Criminal Justice (Surveillance) Bill 2009
Second Stage
Senator Ivana Bacik: I welcome the Minister of State and the opportunity to debate this
important Bill, which was prompted by a change in the climate in which we view criminal justice legislation, a change that was largely a result of horrific, so-called gangland killings. Somehow, that phrase sensationalises them and is not the best that could be used, but we are all reminded of the horrific killings of Shane Geoghegan, Roy Collins and others. For this reason, the Bill has received a broad welcome, in which I share. The Bill also marks a change in the Garda’s attitude. As the Minister of State mentioned, the Garda previously did not necessarily want the power to use the product of bugged conversations in court, as it would have exposed their investigatory techniques. This has been alluded to by other speakers.
It is important that, for the first time, covert surveillance will be placed within a statutory framework. I welcome section 3 in particular, since it provides that surveillance would only be carried out by gardaí, members of the Defence Forces or Revenue officers in accordance with valid authorisations or approvals. This is an important and necessary safeguard against the arbitrary use or abuse of such surveillance techniques. It is important to note the Bill does not apply just to the Garda, as it also applies to the Defence Forces and Revenue, a point to which I will revert.
The other core provision, as has been stated, is section 14, which provides for the admissibility of evidence obtained through surveillance carried out in accordance with an authorisation or approval. I should declare an interest in that I am a criminal lawyer. Speaking as such, section 14 is interesting, as it represents the first statutory attempt in a Government Bill to place in a legislative form the principles that have been developed through extensive case law on the admissibility of evidence on foot of search warrants where the warrants are in some way defective. Recently, I carried out some work on case law in this respect. I would be interested to know how the courts will interpret section 14. Inevitably, there will be some conflict with some of the case law, given the Kenny and O’Brien cases. More certainty is necessary, but the section is welcome.
My concerns about the Bill derive primarily from the case law that has evolved around search warrants. The right to privacy has been mentioned by others, including the Irish Council for Civil Liberties, ICCL. We must bear this important right in mind when considering the granting of powers to conduct surveillance. Another constitutional right will be as important or even more so in the case law that will evolve from the Bill, namely, the inviolability of the dwelling under Article 40.5. The provisions that carry the most potential for abuse of citizens’ rights are those that provide for the right of members of the Garda, Defence Forces and Revenue to enter anywhere to plant and remove bugs. I am considering subsection 5(7) in particular, which allows entry by force, if necessary, to any place, including a dwelling, for the purposes of carrying out surveillance and withdrawing a device without a person’s consent. There is extensive case law on when a judge — it is usually a judge — can issue a search warrant to a garda to enter a dwelling or other place. Generally, the case law provides that there must be safeguards in place to ensure that search warrants would only be granted when due process has been observed.
Legislative provisions allow senior gardaı´ to issue warrants. Interestingly, a provision in the Criminal Justice Act 2006 that would have extended a general power to issue search warrants to Garda superintendents was withdrawn by the Minister on Report Stage. The Act, when initiated, had allowed for a Garda superintendent to issue a search warrant in respect of any arrestable offence in circumstances of urgency. This would have been innovative because the current provisions allowing the power for senior gardaí´ to issue search warrants arise from specific types of offence, such as drug trafficking or offences against the State under the Offences Against the State Acts. Senior gardaí´ do not have a general power to issue search warrants, even in circumstances of urgency, for arrestable offences.
I am slightly concerned by the Bill. Sections 4 and 5 provide an important procedure whereby a District Court judge can issue authorisations for surveillance for up to three months. The procedures and criteria set out for the judge are proper. Of more concern are sections 7 and 8, which allow for the approval of surveillance by superior officers in the Garda, Defence Forces or Revenue in respect of any arrestable offence. Although the Bill has been prompted by concerns about gang crime, it applies to all arrestable offences. Sections 7 and 8 provide for surveillance devices to be granted, withdrawn and so on and for homes to be entered without authorisation, by District Court judges but on approval of superior officers. I understand and appreciate that, in circumstances of urgency, it may be necessary to make such a provision. Section 7 is specifically titled, “Approval for surveillance in cases of urgency”. Subsection 7(2) provides criteria regarding the conditions that must apply before a superior officer, a superintendent or above in respect of the Garda, can give approval. We should focus attention in this area to ensure abuses do not occur. I will table amendments in this regard, as approvals can apply for up to 72 hours, which might be too long. Getting a District Court judge to issue an authorisation should be possible within 24 hours. I am concerned about non-judicial approval. We should also consider the matter of principal officers in Revenue being able to approve the use of such devices.
Of even more concern is section 8 on tracking devices rather than surveillance devices. It does not allow for the taking of content of conversations. Rather, it allows for entry into a home to place or remove a tracking device on the approval of a superior officer without any requirement that there be a condition of urgency. This seems like an omission and I will table an amendment to suggest the same conditions that apply in section 7 should apply in section 8 before a superior officer could approve such surveillance.
I do not mean to take away from my overall welcome of the Bill, but I wish to ensure it is water tight, which is an important issue for everyone concerned with the prevention of crime and any more horrific killings. We must ensure that safeguards are in place. Previously, people’s homes were bugged illegally in the interests of so-called State security. We all want to guard against a recurrence. With these concerns in mind, I make my comments and give a cautious, broad welcome to the Bill. I urge caution in respect of some of its provisions, particular sections 7 and 8.
Will the Minister of State consider them? We will have a chance to debate them
Committee and Remaining Stages (2nd July, 2009).
Senator Ivana Bacik: I thank the Leas-Chathaoirleach for allowing me to speak and I apologise for not speaking earlier on the Bill. I support Senator Regan’s amendment. I heard the Minister of State’s reply but, given the level of power we grant to superior officers in sections 7 and 8 of this Bill, it is critical we ensure there is a sufficient level of safeguard present to ensure there is no abuse of the power of surveillance.
As I stated on Second Stage, I broadly welcome the Bill. Section 3, in particular, sets out a very important principle to which we shall come. However, it is vital to ensure we do not create powers that are so wide they may be abused. We can all think of instances where covert surveillance powers used by the State might be abused. Senator Regan’s amendment would ensure an extra level of safeguard would be in place in that it would require a chief superintendent rather than a superintendent to authorise the placing of tracking devices under section 8 or, in circumstances of urgency, to authorise surveillance under section 7. That is particularly important.
We have seen a great deal of case law emerging on search warrant provisions and provisions in different pieces of legislation that allow searches to be carried out and search warrants to be issued, usually by a chief superintendent. There have been a large number of challenges on the basis of the exercise of these powers by superior officers in the Garda. We must be wary about allowing too broad a power to superior officers in this legislation. I absolutely support Senator Regan’s amendment and believe it would strengthen the Bill, as my amendments seek to do at a later stage.
I apologise for trespassing again. I wish to make one specific point to the Minister of State that I raised on Second Stage. I mentioned we already have powers to issue search warrants and have provided for superior officers in certain legislation, in respect of urgent circumstances, and so on. It is interesting that in 2006 the Criminal Justice Bill, as it then was, in what I believe was its original 2004 format, sought in its section 5 to extend a general power to Garda superintendents to issue search warrants in respect of all arrestable offences. There was a good deal of outcry about extending that general power, not only in the context of specific offences such as drug trafficking or offences against the State, but, as this Bill would do, to all arrestable offences.
Regarding section 5, I checked extensively through the Dáil debates and, as far as I can see, this provision was withdrawn by the Minister on Report Stage in 2006. The final version of the Criminal Justice Act 2006 does not allow for the issuing by Garda superintendents of search warrants. I am concerned that in that context perhaps we are giving too much power to Garda superintendents in this legislation. There is not only the power to have surveillance going on, about which arguments have been made in respect of breach of the right to privacy, but also the power to authorise entry to homes, which particularly concerns me. “Place” in the Bill includes a dwelling and thereby allows the power to authorise entry to people’s homes in order to place or withdraw tracking or surveillance devices. That is an extremely powerful weapon, as one might term it, in the armoury of State investigation of potential offences. I urge that we be cautious and ensure there are sufficient safeguards in place and that the inviolability of citizens’ dwellings will not be unduly breached, particularly under sections 7 and 8 where no judicial authorisation is required. This is also Senator Regan’s concern, in that superintendents should not have too broad a power where there is no judicial authorisation. In light of the withdrawal by a former Minister of the proposed section 5 of what is now the Criminal Justice Act 2006, why is such a broad power for superintendents included in this Bill?
(Question proposed: “That section 3 stand part of the Bill.”)
Senator Ivana Bacik: As I stated on Second Stage, I support the prohibition on carrying out surveillance except in accordance with a valid authorisation or an approval. This is an important cornerstone of the Bill and is one of the reasons for which the legislation has received a broad welcome from civil liberties groups. It states that surveillance shall only be carried out in accordance with the procedures set out in the Bill. I do not want to be on record as only objecting to aspects of the Bill. I welcome this provision, since it sets out in a concise way a statutory framework for the carrying out of covert surveillance.
…I agree with Senator Regan, in that a specific purpose of this kind would be useful, particularly as the legislation is being introduced with the express purpose of dealing with organised crime. I told the Senator that I am not sure about whether the word “gangland” is the most appropriate for use in criminal legislation. We all know what it means, but it has a tabloid or, unfortunately, sensationalising effect, despite the grubby and sordid nature of the crime, which has led to dreadful and tragic deaths. A specific purpose to investigate and-or gather intelligence on organised crime, a better way of putting it, would be useful because this is the political reason for the legislation’s introduction.
The practice in the Criminal Justice Acts 2006 and 2007 of using valid and justified concerns about organised crime to widen nets is unfortunate, as laws that have changed criminal procedures for all types of offence have been introduced. Under this Bill, arrestable offences are not confined to organised or gang crime only. The criminal courts are showing flaws in the 2006 and 2007 legislation. We must be cautious about the scope of legislation such as this Bill being overly broad. In terms of gangland or organised crime, a more specific purpose would be helpful for the Garda, since investigating and-or gathering intelligence on that type of crime is what the Bill was meant to be concerned with.
(Amendment put and declared lost.)
(Question proposed: “That section 4 stand part of the Bill.”)
Senator Ivana Bacik: Broad purposes are provided in section 4(1). It is a critical section because it provides for the application for authorisation to a judge. The purpose for which the application may be made is broad, namely, “as part of an operation or investigation being conducted by the Garda Síochána concerning an arrestable offence” or “preventing the commission of arrestable offences”.
I wish to address the broader purpose outlined in section 4(1)(c) on surveillance being sought to be authorised, namely, “maintaining the security of the State”. This is also provided for under section 4(2) in respect of superior officers in the Defence Forces. I wish to put on record the necessity of ensuring judicial authorisation where such a sensitive purpose is cited as the reason for seeking authorisation for surveillance devices. We are all familiar with the history of the use of political bugging, and not just in this country. In the well known Kennedy case, the right to privacy was discussed by the courts in the context of bugging. In
