Surveillance Issues

Table of Contents

Scope of Legislation

The Criminal Justice (Surveillance) Act 2009 provides for surveillance in connection with arrestable offences. It applies to surveillance carried out by members of An Garda Síochána, Defence Forces and officers of the Revenue Commissioners.

It does not apply to an interception of telephone or equivalent messages, which is subject to separate regulation. It does not apply to close circuit TV, or to recording interviews of persons in detention, nor to recording by electronic or other means of evidence given for the purpose of court proceedings.

Requesting Surveillance

Members of Garda Síochána, Revenue Commissioners, or Defence Forces may only carry out surveillance with a valid authorisation under the legislation. A superior officer of an Garda Síochána may apply to a judge for authorisation where there are reasonable grounds for suspecting as part of an operation or investigation being conducted by Garda Síochána concerning an arrestable offence, that

the surveillance sought to be authorised is necessary for the purpose of obtaining information as to whether the offence has been committed, the circumstances relating to the commission of the offence or obtaining evidence for the purpose of proceedings.
the surveillance being sought is necessary for the purpose of preventing commission of arrestable offences or
the surveillance is necessary for the purpose of maintaining the security of the State.

There are equivalent provisions authorising superior officers of the Defence Forces or Revenue Commissioners to make equivalent applications. In the case of the Revenue the offence must be a revenue offence.

Requirements for Surveillance

The superior officer who makes the application must have reasonable grounds for believing that the surveillance sought to be authorised is

the least intrusive of the available means having regard to the objectives and other considerations,
proportionate to the objectives having regards to the circumstances and
is to be of a duration that is reasonably required to achieve the objective.

The application is made to a judge in a one-sided application, otherwise than in public. The judge is not to issue the authorisation if he is satisfied that the surveillance is likely to intercept communications protected by legal privilege.

Authorisation

The authorisation may impose conditions in relation to surveillance. It must be in writing and

specify particulars of the surveillance device authorized,
persons, or place the subject of the surveillance,
conditions of authorisation and
date of expiry.

The authorisation may permit Garda Síochána, Defence Forces or Revenue to enter premises for the purpose of initiating or authorizing surveillance or for withdrawing surveillance advice.

The terms of an authorisation may be varied or reviewed by the judge upon application. The application is to be made during the period of the previous authorisation.

Without Authorisation

Garda Síochána, Revenue Commissioners or the Defence Forces may carry out surveillance without court authorisation in a case of urgency. In this case an application is made to a superior officer to carry out the surveillance based on the grounds above and on the additional grounds that

a person may abscond for the purpose of avoiding justice,
may obstruct justice
are committing arrestable offence or Revenue offence,
the information in relation to the offence is likely to be destroyed last or become unavailable or
the security of the State is likely to be compromised.

In the above cases the superior officer grants the authorisation which may authorize a person concerned to enter for the purpose of placing or withdrawing the surveillance device. A record must be kept of the authorisation.

The maximum period of authorisation is 72 hours from the time of approval. If the superior officer who approves the surveillance believes on reasonable grounds that surveillance beyond 72 hours is warranted, he must apply for a court authorisation.

Tracking

A member of Garda Síochána Defence Forces or Revenue Commissioner may be for not than four months or such shorter period as the Minister may prescribe by regulations, monitor the movements of persons, vehicles and things using a tracking device if approved by superior officer. An application to a superior officer may be made.

The criteria in relation to a surveillance device is broadly similar to that for other surveillance. It is to be justified having regard to the same criteria and that

the use of the tracking device would be sufficient to obtain the evidence in the circumstances and
the information or evidence sought could reasonably be obtained by the use of the tracking device for a specified period that is short as practicable to allow the information or evidence to be obtained.

The approval may be granted subject to conditions including as to duration. The authorisation permits the placing of the tracking device and its removal without the consent of the person in charge of the vehicle or thing concerned. A written record of the approval is to be made within 8 hours. The terms of the approval may be varied.

Administrative Requirements

The superior officer who approves the device must make a report within 7 days specifying the grounds in which the approval was granted. The Minister may prescribe a maximum period during which such devices may be used.

There are restrictions on disclosure of the existence of the authorisation and other documents. Limited categories of persons only have access to the records. The Minister may make regulations in relation to disclosure or non-disclosure.

Materials and records under the Act are to be retained for three years or the date, in which they are no longer required for prosecution or appeal, whichever is the later. The Minister may authorize retention of documents in writing where he considers it necessary in the interest of the state.

Complaints Procedure

Surveillance raises the balance between the aims of preventing the commission, detecting arrestable offences and interest of justice on the one hand and rights of privacy and dignity of the citizen on the other.

A complaints procedure exists where a person believes he may have been subject of authorisation or approval. A referee may investigate the matter if the investigation would be in the interest of justice. Unless the application is frivolous the referee shall investigate the matter, in particular whether approval has been issued as alleged and whether there has been a contravention of the regulations.

Where there has been a contravention the referee is to notify the applicant and other people whose interests are affected and make a report on the findings as to whether the contravention is material and justified. The referee may cross the authorisation and acquire destruction of the record.

He may make a recommendation for payment of a sum of up to €5,000 by way of compensation. The matter may be referred to the Garda Síochána Ombudsman Commission.

If the referee is of the opinion that it is not in the public interest and notify the applicant of its conclusion or to direct or quash the authorisation or make a recommendation for compensation. He shall not do so if he concludes there has been no contravention. He should give notice in writing to the applicant stating only that there has been no contravention. The decision of the referee is final.

Confidentiality Requirements

There are provisions to ensure the confidentiality of information obtained. The purpose must be for the

prevention, investigation and detection of crime,
prosecution of offences,
interests of the security of the state or
the requirement of any enactment.

Breach of confidentiality is an offence, subject to summary prosecution, or prosecution on indictment.

Admissibility

Evidence obtained as a result of surveillance carried out under approval is admissible in criminal proceedings. It may be admitted notwithstanding any error or omission on the face of the authorisation or records concerned, if the court is satisfied that the error or the omission is inadvertent, and the information or document should be admitted in the interest of justice.

They should take account of whether

the error or omission concerned was serious or merely technical
the nature of the right infringed,
circumstances of urgency,
possibility of prejudicial effect of the information concerned and
probative value of the information.

Evidence obtained in breach of the legislation is admissible if in the circumstances the member or officer acted in good faith, d the failure was inadvertent, and the information or document are to be admitted in the interest of justice.

Restrictions on Disclosure

Unless authorized by a court the existence or non-existence of the following may not be disclosed.

an authorisation;
approval;
surveillance carried out under an authorisation;
use of a tracking device;
document or other records relating to the same.

The court is not to authorize disclosure if it is satisfied that it would

create a material risk for the security of the State,
the ability of the State to protect persons from terrorist activity,
maintenance of the integrity, effectiveness and security of the operations of Garda Síochána, Defence forces or Revenue,
the ability of the state to protect witnesses and their identities
the ability of the state to protect against organized crime and other serious crime.

Interceptions of Telecommunications

The Interception of Postal Packets and Telecommunication Messages Regulation Act provides for a system of authorisation for interception. An interception may be the opening of a postal packet, detention of its contents or the listing to recording or other interception of a telecommunication message.

The Minister may give authorisation for the purpose of criminal investigation or in the interest of the security of the State. He or she must not give an authorisation unless the conditions set below are satisfied and there has not been a contravention of the relevant provision.

Warrant

The warrant concern must give certain details of the proposed interception. It is to remain in force for three months but may be extended. The requisite conditions required for issue of the warrant are:

investigation is being carried out by Garda Síochána or other public authority charged with investigation offences or offences concerning a offence or suspect offence carrying imprisonment of at least five years.
Investigation not involving interception is to fail to produce or produce sufficiently quickly evidence of the offence and
there is a reasonable prospect at the interception of the particular messages or package from a particular address or device will give material assistance.

Alternatively in the case of an apprehended serious offence,

investigations are being carried out for the purpose of preventing the commission of the offence or enabling it to be detected if commissioned.
investigation not involving interception has failed or is likely to fail to produce or produce sufficiently quickly information as to the perpetrator’s time, place and other circumstances of the offence that would enable its prevention or detection
and there is a reasonable prospect that the interception of the particular packet or telecommunication would be of material assistance by itself or in conjunction with other information in preventing the offence and the importance.

In each case the importance of obtaining the information concerned must be such as having a regard to all the circumstances and notwithstanding the importance of preserving the privacy of packages and messages, it is sufficient to justify the interception.

There are alternative grounds, justifying interception on the basis of the security of the State.

There must be reasonable grounds for believing the particular activities are likely to endanger the security of the State.
The interception must be necessary to prevent or detect the offences or produce evidence sufficiently quickly and
the importance of obtaining the information must justify the interception notwithstanding the importance of preserving the privacy of the communication.

Applications for Authorisations

Applications for authorisation shall be made by the Commissioner of Garda Síochána or, Chief of Staff of the Defence Forces. An officer of the Minister is nominated for the purpose of the act. The officer may consider the application and having made the requisite inquiries submit a report to the Minister specifying whether in his opinion the requisite conditions have been met.

Once the requested evidence is acquired the interceptions are to be terminated without delay.

There is a complaints procedure under the legislation. A referee legally qualified may hear complaint. Broadly similar provisions apply under the above-mentioned legislation.

There are restrictions on disclosure of the existence of authorisation and matters intercepted.