Journal of the Bar of Ireland • Volume 15 • Issue 1 • February 2010 Bankruptcy Tourism Childcare (Amendment) Bill 2009 Editorial Correspondence to: Eilis Brennan BL The Editor Bar Review Law Library Four Courts Dublin 7 DX 813154 Telephone: 353-1-817 5505 Fax: 353-1-872 0455 E: [email protected] Editor: Eilis Brennan BL Cover Illustration: Brian Gallagher T: 01 4973389 E: [email protected] W: www.bdgart.com Editorial Board: Typeset by Gough Typesetting Services, Dublin Gerry Durcan SC [email protected] T: 01 8727305 Mary O’Toole SC Patrick Dillon Malone BL Conor Dignam BL Adele Murphy BL Brian Kennedy BL Vincent Browne BL Mark O’Connell BL Paul A. McDermott BL Tom O’Malley BL Volume 15, Issue 1, February 2010, ISSN 1339-3426 Patrick Leonard BL Paul McCarthy BL Des Mulhere Jeanne McDonagh Jerry Carroll Contents Consultant Editors: Dermot Gleeson SC Patrick MacEntee SC Thomas McCann SC Eoghan Fitzsimons SC 2 Are They Watching You? – The Criminal Justice Pat Hanratty SC (Surveillance) Act 2009 James O’Reilly SC Gerard Hogan SC BY ANNEMARIE WHELAN BL The Bar Review is published by Round Hall in association with The 6 Bankruptcy Tourism Bar Council of Ireland. ED ARDING T H BL For all subscription queries contact: Round Hall i Legal Update: Thomson Reuters (Professional) Ireland Limited A Guide to Legal Developments from 43 Fitzwilliam Place, Dublin 2 20th November 2009 up to 25th January 2010 Telephone: + 353 1 662 5301 Fax: + 353 1 662 5302 E: [email protected] 11 Child Care (Amendment) Bill 2009: How we got here web: www.roundhall.ie DIANE DUGGAN BL Subscriptions: January 2010 to December 2010—6 issues Annual Subscription: €260.00 + VAT 16 Drunk Drivers, Car Passengers and Contributory Negligence For all advertising queries contact: ZELDINE NIAMH O’BRIEN BL Sean Duffy, Direct line: + 44 20 7393 7602 E: [email protected] 20 A Report from the Conferencia Anual de la Abogacia Directories Unit. Sweet & Maxwell Telephone: + 44 20 7393 7000 Espanola Contributions published in this journal are TURLOUGH O’DONNELL SC not intended to, and do not represent, legal advice on the subject matter contained herein. This publication should not be used as a substitute for or as a supplement to, legal advice. The views expressed in the articles herein are the views of the contributing authors and do not represent the views or opinions of the Bar Review or the Bar Council. The Bar Review February 2010 Are They Watching You? – The Criminal Justice (Surveillance) Act 2009 BY ANNEMARIE WHELAN BL Introduction rank limitations are also applied3 and the Act only permits “Superior Officers” to apply for an authorisation. In the case The Criminal Justice (Surveillance) Act 2009 (“the Act”) was of An Garda Siochana a superior officer is defined as “not signed into law on the 14th July 2009 and came into force below the rank of Superintendant”. on the 12th July 2009. The intention behind the legislation Unlike other areas of surveillance which are regulated e.g. was to provide a legal framework for the admissibility of data retention, and apply to even the most minor of offences, evidence gathered through the use of covert surveillance. It the application of the Act is limited to arrestable offences gives a legal basis to what is perceived to be existing practice only i.e. offences carrying a sentence of 5 years or more. A and attempts to bring Irish law into compliance with the “superior officer” must be investigating the commission or European Convention on Human Rights. It is entitled: apprehended commission of an arrestable offence however it is not necessary that the superior officer identify a specific “An act to provide for surveillance in connection with arrestable offence4. the investigation of arrestable offences, the prevention of suspected arrestable offences and the safeguarding Procedure of the state against subversive and terrorist threats, to amend the Garda Siochaina Act 2005 and The Courts A superior officer must apply to a District Court Judge for an (Supplemental Provisions) Act 1961 and to provide authorisation to carry out covert surveillance save for cases for matters connected therewith.” of urgency. The application is to be made ex parte for obvious reasons. It is also to be heard otherwise than in public5. As a result of this legislation, practitioners will soon have Where cases of urgency arise members of the relevant to deal with a new type of evidence gathered through bodies are not required to apply for an authorisation but surveillance (hitherto inadmissible due to the lack of statutory instead can seek approval from a superior officer6. While controls) and we may also find ourselves mounting challenges the circumstances which give rise to urgency under the Act to the constitutionality of some of the provisions. This article are set out, the section effectively allows members to bypass looks at the Act’s provisions and asks if they go too far in the judicial process entirely. While there is a stricter time impinging on personal privacy or go far enough in terms of limit applied to approvals, it remains open to the relevant regulating the area of surveillance? superior officer to apply for an authorisation within the time period7. The Scope of the Act Time Limits Despite the broad nature of the long title to the Act, the legislation actually only applies to the use of surveillance An authorisation can only last up to 3 months8 and an devices such as audio recorders (bugs) and video recorders approval up to 72 hours. However, there is provision for in surveillance of suspects or locations where devices are the renewal of the authorisation for up to 3 months with no physically planted. “Surveillance” is defined within the finite number of applications for renewal, the result being Act as “(a) monitoring, observing, listening to or making a that, theoretically, a person could be kept under surveillance recording of a particular person or group of persons or their indefinitely. movements, activities and communications, or (b) monitoring or making a recording of places or things, by or with the assistance of surveillance devices;”1[emphasis added]. Confidentiality and disclosure The parties to which the provisions apply are An Garda Siochana in respect of arrestable offences, the Defence Section13 provides, what is effectively, a complete ban on Forces in respect of threats to the security of the State and disclosing any information relating to the operation of the the Revenue Commissioners in respect of Revenue Offences (which are set out specifically within the Act)2. Certain 3 s.1. 4 s.5(3). 5 s.5. 6 s.7. 1 s.1 Criminal Justice (Surveillance) Act 2009 7 s.7 (10). 2 s.4. 8 s.5(8). Page 2 Bar Review February 2010 Act’s provisions including disclosing the existence of an Safeguards authorisation or approval. It is broad in its terms and goes so far as to make unauthorised disclosure an offence punishable The main form of safeguard provided for within the by a term of imprisonment up to 5 years. A distinction is draw legislation is judicial oversight. The application for an between “relevant” persons and all other persons with the authorisation must be made to a District Court judge and former being members of An Garda Siochana, the Revenue a High Court judge will be nominated to keep the system Commissioners or the Defence Forces. “Relevant” persons under review with an annual report12. face higher penalties for revealing information. The type of surveillance for which authorisation is As regards disclosure, s.15 is quite comprehensive in sought must be proportionate to the rights of third parties banning disclosure of documents, relating to the exercise and the aim sought to be achieved. The type of surveillance of powers under the Act, save by authorisation from the for which authorisation is sought must be the least invasive Court. It states: form of surveillance required in the circumstances and the District Judge should refuse authorisation in cases where the “(1) Unless authorised by the court, the existence or communications sought to be placed under surveillance are nonexistence of the following shall not be disclosed likely to be privileged. S.4 states: by way of discovery or otherwise in the course of any proceedings: “(5) A superior officer who makes an application under (a) an application under section 4 or 6; subsection (1), (2), (3) or (4) shall also have reasonable (b) an authorisation; grounds for believing that the surveillance being (c) an approval granted under section 7 or 8; sought to be authorised is— (a) the least intrusive (d) surveillance carried out under an authorisation means available, having regard to its objectives and or under an approval granted under section other relevant considerations, (b) proportionate to 7; its objectives, having regard to all the circumstances (e) the use of a tracking device under section 8; including its likely impact on the rights of any person, and and (c) of a duration that is reasonably required to (f) documentary or other information or evidence achieve its objectives.” in relation to— (i) the decision to apply for an authorisation The legislation also includes a complaints procedure13 or an approval under section 7 or 8, or which allows any person who believes that they might be (ii) anything referred to in paragraphs (a) to the subject of an approval or authorisation to apply to the (e).” “Referee” for an investigation14. A Superior Officer can apply in certain circumstances, the High Court judge keeping the It also goes further in directing the Court to refuse disclosure system under review may also request an investigation and where there is a material risk to the security of the State, the the Referee may on his or her own initiative investigate.