Wednesday, 15 November 2023
Garda Síochána (Recording Devices) Bill 2022: Report and Final Stages [Resumed]
These are minor technical drafting amendments to delete the word "threatens" as the legal advice is that this is covered by the word "coerces" in sections 12, 21, 24, 35, 42 and 46. Similarly, amendments Nos. 16, 35, 39, 73, 76 and 82 are minor technical drafting amendments to sections 12, 21, 24, 35, 42 and 46 to ensure it is clear that it is an offence to induce, coerce or request without lawful authority a member of Garda personnel to commit an offence under the previous subsection.
I move amendment No. 17:
In page 12, between lines 5 and 6, to insert the following: “(3) A person who, without lawful authority or reasonable excuse, shares audio or visual data gathered by a recording device shall be guilty of an offence.”.
Catherine Ardagh, Niall Blaney, Malcolm Byrne, Micheál Carrigy, Pat Casey, Shane Cassells, Lisa Chambers, Lorraine Clifford-Lee, Martin Conway, Ollie Crowe, Paul Daly, Aidan Davitt, Regina Doherty, Timmy Dooley, Mary Fitzpatrick, Robbie Gallagher, Gerry Horkan, Seán Kyne, John McGahon, Erin McGreehan, Joe O'Reilly, Pauline O'Reilly, Mary Seery Kearney, Diarmuid Wilson.
I move amendment No. 18:
In page 14, line 24, to delete “or”.
Part 3 makes provisions for An Garda to covertly track certain vehicles using automatic number plate recognition, ANPR. This is an intrusive surveillance measure, although I understand it is justified in certain circumstances. The Bill, as drafted, would allow gardaí of the rank of superintendent or higher to approve ANPR surveillance. The amendment proposes that superintendents or their superiors and a District Court judge would have to approve an application for this type of surveillance to be applied. The Court of Justice of the European Union, ECJ, has warned many times that accessing targeted data out of large pools of data, as is proposed in ANPR, must only happen subject to judicial approval. I stress the point that this provision was not included in the general scheme of the Bill and was not subject, therefore, to pre-legislative scrutiny.
Amendments tabled on Committee Stage sought to leave decisions in respect of this type of surveillance entirely to the discretion of the Judiciary but were deemed to make further provisions in this Part unworkable. In response to this, we have reframed the amendment in order that both Garda and District Court approval would be necessary before ANPR surveillance could be undertaken. The Minister advised on Committee Stage that having to go to a District Court judge for every possible arrest offence can be prohibitive and delay gathering evidence but that is not what the amendment aims to achieve.
All we are asking with amendment No. 19 is that the safeguards proposed by the Minister in respect of focused monitoring of an individual using ANPR for a period of greater than three months would also be applied to monitoring of up to three months. This is a necessary safeguard in the context of the use of this invasive practice. I understand and agree with the Minister that we need to be proportionate and not prevent the Garda from being able to take swift action in response to an issue or incident but it is my assertion that the monitoring using ANPR of an individual for a period of two months and 27 days, for example, is not the Garda taking swift action. This is a significantly invasive practice that I hope will only be used in specific situations where the necessity and proportionality of such a step are explicit. The safest way to ensure people's privacy and fundamental rights are honoured within this would be for the District Court to have oversight of the decision to monitor, whether that be for two months and 27 days or three months. Amendment No. 19 was submitted as a consequential amendment to the acceptance of amendment No. 18. They should be considered together for the purposes of this debate.
Like amendments Nos. 18 and 19, amendment No. 21 seeks to ensure the area District Court would have oversight of ANPR surveillance, irrespective of the length of time for which the monitoring is proposed to take place. This amendment would make it the case that ANPR monitoring could not be acted on until authorised by a judge of the District Court. I have already spoken to the need for this safeguard and I will not repeat myself. These amendments ought to be considered together in terms of their shared intent.
Yes. Amendment No. 22 proposes to delete lines 8 and 9 on page 16 and substitute "the name of the District Court judge and the date of approval". Section 18 allows for the secret tracking to be approved for up to three months, but potentially six months, subject to the approval of the District Court judge assigned by the Dublin metropolitan district. For ANPR to work, all number plate data must be logged. The pool of data is subsequently checked against a watchlist of number plates of vehicles of interest. The Bill proposes the processing of all number plate data and then the provision of access to the number plate data in which the Garda is interested. The ECJ has repeatedly warned that accessing targeted data out of vast pools of data must happen only subject to judicial approval. The Dwyer judgment is an example of that.Amendment No. 23 proposes, in page 15, line 13, to delete “member of the Garda Síochána” and substitute “District Court judge”. I think setting it at a member of An Garda Síochána is far too low of a bar. The principles of necessity, proportionality and the impact of the measure on people's fundamental rights must be considered when the application is made.
There may be some confusion over what focused monitoring is and what An Garda Síochána can do to monitor movement of vehicles using automatic number plate recognition. To start, ANPR is already widely used by An Garda Síochána for roads policing and this Bill will not change that. The provisions of this section and section 19 are expanding Garda use of ANPR to include focused monitoring. Focused monitoring, monitoring the movements of a particular vehicle, can only happen if a vehicle, the subject of the focused monitoring application and approval, passes a camera that is ANPR enabled. These could be Garda-operated ANPR cameras or the ANPR cameras from the three bodies listed in the Bill. As the Minister highlighted on Committee Stage, focused monitoring can only be used for very limited purposes, specifically in investigations relating to arrestable offences which are offences that have a term of imprisonment of five years or more, and for matters relating to national security. An example of this would be where An Garda Síochána wants to monitor the movements of a vehicle associated with a rural burglary gang.
Three months is considered a reasonable maximum timeframe for this type of internal approval, particularly considering the approving officer will be a superintendent or higher rank and will be independent of the investigation or matter for which the application is being made. This part of the Bill is not only governed by a code of practice but is also subject to oversight by a High Court judge. This means the High Court judge will have oversight of the operation of focused monitoring by An Garda Síochána. I should also point out that focused monitoring beyond three months is the subject of judicial authorisation and will not be automatic.
There are a number of safeguards included in this section, notwithstanding the code and the oversight by a High Court judge. These include, and I have already referenced the majority of safeguards, that a superintendent or higher ranked officer can only approve the application where he or she believes on reasonable grounds that the vehicle in question is connected to an investigation relating to an arrestable offence or matters relating to the security of the State, and he or she is satisfied that the focused monitoring is necessary and proportionate with regard to the purpose of the investigation.
In respect of amendments Nos. 18 and 19, to remove the "or" and to delete "under section 19" will not achieve the desired effect that Senators Ruane and Flynn intend, namely, to ensure that focused monitoring is only authorised by a judge of the District Court. The wording of that section would no longer be clear. If I look to amendment No. 21 in conjunction with amendments Nos. 18 and 19, the proposed amendments would allow for internal approval, subject to authorisation of a judge. However, the variation of the internal approval, which is under subsection (5), would be permitted as well. This would make the provisions unworkable as it would not be clear whether an approval varied would in fact be permissible if a judge has provided the original authorisation and not the variation under subsection (5).
Amendments Nos. 20, 22 and 23 proposed by Senators Keogan and Mullen also look to replace the internal approval mechanism for focused monitoring to require an authorisation from a judge in order to monitor the movements of a vehicle. Again, the provisions would be unworkable. Subsections (1) and (3) would then permit focused monitoring via internal approval and subsection (2) would state that only the judge could approve focused monitoring if he or she were independent of the investigation of the offence. It is unclear as to what the intention of subsection (2) is in this regard. It is my firm belief that focused monitoring approved internally and subject to the aforementioned safeguards for up to three months before judicial authorisation is required is both a balanced and a reasonable approach. For those reasons, I cannot accept the amendments.
I move amendment No. 24:
In page 15, line 17, after “approval” to insert “, for a collective period of not more than three months”.
This amendment seeks to make explicit in the Bill that An Garda Síochána could not undertake monitoring of an individual using ANPR for a combined period of more than three months. As the Bill is drafted, a superintendent of An Garda Síochána can approve ANPR monitoring for a period of up to three months without District Court approval. While we would like to see the Bill amended such that the District Court would have oversight of each application, this amendment ensures that An Garda Síochána would not be in a position to undertake, for example, two periods of monitoring of an individual of less than three months which, when taken together, would be in excess of the three-month limit the Bill provides.
Amendment No. 27 is a simple amendment which seeks to include specific reference to the impact of focused monitoring as will be provided for in Part 3 of the Bill on the privacy and fundamental rights of a person being monitoring by the Garda where applications for monitoring for more than three months are being considered by the District Court judge. If this amendment were accepted, any application for continued focused monitoring would need to be accompanied by a statement that outlines why the applicant believes that continued focused monitoring is necessary and proportionate, having specific consideration of the impact of ongoing monitoring on someone's privacy and fundamental rights.
I intend to move amendment No. 25, God willing. For now I will speak to amendments Nos. 25 and 26. Amendment No. 25 is similar to that of Senator Ruane. The issue here is that we all want to support the Garda in the pursuit of its duties but in a democracy one always has to have regard to checks and balances and the need to ensure the work we entrust to the Garda is always done in a way that is mindful of people's individual rights and freedoms. That is the delicate but important balance that one always seeks to achieve in a democratic system. It is clear that a power, an approval like this, is something irregular and therefore should not be something that just goes on indefinitely or for too long a period. For this reason, we consider that a period of three months is appropriate.
Again, having regard to the principle I have just set out, amendment No. 26 simply seeks to impose a duty on a member that he or she would have regard to the necessity and proportionality of a measure pursuant to an order under this section. Focused monitoring is something new and unusual that has to be undertaken with care and with respect for people's fundamental rights and freedoms. The requirement under this amendment would be that the member take into account the impact, as is the case in Senator Ruane's amendment, while also specifying that the member must have regard to the necessity and proportionality of the measure in taking into account its impact on the fundamental rights of individuals.
On amendments Nos. 24 and 25, in the section as it stands, this is already achieved. Internal approval for focused monitoring can be varied but the duration of the approval cannot exceed three months, as set out in section 18(3)(a), to which section 18(5) is subject. I direct the Senators to page 14, line 15, where it states that a member of An Garda Síochána may: "vary, subject to subsection (3)(a), the duration of an approval granted under this section" and to subsection 18(3)(a), which ends on page 14, line 2, and states "shall not exceed a duration of 3 months". As such, I cannot accept the amendments as proposed.
In relation to amendments Nos. 26 and 27, section 19(2) already contains details of what is required for an application to a judge to extend focused monitoring beyond three months. This includes a statement of the reasons the applicant believes that continued focused monitoring is necessary and proportionate. It is ultimately for the judge of the District Court to determine if An Garda Síochána can continue to monitor a vehicle past three months.
I should point out that human rights impact assessments will be required as part of the procedure for drafting a code of practice. I emphasise my respect for the right to privacy of all our citizens, but I believe that criminals do not have a right to privacy such that it in can aid them to evade investigation, arrest or prosecution. I therefore cannot accept amendments Nos. 26 or 27.
I move amendment No. 25:
In page 15, between lines 17 and 18, to insert the following: “(6) The total duration of an approval granted under this section, howsoever extended or varied, shall not exceed the duration of three months.”.
I move amendment No. 26:
In page 15, between lines 30 and 31, to insert the following: “(2) In making an application under subsection (1), the member shall have regard to the necessity and proportionality of the measure pursuant to an order under this section, taking into account the impact of such on the fundamental rights of individuals.”.
Before I read out the question, I welcome members of the Irish Foster Care Association who are here today and are guests of Senator Malcolm Byrne. I also welcome guests of Senator Keogan from Duleek. They do a lot community work and are involved in Daffodil Day and supporting the Irish Hospice Foundation. I thank them for their work and for coming to Seanad Éireann today.
Catherine Ardagh, Niall Blaney, Malcolm Byrne, Pat Casey, Lisa Chambers, Martin Conway, Ollie Crowe, John Cummins, Paul Daly, Aidan Davitt, Regina Doherty, Mary Fitzpatrick, Robbie Gallagher, Gerry Horkan, Seán Kyne, John McGahon, Erin McGreehan, Fiona O'Loughlin, Joe O'Reilly, Pauline O'Reilly, Diarmuid Wilson.
Catherine Ardagh, Niall Blaney, Malcolm Byrne, Micheál Carrigy, Pat Casey, Lisa Chambers, Ollie Crowe, John Cummins, Paul Daly, Aidan Davitt, Regina Doherty, Timmy Dooley, Mary Fitzpatrick, Robbie Gallagher, Gerry Horkan, Seán Kyne, Tim Lombard, John McGahon, Erin McGreehan, Fiona O'Loughlin, Joe O'Reilly, Pauline O'Reilly, Ned O'Sullivan, Diarmuid Wilson.
Catherine Ardagh, Niall Blaney, Malcolm Byrne, Micheál Carrigy, Pat Casey, Lisa Chambers, Martin Conway, Ollie Crowe, John Cummins, Paul Daly, Aidan Davitt, Regina Doherty, Timmy Dooley, Mary Fitzpatrick, Robbie Gallagher, Gerry Horkan, Seán Kyne, Tim Lombard, John McGahon, Erin McGreehan, Fiona O'Loughlin, Joe O'Reilly, Pauline O'Reilly, Ned O'Sullivan, Diarmuid Wilson.
Government amendments Nos. 41 to 43, inclusive, 46 to 49, inclusive, 52, 54 to 56, inclusive, 58 to 60, inclusive, 62 to 69, inclusive, and 78 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 44:
In page 21, line 19, after "the" where it firstly occurs to insert "technological specifications,".
Here goes. Everyone should fasten their seatbelts. The Bill provides that the Garda and local authorities can apply to the Garda Commissioner for approval for CCTV in public places. This amendment seeks to insert a safeguard in the Bill that would make it mandatory for a member of the Garda to state the technological and software specifications of cameras to be used when they are applying for a CCTV scheme in a public place.
Amendment No. 50, separately, makes the same provision in regard to applications made by local authorities for CCTV schemes in their area. Not all CCTV cameras work in the same way and not all software that is used to gather, process or analyse recorded visual data does this in the same way. It is important that the Commissioner would know exactly what a particular camera is capable of before he or she would authorise its use. I frequently feel the same when I buy a mobile phone.
On Committee Stage the Minister advised that it would be at the Commissioner's discretion as to whether or not the technical and software specifications shall be included in the application process. I think it is simply too important a matter to be left to the Commissioner of the day, in particular when technological developments advance as rapidly as they do in contemporary life. Facial recognition and AI are technological developments that we would have found hard to comprehend a number of years ago but that have both already become deeply ingrained in our day to day life.
This amendment has not gone into any great detail about the types of technology or software that should be permitted or not within a scheme. It simply says that the Commissioner should be furnished with information about what the cameras within a scheme are capable of. I think it is a modest amendment but an important safeguard and I hope the Minister of State will accept it.
Amendment No. 45 seeks that the following text would be inserted in the Bill between lines 20 and 21: "state the means by which the public and local residents will be appropriately notified of the use of cameras and their relevant rights".
To reiterate the importance of this amendment in respect of CCTV schemes, when CCTV is introduced in a particular area it is often in proximity to homes, schools and local shops, etc. A person living in the area becomes subject to daily surveillance as they drop their kids to school, go to do their shopping, etc. The least that would be expected from the State in this regard is that when such intrusive surveillance is introduced into an area that those living in the area are given proper notice of their privacy rights and the extent of the surveillance that is being carried out, for example, by being shown a map of the cameras in the area. Whether this is done via a public meeting, a notice board or online we have left to the discretion of the Minister. The amendment is not prescriptive in that regard but it is a matter of respect to communities that they should be properly informed when the State chooses to introduce daily surveillance into their lives, which affects their lives.
Amendment No. 50 seeks to insert: "In page 22, line 16, after "the" where it firstly occurs to insert "technological specifications,"." As noted, this amendment has similar intent to amendment No. 44 but relates specifically to applications by local authorities for authorisation for CCTV in public places. Any application for authorisation should outline the precise technological and software capabilities of the cameras to be used for the reasons to which I have already spoken.
Amendment No. 51 would insert the following text: "state the means by which the public and local residents will be appropriately notified of the use of cameras and their relevant rights" between lines 17 and 18 on page 22. There is no need for me to speak to any degree on this amendment as it is identical to amendment No. 45, except that it relates to the CCTV schemes of local authorities. I again reiterate the importance of respect for communities and of making sure that they are adequately informed about surveillance which impacts them.
It will be a matter for the Garda Commissioner to specify whether the technical and software specifications are included in the application process. I direct the Senator to sections 27(2)(d) and 28(2)(e) of the Bill. Further details of the requirements for community CCTV will be published in a code of practice for both Garda and local authority schemes.
I would highlight to Senators Ruane and Flynn that where amendments are made to CCTV under an authorisation, for example, if additional cameras are included, if the technology or camera results in significant additional processing or if the coverage of the CCTV is authored, there is a requirement to notify the Garda Commissioner and to provide any data impact assessment to him or her.
It will also be an offence to fail to notify the Garda Commissioner of the amendments specified in section 31(1), and, in the case that a new authorisation is required, to fail to comply with the requirements of section 31(5). The changes to the CCTV schemes arose as a result of concerns from the Data Protection Commission over the administration of CCTV schemes. The changes to the schemes are significant and reflect the need to provide clear standards for how CCTV should operate, particularly since the coming into force of the general data protection regulation and law enforcement directive.
I cannot accept these amendments. With regard to amendments Nos. 45 and 51, the Data Protection Act 2018 and any provisions therein relevant to the use of CCTV apply in this regard. Further details around the application process and requirements of such schemes will be made available in a code of practice. As such, I cannot accept these amendments either.
Catherine Ardagh, Niall Blaney, Micheál Carrigy, Pat Casey, Shane Cassells, Lisa Chambers, Ollie Crowe, John Cummins, Emer Currie, Paul Daly, Aidan Davitt, Timmy Dooley, Mary Fitzpatrick, Robbie Gallagher, Gerry Horkan, Seán Kyne, John McGahon, Erin McGreehan, Joe O'Reilly, Pauline O'Reilly, Ned O'Sullivan, Barry Ward, Diarmuid Wilson.
I move amendment No. 45:
In page 21, between lines 20 and 21, to insert the following: “(c) state the means by which the public and local residents will be appropriately notified of the use of cameras and their relevant rights,”.
Catherine Ardagh, Niall Blaney, Micheál Carrigy, Pat Casey, Shane Cassells, Ollie Crowe, John Cummins, Emer Currie, Paul Daly, Aidan Davitt, Timmy Dooley, Mary Fitzpatrick, Robbie Gallagher, Gerry Horkan, Seán Kyne, Tim Lombard, John McGahon, Erin McGreehan, Joe O'Reilly, Pauline O'Reilly, Ned O'Sullivan, Barry Ward, Diarmuid Wilson.
Catherine Ardagh, Niall Blaney, Pat Casey, Shane Cassells, Martin Conway, Ollie Crowe, John Cummins, Paul Daly, Aidan Davitt, Timmy Dooley, Mary Fitzpatrick, Robbie Gallagher, Gerry Horkan, Seán Kyne, Tim Lombard, John McGahon, Erin McGreehan, Joe O'Reilly, Pauline O'Reilly, Ned O'Sullivan, Diarmuid Wilson.