Garda Recording Devices
Overview
The main purpose of the Garda Síochána (Recording Devices) Act is to provide a robust statutory framework for An Garda Síochána to use digital recording devices to support their key functions, such as the investigation, detection, prevention and prosecution of criminal offences, safeguarding against and preventing threats to public safety and public order, and in matters relating to the security of the State. This includes the use of body- worn cameras by the Garda Síochána as recommended in the Report of the Commission of the Future of Policing in Ireland (COFPI).
The Act repeals and replaces the CCTV provisions contained in the Garda Síochána Act, 2005. It sets out how CCTV schemes should be managed to reflect changes in the law on foot of the introduction of the General Data Protection Regulation and the Law Enforcement Directive. This gives greater clarity in relation to the roles and responsibilities of both An Garda Síochána and Local Authorities in CCTV schemes.
The Act provides a statutory basis for the expanded use of Automatic Number Plate Recognition (ANPR) technology. It allows the Minister to designate other bodies that have networks of ANPR cameras as bodies who may transfer their ANPR records to An Garda Síochána.
The Act contains provisions for An Garda Síochána to access Third Party CCTV. This allows for judicial authorisation for any access to live feeds, and it permits An Garda Síochána to approve access internally for a period of up to 72 hours. It also provides for access to data retained by third parties as a result of the operation of CCTV.
The Act addresses the recommendations of the Fennelly Commission of Investigation in relation to the recording of calls to or from the Garda Síochána. The Act will provide a statutory basis for the recording of 999 calls which are transferred to the Gardaí, and for the recording of other emergency and non-emergency lines or numbers that will be specified in, and governed by, a code of practice.
The Act provides for the installation and operation of CCTV on Garda premises. This provides an updated legal basis for the installation and operation of CCTV on their premises for the purpose of safeguarding persons or property and for the prevention, detection, investigation and prosecution of offences.
The powers in this Act must be subject to sufficient controls and oversight to ensure their use is necessary and proportionate at all times as there are potential implications for the right to privacy and for the data protection rights of individuals. The Act provides for various codes of practice to be prepared for certain parts of the Act, including requirements to conduct data protection impact assessments and human rights assessments prior to the deployment of any of the measures.
A “recording device” is defined to include devices capable of recording or processing records created under this Act. It also includes devices which are affixed to a vehicle or structure which means that recording from helicopters, other aircraft and drones are provided for. The definition of a “member of Garda personnel” includes both members of An Garda Síochána and civilian staff of the organisation.
Existing CCTV schemes that have an authorisation under section 38 of the Garda Síochána Act 2005 can continue for a period of up to 4 years.
Part 2 does not apply to recording devices operated for the purposes of CCTV or ANPR.
Garda Recording Device
The 2023 Act provides a power for a member of Garda personnel to operate a recording device, or cause a recording device to be operated. The provisions sets out where the operating device may be operated, and includes where the recording device is remotely controlled or attached to an animal.
The operation of a recording device is to be necessary and proportionate to the purposes set out. There is a presumption that the operation of the device will be deemed to be necessary and proportionate if its operation is in line with an applicable Code of Practice.
Subject to the additional provisions relating to body worn cameras, the operation of a recording device must be, as far as practical, overt, and that where a recording device is being operated in a dwelling, a member of Garda personnel must, where appropriate, notify the occupants at the start and record the notification. Where operating a body-worn camera, the body worn camera will be visible on the clothing, uniform or headgear, or on the clothing, uniform or headgear of an animal, and will have a visible indicator showing when it is being operated.
There is a a range of offences relating to falsification or destruction of records or devices. There are penalties upon conviction for an offence under this section, which are on summary conviction, a class A fine, or a term of imprisonment not exceeding 12 months or both, or on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years or both.
Automatic Number Plate Recognition
“ANPR data” includes ANPR records created by Garda personnel and ANPR records created by relevant bodies that are transferred to An Garda Síochána. The Act lists a number of relevant bodies that have ANPR networks that are of strategic interest to An Garda Síochána.
The Act sets out the purposes for which ANPR can be utilised by a member of Garda personnel. The utilisation of ANPR is defined to include both the recording and processing of ANPR records.
The Minister may, after consulting with the Data Protection Commission and the body concerned, designate a body as a relevant body under this Part where he or she is satisfied that the disclosure of the ANPR data is necessary and proportionate to the purposes specified and the body has adequate data safeguards in place. There is a power for a relevant body to disclose relevant data to the Garda Síochána. It sets out the content of a data sharing agreement to be agreed between An Garda Síochána and the relevant body, and ensures that a review of the operation of the data sharing agreement is conducted not more than 3 years from the date of the agreement or from the date of any review.
ANPR data may be used to monitor the movement of a vehicle, called focussed monitoring, if its use has been approved by a member of the Garda Síochána not below the rank of superintendent or if it has been authorised by a judge of the District Court. Focussed monitoring may be approved where an investigation relates to an arrestable offence, or a matter relating to the security of the State and where it is reasonably believed that a vehicle is connected to one or more of these matters.
ANPR Procedure
The approving officer has to be independent of the investigation or matter for which the application is being made, and must be satisfied that the use is necessary and proportionate to the purpose of the investigation or matter set out. The approving officer may only allow focussed monitoring for a period up to 3 months and may include terms and conditions to their approval if they consider it appropriate.
There are provisions relating to the continued focussed monitoring of a vehicle beyond 3 months. If a member of the Garda Síochána not below the rank of superintendent believes that further monitoring is justified for the purposes of investigating an arrestable offence or a matter relating to the security of the State, they can make an application to the judge of the Dublin Metropolitan District Court before the expiry of that period, for an authorisation to continue to use ANPR data for that purpose. If the District Court judge is satisfied that it is justified to do so, they will issue an authorisation for a period that will not exceed 3 months from its date of issue. Provision is made for the variation of an authorisation by the judge, and renewals which must be applied for before their expiry date.
In order to search retained ANPR data, a member of Garda personnel must make an application to a member of the Garda Síochána of a rank not below sergeant, or higher, as specified in a Code of Practice. It also sets out that the person to whom the application is made, must be independent of the purpose to which the application relates.
The reasons that the member of Garda Síochána to whom the application is made, can approve the search of retained ANPR data, are provided for .This includes that the search is necessary and proportionate to the purposes set out.
There are range of offences relating to falsification or destruction of records or devices. There are e penalties upon conviction for an offence which are on summary conviction, a class A fine, or a term of imprisonment not exceeding 12 months or both, or on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years or both.
Lines & Numbers
The 2023 Act sets out the types of lines or numbers, which may be designated by the Garda Commissioner as lines or numbers that may be recorded, and the purposes for which a designation may be made. Such designations can include emergency and non-emergency calls and will be in accordance with an applicable Code of Practice.
An Garda Síochána may process data from recordings made for the purposes set out and in accordance with an applicable code of practice.
CCTV in Public Place
A person must not install or operate CCTV for the sole or primary purpose of recording in a public place for the purposes set out, without an authorisation issued under the Garda Síochána (Recording Devices) Act. It provides that an authorisation can only be given to a member of Garda personnel, or to a local authority in accordance with Section 25 or Section 26 respectively.
The Act sets out the purposes for which a member of Garda personnel may apply for authorisation to the Garda Commissioner and the information that should be included in any application, which will be governed by a Code of Practice. It provides for the Garda Commissioner to give an authorisation if satisfied that the installation or operation of CCTV is necessary and proportionate to the purposes specified, and is in accordance with the application information set out, for a period of no more than 5 years.
It also provides for the Garda Commissioner to include terms and conditions on the authorisation if he or she considers it necessary. A data protection impact assessment must be carried out.
Authorisation to Local Authority
The 2023Act sets out the purposes for which a local authority may apply for authorisation to the Garda Commissioner, and information that should be included in any application which will be governed by a Code of Practice. It provides for the Garda Commissioner to give an authorisation if satisfied that the installation or operation of CCTV is necessary and proportionate to the purposes specified in this section, is in accordance with the application information set out, and is satisfied that the local authority has consulted with the joint policing committee for the administrative area.
The local authority must agree to give access at all times to the CCTV to members of Garda personnel, that the CCTV will at all times comply with technical specifications that may be issued by the Commissioner and that it is installed and operated in accordance with a Code of Practice.
There are requirements for persons installing or operating CCTV on behalf of a member of Garda Síochána or a local authority to whom an authorisation has been given. It binds them to the terms of the authorisation and specifies what they must do before they install or operate CCTV, namely, have fulfilled criteria detailed by the Garda Commissioner in an applicable Code of Practice, entered into a contract with the party to whom the authorisation was granted, and entered into an agreement relating to the processing of data with either the Commissioner or the local authority.
Authorisation
An authorisation expires on the date specified on the authorisation, and the person to whom the authorisation was granted must terminate or cause the termination of the operation the CCTV to which the authorisation relates. If a person wishes to continue operation or installation of the CCTV to which the authorisation relates, then they must apply for a new authorisation. If a new application is made, this section also provides that the existing authorisation will be deemed to not have expired until the decision on the new application is made.
Where an authorisation has been given, the Garda Commissioner must be informed of the types of amendments or additions set out. When the Garda Commissioner is being informed of these amendments or additions, any data protection impact assessment conducted must also be provided to him or her. The Garda Commissioner can decide to either modify an existing authorisation or issue a direction requiring the person to make a new application for an authorisation. An authorisation will expire if amendments or additions are made without the relevant modified authorisation or new authorisation.
There are circumstances under which the Garda Commissioner may revoke authorisations. A member of Garda Síochána not below the rank of chief superintendent may issue directions to a person to whom an authorisation has been granted under this Part and that person must comply with it.
CCTV Regulation
It is an offence for a person to install or operate or cause the installation or operation of CCTV for the purposes set out) without an authorisation. It is an offence for any person without reasonable excuse, to fail to comply with the provisions. There is a range of offences relating to falsification or destruction of records or devices.
It is an offence to induce, coerce, threaten or request a Garda to act contrary to the provisions. The penalties upon conviction for an offence under this section are, on summary conviction, a class A fine, or a term of imprisonment not exceeding 12 months or both, or on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years or both.
Part 6 of the 2023 Act does not apply to the processing of CCTV, including the processing of live feeds of CCTV operated by, or on behalf of, a local authority under Part 5. There is a power for a member of Garda personnel to process live feeds of third-party CCTV only in accordance with an authorisation given by a District Court judge or an approval granted under Section 39 by a superior officer. Provisions for variations of authorisations are also included.
CCTV Procedure
A superior officer may make an application to the judge of the District Court for authorisation to process live feeds of third-party CCTV if there are reasonable grounds for believing that such processing for the purposes listed is required.
The application to the judge of the District Court, will be made to the District Court in which the cameras are situated, on notice to the third party concerned, and heard otherwise than in public. A judge will grant an authorisation where he or she is satisfied by the information provided on oath by the superior officer.
The information on oath specifying the grounds for the superior officer’s belief that the authorisation is necessary for any of the statutory purposes, does not need to contain a particular offence for which it is being sought. The judge to impose conditions on the authorisation they may consider appropriate to the processing. There is to be an expiry date which the judge will fix, which can be no longer than 6 months from the day it is issued.
A superior officer to apply to the District Court to vary or renew an authorisation. A renewal of an authorisation cannot exceed a 6 month period and a renewal application must be made before the authorisation has expired. Where an authorisation expires before the application is determined, it will be deemed to not expire until the application has been determined.
Temporary Authorisation
A member of Garda personnel may apply to an independent superior officer, to process live feed of third-party CCTV for up to 72 hours for one or more of the purposes set out. There are considerations for the superior officer in approving an application. It allows for conditions to be attached, and provides that the approval will be provided to the third party before processing happens. It allows for the approval to be varied if necessary.
It provides that where a superior officer wishes to extend the time-period for access, they must apply to the District Court judge before the approval expires.
Where a member of Garda personnel processes live feeds under this section, they will be required to furnish a report, with the details specified to a chief superintendent within 7 days of the end of the processing.
Where a member of Garda personnel requests data from a third party which has been obtained as a result of the operation of CCTV and retained by the third party, then the third party must provide that data to the member of Garda personnel with 7 days of the date of the request. It also sets out the purposes for which a member of Garda personnel may request data and that such a request shall be necessary and proportionate with regard to the purposes set out. There are various offences and penalties.
CCTV in Garda Síochána Premises
The Garda Commissioner may authorise the installation or operation of CCTV in or around Garda premises for the principal purpose of safeguarding persons or property, or for the prevention, investigation, detection, or prosecution of criminal offences. This power can be delegated to a member of Garda personnel not below the rank of chief superintendent, or principal officer grade. Garda premises include temporary structures, including premises or structures being used on a temporary basis, or any part thereof, that the Garda Síochána are using for the performance of their functions.
Codes of Practice
A code or codes of practice must be drawn up by the Garda Commissioner having regard to the operation of, and any associated procedures or agreements in respect of Parts 2 to 6. It also provides what a code or codes of practice must incorporate. This includes provisions relating to the procedures to be followed, and provisions relating to confidentiality, security, storage, access and retention.
The stakeholders with whom the Garda Commissioner must consult and the information that must be provided to them. The information comprises of a draft code of practice, the results of any data protection impact assessments, and the results of any assessment of the impact of the human rights of an individual. The draft code must also be published on the Garda website for a period to be determined by the Garda Commissioner to allow persons to make written representations in respect of the draft code. The Garda Commissioner may also consult with any other persons he or she deems appropriate and may amend the code as a result of the consultations.
Once a draft code of practice is submitted to him or her, the Minister may declare it a code of practice for the purpose of the Act by order. The text of the code of practice will be set out in the order. Provision is made for the Garda Commissioner to review a code of practice at least every 5 years from the date of the order, or from the previous review.
The Garda Commissioner may submit further codes of practice to the Minister to amend, revoke, or replace of a code of practice. The provisions of this section applies to all draft codes submitted to the Minister, including where it is for amendment, revocation of a code or replacement of a code.
All reasonable steps are to be taken by the Commissiomer to bring the codes of practice, or any amendments of the codes, which are the subject of an order, to the attention of Garda personnel.
Admissibility of Evidence
Documents obtained under the Act may be used in civil and criminal proceedings, and in disciplinary actions so defined. The Act shall not prejudice the admissibility of recordings or documents obtained other than under the Act. It provides that a breach of procedures or a failure to fulfil particular statutory requirements will not, of itself, mean that the documents in question must be excluded from evidence, subject to the discretionary power of the courts to exclude evidence.
There are certain presumptions in respect of a recording device operated in accordance with this Act and in relation to the signature of a member on an authorisation, designation, approval, produced in proceedings under this Act.
The 2023 Act provides for the judge to make regular reports to the Taoiseach on matters relating to the operation of these Parts. Such reports will be laid before both Houses of the Oireachtas and the Taoiseach may exclude certain matters from those reports which may be prejudicial to the security of the State.