pat Casey, Shane Cassells, Lorraine Clifford-Lee, Martin Conway, Ollie Crowe, John Cummins, Emer Currie, Paul Daly, Aidan Davitt, Regina Doherty, Mary Fitzpatrick, Róisín Garvey, Gerry Horkan, Seán Kyne, Tim Lombard, John McGahon, Erin McGreehan, Eugene Murphy, Ned O'Sullivan, Mary Seery Kearney, Diarmuid Wilson.