Criminal Justice Surveillance Bill 2009 - Second Stage Debate - 30th JUne 2009

Criminal Justice Surveillance Bill 2009 – Second Stage Debate - 30th June 2009
Senator David Norris: I welcome the Minister of State. Like many preceding speakers, I am an amateur and do not have legal qualifications. Unfortunately, I missed the contribution by my colleague, Senator Bacik, who has an astute, professional view on these matters. However, I have some comments to make.
I will comment first on the Minister of State's speech and then on a short briefing I got from the Irish Human Rights Commission. This Bill comes, I presume, in the context of various murders, in particular gangland murders and drug related offences. This area is a huge industry. It is astonishing these offences take place so flagrantly and blatantly. People even boast about their involvement in these matters, at least by implication, on sites like Facebook. Some notorious criminals and their molls in Limerick have put material up on Facebook boasting about "my favourite gun" in the aftermath of a murder. This is an affront to civilised, decent society.
There has been a notable, changing, sophisticated pattern of the use of electronic information in murder trials over recent years, for example, the use of mobile phone patterns where signals are picked up from one centre to another. However, whereas the pattern of movement of a suspect can be placed before the court as evidence, I have yet to learn of a situation where the substance of a conversation has been placed before the court. This means we have a situation where the police may know a crime has been or is about to be committed, but is paralysed in terms of bringing the evidence before the court. Therefore, I welcome the development that will allow this to happen. We must be careful however, because we are talking here about secret surveillance. Any involvement by the State in spying, which is what it is, on individual citizens must be examined carefully in case of what the American military would call "friendly fire". We do not want decent citizens or people involved in minor infringements to be involved in this area.
The Minister of State said in his speech, "Both Bunreacht na hÉireann and the European Convention on Human Rights guarantee an accused person's right to a fair trial." That is only right. However, I noticed he did not refer to privacy. I would think that an important element. We have an obligation in international law to respect the privacy of the citizen except in rare and circumscribed circumstances. The privacy of third parties has not been raised in this debate so far. The police may be able to listen in to conversations and to sit some distance away and use electronic instruments to penetrate into a person's home, but while there may well be a criminal present, there may also be a perfectly innocent third party present whose activities should not be of interest to the police. In cases where the news media also have access, an innocent person could be dragged unwittingly into the situation. I ask the Minister of State to consider the rights of innocent third parties who may, willy-nilly, have become involved in a criminal situation.
I am glad Senator Walsh raised the matter of an arrestable offence because this is something I marked as needing further consideration. There seems to be a fairly low threshold for this and there are a myriad of arrestable offences.

Senator Jim Walsh: We agree on many things.

Senator David Norris: On one or two, but it is a pity the Senator is such a sour puss on gay rights.

Senator Jim Walsh: I agreed with the Senator on the civil partnership issue.

Senator David Norris: Perhaps we will subject the Senator to surveillance, put a tracking device on him and see what he is up to see if we can embarrass him into supporting it - a bit of blackmail.

Senator Jim Walsh: Senator Norris said today he was going to oppose it.

Senator David Norris: No. We must not let this debate get too light-hearted because this is a serious matter.

An Cathaoirleach: It is time to move on.

Senator David Norris: I notice the Revenue Commissioners can apply to carry out surveillance. This must be considered only in a serious situation. I do not believe every little person who is massaging his tax returns should be subject to this. They deserve a little slack and not this kind of surveillance. The Minister of State spoke about ex parte applications. Of course the application would be ex parte as one would hardly send a notification to the person to be subjected to secret surveillance.
The provision in section 11 is excellent. It is a necessary and important corrective that people who are subjected to secret surveillance will have the right to make an appeal and should be compensated. I say this as someone who had his telephone bugged a number of years ago. I found the situation irritating, laughable and entertaining, but I would have made a complaint if possible and would have claimed €5,000 as well. That would have been welcome.
I note the Ministers for Justice, Equality and Law Reform, Defence and Finance may make regulations under the Act. Why is this? This function should be centralised. This is a matter of justice and only the Minister for Justice, Equality and Law Reform should have this power. I do not want the Minister for Finance sticking his nose into this, nor do I want the Minister for Defence doing so. They should have to work through the Department of Justice, Equality and Law Reform and should not be given free rein.
Before I come to the briefing by the Irish Human Rights Commission, I refer to the dreadful lost opportunity by the Government when it downsized and made its mean-minded attacks on various organisations. Today, I am sad to say, is the day of the funeral of the Combat Poverty Agency, which is shameful. The Irish Human Rights Commission has survived but in a slightly downsized form. I urge the Minister of State to take back to his colleagues the suggestion made at the launch of the last annual report that the Irish Human Rights Commission should be used by Government. It should send legislation to that so that it can be human rights proofed. The Government does not have to take up all its suggestions but this practice would be very useful and would cut some corners. The commission suggests that the definition of surveillance should include ongoing repeated photographing of people so that such actions by the Garda would also be subject to review. What is sauce for the goose is sauce for the gander.
With regard to tracking devices, four months is too long a time without a requirement to return to the judge to ask for an extension. In the case of a review by a High Court judge, when something suspect is discovered, the object of surveillance must be informed. This is good. I believe the Garda Síochána Ombudsman Commission should also be included in the Bill. I suggest we follow the principle that what is sauce for the goose is sauce for the gander. If there is criminal activity against a member of the public by a person who happens to be a member of the Garda, that person should have the right to get the Garda Síochána Ombudsman Commission to use the same machinery against that member.
A detailed and accessible code of human rights-based practice should be included in the regulations to be published by the Minister for Justice, Equality and Law Reform so that citizens can consult it to see where they stand with regard to this important new legislation. In general and in outline, I welcome what the Minister is doing with this Bill.