Surveillance

Criminal Justice (Surveillance)  Act 2009

The main purpose of the Act is to buttress the work of the Garda Siochana, the Defence Forces and the Revenue Commissioners in the prevention and detection of serious crime and in safeguarding the security of the State against subversion and terrorism. In regulating this area by law, the Act ensures that any possible legal obstacles to the admissibility of such material in criminal trials are removed in cases involving arrestable offences.

The Act applies to the Garda Siochana, the Defence Forces and the Revenue Commissioners. They are to carry out surveillance only in accordance with the provisions of the Act .

A key provision in the Act deals with the admissibility of evidence gained by surveillance. There are to be written records in all cases where surveillance is used. In most cases a prior authorisation for surveillance from the District Court is required.

Authorisations

Authorisations may be for a period of up to 3 months and are renewable on application. It is possible in cases of urgency to undertake surveillance without an authorisation from the Court for a period of up to 72 hours, subject to conditions.

The use of tracking devices is also regulated by the Act and is subject to prior written approval by a superior officer. Provision is also made in the Act for a judicial mechanism for dealing with complaints, and for separate oversight of the operation of the Act by a judge of the High Court.

Only members/officers of a sufficiently high level in each of the agencies concerned may apply to the District Court for authorisations, on the basis of strict criteria. In each case, reasonable grounds must exist also for believing that the surveillance sought to be approved is the least intrusive means available, is proportionate from a rights perspective, and is for a period which is limited to its objectives.

Application

An authorisation may be applied for to a District Court Judge on oath on an ex parte basis in private. The authorisation is to be in writing and contain the relevant details set out.An authorisation shall be in writing and shall specify—

• particulars of the surveillance device that is authorised to be used,
• the person who, or the place or thing that, is to be the subject of the surveillance,
• the name of the superior officer to whom it is issued,
• the conditions (if any) subject to which the authorisation is issued, and
• the date of expiry of the authorisation.

It is valid for a period of up to 3 months, which is renewable or variable. It may allow the authorised member/officer, accompanied
if necessary by any other person to gain entry to property for the purposes of surveillance. This may involve the use of such reasonable force as is necessary in the particular circumstances.

Officer Authorisation

Where time is of the essence and the matter is urgent to prevent a person absconding to avoid justice, the possible destruction of evidence, or where the security of the State would likely be compromised. In such a case, a superior officer, as defined, in the relevant agency may give approval for surveillance on grounds connected with the issuing of an authorisation for a limited operational period of up to 72 hours.

If continued surveillance is required, an authorisation will have to be obtained from a judge of the District Court. Written records must be kept and reports must be made by the parties involved.

Tracking Devices

There are internal approvals for the use of tracking devices for a maximum period of 4 months.The Minister for Justice, Equality and Law Reform may, in the interests of privacy and other rights, make Regulations prescribing a period of less than 4 months for the use of tracking devices, or for different periods for different purposes.

Judicial authorisations are not required for their use, but the approval of a superior officer is necessary based on the strict qualifying criteria set out in
the Act . The Act requires that written records and reports have to be maintained in these cases.

A member or officer may apply to a superior officer for the grant of an approval to use a tracking device if he or she believes on reasonable grounds that that conditions equivalent to those above apply, and surveillance is justified having regard to specified matters but that the use of a tracking device would be sufficient for obtaining the information or evidence in the circumstances concerned, and the information or evidence sought could reasonably be obtained by the use of a tracking device for a specified period that is as short as is practicable to allow the information or evidence to be obtained.

A superior officer to whom an application is made shall approve such use of a tracking device as he or she considers appropriate, having regard to the information in the application, if he or she is satisfied that there are reasonable grounds for believing that an authorisation and that the conditions specified apply.

An approval may be granted subject to conditions, including as to the duration of the use of the tracking device. An approval permits the member or officer concerned, accompanied by any other person whom he or she considers necessary, to place the tracking device and remove it at the end of its use, without the consent of a person who owns or is in charge of the vehicle or thing on which it is placed.

There are retention periods for all official documents relating to authorisations for surveillance, reports, written records of approval sanctioning surveillance in urgent cases, the use of tracking devices and surveillance.

The Minister for Justice, Equality and Law Reform may, in the interests of privacy and other rights, make Regulations prescribing a period of less than 4 months for the use of tracking devices, or for different periods for different purposes.

Complaints & Contravention

There is a procedure for dealing with complaints where a person believes that they may be the subject of surveillance. In such cases, the matter will be dealt with by a Complaints Referee who is the judge of the Circuit Court who handles similar issues arising from the operation of the telephone interception legislation

Where there has been a contravention of a provision of the Act , the Referee has the power to recommend payment of compensation up to €5,000. The matter may also be referred to the Garda Siochana Ombudsman
Commission, the Minister for Defence or the Minister for Finance depending on the particular State agency concerned.

Operation of Act

There is provision in relation to the appointment of a judge of the High Court to oversee the operation of the main provisions of the Act and to make regular reports to the Taoiseach in the matter. Such reports will be laid before both Houses of the Oireachtas.

The disclosure of any information about the operation of the Act is prohibited , unless it is made to an authorised person, as defined, and it is connected with specified criteria. This applies both to members/officers of the agencies concerned, as well as to persons engaged on contract work. It also applies to persons generally.

There must be secure storage of, and authorised access to, information and documents generated as a result of the carrying out of surveillance, to protect privacy and other rights. The Minister for Justice, Equality and Law Reform in the case of the Garda Siochana, the Minister for Defence in the case of the Defence Forces and the Minister for Finance in the case of the Revenue Commissioners may make Regulations in this regard insofar as their respective functional areas are concerned.

Admissible Evidence

Evidence obtained by means of surveillance under the Act is admissible.It is admission,notwithstanding any error or omission on the face of authorisation or a written record of approval, or notwithstanding any failure by any member/officer to comply with a requirement of an authorisation or written record, is admissible in certain clearly defined circumstances.

In effect, this means that a breach of statute-based procedures or a failure to fulfil particular statutory requirements does not, of themselves, mean that the material in question must be excluded.

Disclosure of information about surveillance in proceedings by means of discovery or otherwise shall not be made unless a Court authorises otherwise.

Regulations

The Minister for Justice, Equality and Law Reform, the Minister for Defence and the Minister for Finance may make Regulations insofar as their areas of functional responsibility are concerned. Any such Regulations have to be laid before each House of the Oireachtas.

The Act does not apply to the Garda Siochana Ombudsman Commission.