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AN INCREASING number of requests by gardai for permission to spy on alleged criminals and terrorists are being rejected because the operations were premature, excessive or contained inadequate information. A report on the state’s covert surveillance operations by Kevin Feeney, a High Court judge appointed to audit spying activities by gardai, Customs and the military, found a small increase in the number of cases where gardai were refused permission to plant eavesdropping devices and tiny cameras to spy on people suspected of involvement in paramilitary groups and organised crime.
In one case, a chief superintendent who asked to use an audio transmitter was refused permission because the surveillance was not proportionate to the identified objectives of the operation. Applications by garda officers for surveillance warrants were turned down on the basis that the premises where the device was to be located had not been confirmed as available or appropriate.
The 2009 Surveillance Act allows gardai, the Defence Forces and Revenue Commissioners to break into homes and cars to plant recording devices and tiny cameras to record private conversations. The “product” can be used as evidence in prosecutions. Permission for the surveillance, which can last up to three months, must be granted by a district court judge.
Feeney said the number of cases where gardai obtained district court authorisation to plant devices was “a small double-figure number”. The number of authorisations that were declined was fewer than 10, but up on the previous year.
The report, obtained by The Sunday Times, also noted that surveillance and countersurveillance devices can be bought by the public. The judge said the availability of such equipment was brought to his attention when gardai found a device that had been installed by an unknown third party to monitor a person they were spying on. The report makes no reference to the discovery of such equipment by people being spied upon. Security sources say several devices have been detected recently…
I’ll upload a copy of the latest report as soon as I have it. In the meantime, the 2009/2010 report is available here.
REPORT PURSUANT TO SECTION 12 OF THE CRIMINAL JUSTICE(SURVEILLANCE) ACT
The Government, at its meeting on the 30
September, 2009, designated Mr.Justice Kevin Feeney as the designated judge pursuant to s. 12 of the Criminal Justice(Surveillance) Act 2009 (the Act). By letter of the 14
October, 2009 the Minister forJustice, Equality and Law Reform wrote to Mr. Justice Feeney informing him of thefact that he was to be “the designated judge” under the Act.Under section 12(3) the functions of the designated are to-(a) keep under review the operation of sections 4 to 8, and(b) report to the Taoiseach from time to time and at least once every 12months concerning any matters relating to the operation of thosesections that the designated judge considers should be reported.The purpose ofthe Criminal Justice (Surveillance) Act 2009 is identified in itstitle where it states -“An Act to provide for surveillance in connection with the investigation of arrestable offences, the prevention of suspected arrestable offences and thesafeguarding of the State against subversive and terrorist threats, to amend theGarda Siochlina Act 2005 and the Courts (Supplemental Provisions) Act 1961and to provide for matters connected therewith.”The functions of the designated judge include keeping under review sections 4 to 8 of the Act. Section 4 provides for applications for authorisation for surveillance, section5 provides for authorisation, section 6 provides for variation or renewal of
2authorisation, section 7 provides for approval for surveillance in cases of urgency andsection 8 provides for tracking devices.The Act provides that surveillance may only be carried out by a member of AnGarda Siochana, the Defence Forces or an officer of the Revenue Commissioners inaccordance with a valid authorisation issued by ajudge of the District Court, or, incertain limited circumstances, in accordance with an approval issued by a seniorofficer of a designated rank. Surveillance is defined in s. I of the Act to mean:”(a) monitoring, observing, listening to or making a recording of aparticular person or group of persons or their movements, activitiesand communications or(b) monitoring or making a recording of places or things,by or with the assistance of surveillance devices.”Surveillance device is defined in the same section as “an apparatus designed oradapted for use in surveillance” and certain apparatus are expressly excluded as beingsurveillance devices for the purpose of the Act. The legislation was enacted incircumstances where non-trespassory surveillance that is not specifically authorisedby statute had been found by the European Court of Human Rights to be unlawful andin breach of the rights to privacy under the Convention. The 2009 Act providesstatutory authorisation for non-trespassory surveillance in identified circumstances.As this is the first report under the Act, it is appropriate to provide a brief overview of sections 4 to 8 of the Act which are the sections the subject of this report.The starting point is that before any surveillance may be validly carried out, it isnecessary to obtain an authorisation either from the District Court under section 5 orin cases of “urgency” surveillance may be carried out without Court authorisation ifithas been approved by a superior officer in accordance with section 7 and surveillance
3carried out under that section may not be carried out for a period of more than 72hours from the time at which the approval is granted. Section 4 of the Act allowscertain persons to apply for authorisation under the Act, those being “a superiorofficer” of An Garda Siochana, the Defence Forces and the Revenue Commissioners.The minimum rank of the superior officer is designated in the Act. An application forauthorisation is made
to a District judge assigned to any District Courtdistrict. The scheme under the Act therefore does not require the application to bemade to the District Court district where it is intended to carry out the surveillance.An application under section 4 to authorise surveillance is heard in camera, that is inprivate. Under the Act the application must be grounded on information sworn by theapplicant which establishes that that person has reasonable grounds for believing anumber of matters, namely:(a) that the surveillance is necessary,(b) that the least intrusive means available having regard to its objectiveshas been adopted,(c) that the surveillance is proportionate to its objectives having regard toall the circumstances including its likely impact on the rights of anyperson, andCd) that the duration for which such surveillance is sought is reasonablyrequired to achieve the objectives envisaged.Only officers of the three identified bodies are entitled to seek authorisation, thosebodies being An Garda Siochana, the Defence Forces and the RevenueCommissioners. Section 4 of the Act identifies the information which each of thosebodies must establish to show that the surveillance is necessary.
4Certain designated persons are therefore entitled to make an application forauthorisation for surveillance under the Act. That application is made
to theDistrict Court and the District judge hearing the application may issue theauthorisation or may issue it subject to conditions or may refuse the application.Section 5 of the Act deals with the authorisation and where an authorisation is issued,following a District Court order, such authorisation authorises the applicant,accompanied by any other person he/she considers necessary, to enter any place (if necessary by reasonable force), for the purpose of initiating or carrying out theauthorised surveillance and withdrawing the authorised surveillance device withoutthe consent of the owner/person in charge. Section 5 also provides that theauthorisation must be in writing and must specify the particulars of the surveillancedevice authorised to be used, the subject of the surveillance, that is the person, placeor thing, the name of the superior officer to whom authorisation is issued, anyconditions imposed by the order and the expiry date of the authorisation. Theauthorisation issued by the Court is valid in respect of any part of the State and is notrestricted to the District Court district in which the order was obtained. The durationof the authorisation is identified on the face of the order and the District Court judgestates the date upon which it will expire which is a date which cannot be later thanthree months from the date of issue. The Act provides in section 6 for the possibilityof renewal or variation of an order and an application may be brought to renew orvary the authorisation but that application must be done prior to the expiration of theoriginal order. An application for renewal or variation must be grounded oninformation sworn by the person applying and must state the reasons for suchapplication justifYing a renewal or variation of the authorisation.
Section 7 of the Act deals with surveillance in urgent cases which may becarried out without an authorisation pursuant to a District Court order as provided forin section 5. Approval for surveillance in cases of urgency is dealt with in section 7and such surveillance must be carried out with the approval of a senior officer of aminimum designated rank. Before granting the approval, the superior or seniorofficer must be satisfied that there are reasonable grounds for believing that anauthorisation would be issued by the District Court and that one or more of thefollowing conditions of urgency apply:(a) it is likely that-a person would abscond for the purpose of avoiding justice,obstruct the course of justice orcommit an arrestable/a revenue offence;(b) information or evidence in relation to the commission of an arrestableoffence or a revenue offence is likely to be destroyed, lost or otherwisebecome unavailable, or(c) the security ofthe State would be likely to be compromised.An approval granted under section 7 in a case of urgency may be grantedsubject to conditions including the duration of the surveillance which cannot exceed72 hours. The Act provides that if the superior officer has reasonable grounds forbelieving that surveillance beyond the period of 72 hours is warranted that he or shemust make an application to the Court prior to the expiration of the period of 72 hoursfor an authorisation to continue the surveillance. Section 7 of the Act identifies theobligations on a superior officer who grants an approval.
6Section 8 of the Act deals with tracking devices which provides a statutorybasis by which the movements of persons, vehicles or things may be monitored usinga tracking device for a period of not more than four months where approved by asuperior officer without any necessity of making an application to Court. A trackingdevice is defined and the minimum rank ofthe superior officer who may approve theuse of a tracking device is set out in the section. That section provides that in additionto satisfying the normal grounds for issuing an authorisation, a person applying forsuch authorisation must show that the use of a tracking device would be sufficient forobtaining the information/evidence sought and that the information/evidence soughtcould reasonably be obtained by the use of a tracking device for a specified periodthat is as short as is practicable to allow the information or evidence to be obtained.An approval may be granted subject to conditions including the duration of thesUrveillance.A number of Statutory Instruments have been introduced which are relevant tothe operation and function of the Act. Three Statutory Instruments, dealing withwritten record of approval, for An Garda Siochana, the Revenue Commissioners andthe Defence Forces were introduced, namely, Statutory Instruments No. 275/209,290/209 and 80/20 I
District Court Rules dealing with the procedures to be appliedby the District Court were introduced by two Statutory Instruments, namely, StatutoryInstrument No. 314/2010 and Statutory Instrument No. 360/2010. An order under34A of the District Court Rules is also relevant.The Act was signed into law on the 12
July, 2009 and became operative as of that date. I was not notified of my appointment as the designated judge pursuant tosection 12 until I received the letter of the 14
October, 2009. In those circumstancesI determined, that in the first year of its operation, that it would be appropriate to
7review the operation of the Act from its inception date to the date of the 31
July,20 I0 and to review the operation and use of sections 4 to 8 under the Act during thatperiod.After my nomination as the designated judge, I was contacted by the office of the Chief of Staff ofthe Defence Forces, the Commissioner of An Garda Siochanaand the Chairman of the Revenue Commissioners who in each instance identified asenior person who would act as a point of contact and would facilitate me in thecarrying out of my functions under section 12 of the Act. On being informed ofthecontact person in each of the three bodies, I made written contact with each of thosepersons in October 2009. In November 2009 I attended at McKee Barracks and atGarda Headquarters in Phoenix Park for the purpose of discussing the procedureswhich had been followed to that date and/or were to be followed by both of thosebodies. In particular, I observed the initial procedures and documents used by AnGarda Siochana in operating the provisions of the Act and ascertained that adequateand sufficient documentary records were being kept. Records were being kept of every occasion when the provisions ofthe Act were used.By the 19
November, 2009, which was the date of my attendance in GardaHeadquarters where I met with an Assistant Commissioner and a number of otherofficers, it was apparent that An Garda Siochana had already availed of the provisionsof the Act and had put in place a centralised written record of all occasions andinstances in which there had been applications for authorisations, the granting of authorisations, the variation or renewal of authorisations, the approval of surveillancein the case of urgency and the use of tracking devices.After the Act had been in use for a period of slightly in excess of one year, Iagain made contact with each of the contact persons within the three organisations
8and arranged to attend at a relevant location where each of those three bodies held therelevant documentation and information. Meetings were arranged with each of thethree bodies in the month of September 2010 and I attended at McKee Barracks whereI met with the Colonel in charge of the operation. The Colonel in charge hadavailable the written records in relation to each and every occasion upon which theprovisions of section 4 to section 8 of the Act had been operated by the DefenceForces in the period from the commencement of the Act up to the 31
July, 2010. Iwill deal later with each of the three bodies in separate paragraphs. In September20 I0 I also attended at the headquarters of An Garda Siochana where I met with theAssistant Commissioner in charge of the use and operation of surveillance under the2009 Act and had made available to me the documentation and records relating toeach and every occasion upon which An Garda Siochana had availed of the provisionsof section 4 to section 8 of the Act. Similarly in September 20 I0 I attended at theInvestigations and Prosecution Division of the Revenue Commissioners and met withthe Assistant Secretary in charge of the use and operation of surveillance under theAct by the Revenue Commissioners. I was provided with documentation and recordsdealing with each and every use by the Revenue Commissioners of the provisions of section 4 to section 8 of the Act during the relevant period up to the 31
July, 20 IO.The Defence FOJrcesMy consideration of the documents and records kept by the Defence Forcesand made available to me established that the Defence Forces had availed of theprovisions under the Act on a limited number of occasions during the twelve and ahalf month period under review. The Defence Forces had used the provisions oftheAct on less than ten occasions and therefore I was in a position to review and consider
9the documents available in relation to each and every use by the Defence Forces of the provisions of sections 4 to 8 of the Act. On every occasion upon whichsurveillance was carried out by the Defence Forces during the twelve and a half month period, such surveillance was carried out pursuant to an authorisation issued bythe District Court following an application for such authorisation. On each occasionupon which an application was made to the District Court, the Colonel in charge waspresent and was available for examination by the District Court judge. I reviewed thedocumentation and was satisfied that from those records each and every occasionupon which the Defence Forces had operated the provisions of section 4 that anauthorisation from the District Court had been obtained. On every occasion theColonel in charge was the instigator of the application for authorisation under section4. In each instance the authorisation issued by the District Court under section 5 wasavailable to me. On no occasion was an authorisation granted for the maximumperiod and the period of authorisation was in each instance limited to a period lessthan three months. The basis for the application under section 4 in each and everyinstance was that the surveillance sought was necessary for the purpose of maintaining the security of the State. In each instance upon which an applicationunder section 4 was granted the District judge was satisfied to make an order. Forsuch an order to be made the District judge is required to be satisfied by informationon oath of the superior officer concerned. The authorisation granted providesparticulars of the surveillance device to be used, the person or place or thing that is tobe the subject of surveillance, the name of the superior officer to whom it was issuedand the conditions upon which the authorisation was issued including the date of expiry. In no instance was section 6 of the Act used by the Defence Forces, that is, anapplication for variation or renewal of authorisation. In one instance a person who
10had been previously the subject matter of a surveillance order was the subject of asubsequent application to the District Court. The documentation indicated that in thatcase there had been an authorisation for a period of one month in respect of aparticular person but that the surveillance device had been removed before the end of that period and that due to the need to extend the scope and nature of the surveillancea fresh application was made to the District Court for an authorisation under section 5.The fact of the earlier surveillance order was disclosed to the Court at the time of themaking of the second application.As indicated earlier in this report an application for authorisation can be madeto any District judge and I therefore consider it appropriate to identify whether or notone particular District judge was being used as the person to whom applications weremade by the Defence Forces. The position identified by the documentation was thatevery authorisation issued during the period was issued by a different District judge.I had the opportunity of speaking with the Colonel in charge of the operationof the Act and I was able to discuss with him the operation of sections 4 to g of theAct and to review the use by the Defence Forces of the provisions under the Actduring the twelve and a half month period after the Act came into operation. TheDefence Forces did not avail of the provisions under section 7 for the approval of surveillance in cases of urgency on any occasion during the period nor had theyavailed of the provisions under section g. Due to the limited number of uses by theDefence Forces in the period under consideration I was able to review the files anddocuments available in respect of each and every use by the Defence Forces of theprovisions of the Act. That review qemonstrated that in each and every instance aDistrict judge was satisfied to grant an authorisation under section 5 and that suchauthorisation was available for review. I spoke to the Colonel in charge and obtained
an oral account of the circumstances giving rise to the application for authorisation.That information is confidential and it relates to criminal investigations which areprogressing. The documentation available and the information provided to me by theColonel in charge enabled me to review the operation of sections 4 to 8 by theDefence Forces for the twelve and a half month period in question. Theimplementation of Statutory Instrument No. 360/20 I0 will facilitate a standardisationof information available in relation to applications brought under section 4 for anauthorisation under section 5.During my review nothing came to my attention in relation to the DefenceForces’ use of the Act which would suggest any improper or inappropriate use of theprovisions of sections 4 to 8 of the Act.
In November 2009 I visited the Assistant Commissioner in charge of theoperation and co-ordination of all applications for authorisation or use under sections4 to 8 of the Act. I met with the Assistant Commissioner and a number of othermembers of An Garda Siochana and ascertained that early use had been made by AnGrda Siochana of the provisions of the Act after its introduction. I reviewed the makeup of the documentation and information which was kept and recorded. Thedocumentation and records were retained in a centralised location and were availableto me for review. The system in operation was such that all applications under theAct were directed through the Assistant Commissioner in charge.In September 2010 rmet with the Assistant Commissioner in charge of theoperation of the Act for An Garda Siochana and a number of other senior members of the Garda!’ The manner in which An Garda Siochana operates the Act is that all
12requests for use of and all applications for use or authorisations under the Act and allrequests for use of tracking devices are dealt with by one Assistant Commissioneroperating at the head of a small team of senior officers. All documentation andrecords generated are available centrally and were available to me on the occasion of my visit.The period of review was from the commencement of the Act until the 31
July, 2010. The use ofa central point for all uses under the Act results in allapplications for usage being directed through one section and that section has seniorofficers who have been trained in relation to the operation of the Act so as to ensurethat the procedures and record keeping which have been laid down are maintained.From my discussions with the Assistant Commissioner and the other seniormembers, it was apparent that early consideration was given as to the mode of operation which the Gardai would adopt in seeking to avail of the provisions of theAct. Legal advice was sought including consideration of international case law fromother common law jurisdictions where surveillance has been permitted by statute andalso consideration was given to decisions of the European Court of Human Rights.Part of that ongoing consideration is that an internal policy document is in the processof completion and it is envisaged that it will be available for circulation within theGardai prior to the end of this calendar year. When that document has beencompleted a copy of it will be made available to me as part of my review of theoperation of the Act as designated judge. The policy document will apply throughoutAn Garda Siochana.The surveillance permitted under the Act is operated by An Garda Siochana insuch a manner that in practise no individual Guard, no matter of what rank, caninstigate a usage under the Act without going through the internal procedures which
13direct the usage through a particular section. This applies in every case. Thatapproach was apparent from my inspection as all the documentation and recordsrelating to all and any usage under the Act had been directed through the one section.The scope of usage related to all areas of serious organised crime and subversiveactivities.The considerable resource implications involved in the use of the Act resultsin a situation where surveillance is only used in carefully selected and targeted cases.An examination of the documents and records available to me and an examination of the breakdown of the usage by the Garda! of the provisions of the Act confirms thissituation. It is also the case that some usage involves real risk to the persons involvedin assisting in the application for or the usage of surveillance devices. Surveillancedevices can and are operated in a covert manner but the position is that the usage of the product of such surveillance in Court proceedings involves the operation inquestion being the subject of review in public with the actual or potentialidentification of parties involved in the process. This results in deployment of devicesin carefully selected and considered cases.It is to be noted that there is currently available on a commercial basissurveillance devices and counter-surveillance devices which can be purchased bymembers of the public. The use of such devices by third parties, including criminals,is a matter of ongoing concern to the Gardai.All the documentation and records generated by the Gardai in their use of theprovisions of the Act in the relevant period were made available to me in GardaHeadquarters. Records relating to each and every section 5 application were availableand it was apparent from an examination of those records that no individual Guard
14could pursue an authorisation without him or her being directed to the section whichcontrolled and monitored the operation of the Act.In relation to the section 4 applications, which are applications forauthorisation, I had regard to the occasions where a request for an application wasrefused. There were less than ten cases where members of the Gardai had sought to
– – – – – – –
have an application for authorisation made but where such request had be’en refused.All the files relating to those cases were available to me and I chose at random 50% of the cases. That review indicated that requests for an application for authorisation tobe made had been made in circumstances where they were premature or where suchrequests did not provide the necessary information to ground an application forauthorisation or where circumstances were such that it was deemed that suchapplication was not proportionate. In those cases no application was made. Giventhat the procedure which is followed by An Garda Siochana is that all applications gothrough the section dealing with these matters and given the imminent introduction of a written internal protocol, it would appear unlikely that there will be a substantialnumber of cases where applications by individual Gardai for the making of anapplication for authorisation under section 4 ofthe Act will be refused. However, theprocedures which are in place provides a filtering process to endeavour to ensure thatthe requirements for the granting of an authorisation are present prior to anapplication for authorisation being made.In the relevant period, An Garda Siochana made a number of applicationsunder section 4 and authorisation was granted under section 5 by the District Court.The number of cases represented a small double figure number and therefore I wasable to review 33% ofthe section 5 authorisations on a random basis. The documentsand records relating to all applications were available and I chose 33% of the cases at
random. A review of those cases demonstrated that usually applications were made tothe District judge assigned to the District Court area where the surveillance wasenvisaged to occur. In all instances applications were made on information on oathand since the introduction of Statutory Instrument No. 360/20 I0 that information is ina set format. The cases reviewed indicated that the Act had been used in anappropriate manner and the surveillance dealt with such matters as the delivery of controlled drugs and investigations of crimes of serious violence invariably targetedagainst organised criminal or subversive groupings. Consideration of the documentsdemonstrated that the period of authorisation was invariably less than the maximumperiod and was targeted to the nature and circumstances of the proposed surveillance.Also in a number of instances, notwithstanding the grant of an authorisation undersection 5, no deployment occurred due to altered circumstances.In each and everyone of the cases chosen at random I was provided withinformation concerning the circumstances as to why such surveillance took place,how such surveillance occurred, the nature and extent and type of information whichwas gleaned and the extent to which deployment was possible.There were no applications for variation or renewal of authorisations made byAn Garda Siochana during the relevant period.A number of authorisations under section 7 for approval of surveillance incases of emergency were made during the relevant period. As those applications werenot the subject of consideration by the District Court I paid particular regard to thoseapprovals during my review. As in the other cases all the documentation and recordsrelating to such approvals were available for my consideration. The number of authorisations was a double figure number representing roughly twice the number of section 5 authorisations. In reviewing the records it was apparent that a number of the
approvals for surveiJIance in cases of emergency proceeded to subsequent section 4applications and the grant of a section 5 authorisation. That sequence could begleaned from a cross-reference of the documentation. I reviewed a substantialnumber of the section 7 approvals and in each and every instance the order waslimited to a period of no greater than 72 hours. In the vast majority of cases the orderwas for a duration of considerably less than 72 hours. In reviewing those approvals Ipaid regard to the information which was present on the documents and recordsconcerning the urgency of such approvals. That review demonstrated that in the casesreviewed there was in each instance an identifiable urgency for granting an approvalunder section 7. In a number of cases information had only become availableimmediately prior to the approval being granted under section 7 and such approvalrelated to events which were imminent. In a significant number of cases whereapproval was granted under section 7 the duration of the approved surveillance was solimited in time that such surveillance would have been completed within a matter of hours and prior to any opportunity to apply to Court for an authorisation under section5. Examination of the records and documents also demonstrated that urgent approvalswere required in circumstances where information crystallised immediately prior tothe actual surveillance itself. The use of section 7 and the other sections of the Actand the grant of approvals for surveillance in case of urgency related to organisedcriminal activity and to matters of State security.From my examination of the section 7 approvals and from the informationprovided to me at my meeting it is indicated that section 7 approvals are used incircumstances where there is neither the time nor circumstances which will allow orpermit for an application under section 4 for an authorisation under section 5. Thenature of the surveiJIance, the location of such surveillance and the duration identified
in the documents is entirely consistent with there being urgency in each of the caseswhich was considered.A written record is kept of approvals granted under section 7 which providesparticulars ofthe surveillance device, the person, place or thing that is to be thesubject of the surveillance, the name of the member of An Garda Siochana to whomsuch approval is granted, the conditions imposed on such approval, the time at whichsuch approval is granted and the duration of the approved surveillance. In at least oneinstance where a file was reviewed, the documents demonstrated the imposition of conditions which were consistent with the protection ofthird parties’ privacy.The final section of the Act which the designated judge is required to keepunder review is section 8 which deals with tracking devices. During the relevantperiod tracking devices were approved for use on a substantial number of occasions,the number of such approvals being less than 100. As with the operation of the othersections of the Act, all documentation and records relating to such approvals for therelevant period were available. I was able to review a number of the cases at randomand it was apparent that tracking devices had been placed on vehicles and objects. Astracking devices are less intrusive than surveillance devices the approval of the use of such devices does not require any application to Court. A member or officer canapply to a superior officer for the grant of an approval to use a tracking deviceprovided the requirements laid down in section 8, sub-section (2) of the Act are met.An examination of the records demonstrated that tracking devices were invariablyused as an aid to traditional Garda investigative methods for the purposes of givingthe location and direction of vehicles and objects if moved. The cases which Ireviewed demonstrated that the approvals under section 8 were granted in
18circumstances where there was extensive information available from earlierinvestigations.The review of the approvals granted under section 8 including the conditionsas to duration and use of the tracking devices and the information providedconcerning the circumstances and reasons for granting such approvals indicated thatsuch tracking devices were invariably used as part of ongoing investigations and as anaid to traditional Garda investigative methods.During my review of An Garda Siochana’s use of sections 4 to 8 of the Act,nothing came to my attention which would suggest any improper or inappropriate useand the procedures in place are designed to ensure that such event should not occur.The Revenue CommissionersIn September of2010 I visited the Investigations and Prosecutions Division of the Revenue Commissioners and spoke to an Assistant Secretary who wasaccompanied by two other officials at principal officer level. The Revenue alsooperates a system where all applications under the Act are made through the oneoffice. All the documents and records relating to the use and operation of the 2009Act by the Revenue Commissioners during the relevant period were available for myreview. To assist in a considered and consistent approach to the operation of theprovisions of the Act, the Revenue Commissioners have issued written operationalinstructions in the form of an instruction manual on the Criminal Justice(Surveillance) Act 2009 which was issued in July 2010. A copy of that manual wasmade available to me. That manual identifies the criteria for the use of surveillanceand sets out in detail approved procedures and the procedures to be observed by
also provides, in an appendix, details of the statutory lawrelating to surveillance.An examination of the documents and records demonstrated that in themajority of cases the usage by the Revenue Commissioners related to tracking devicesunder section 8. During the relevant period there had been a number of applicationsunder section 5 and since those applications were relatively few I was able to reviewthe documentation and records relating to all those applications. Applications undersection 5 were based upon information on oath of superior officer specifying thegrounds and the format followed in the applications was almost identical to the formatultimately identified in Statutory Instrument No. 360/2010. The authorisation grantedto the Revenue Commissioners under section 5 in each instance was in writing andspecified the particulars required in section 5, sub-section (6) of the Act. A review of all of the section 5 authorisations identified that in each instance the particulars of thesurveillance device was identified, the person, place or thing which was to be thesubject of the surveillance was identified, the name of the superior officer to whom itwas issued was identified and the conditions including the duration were identified.The duration varied dependent upon the nature of the surveillance required. As withAn Garda Siochana the grant of an authorisation did not necessary result in theactivation of a device as the circumstances which gave rise to the application and thegrant of the authorisation had altered by the time it came to place or to activate thesurveillance device.No use of section 6 or section 7 of the Act was made by the RevenueCommissioners during the period under review.A number of approvals for the use of tracking devices under section 8 weregranted to officers of the Revenue Commissioners during the period under review.
The number of approvals granted under section 8 was in small double figures. All thedocumentation and records in relation to such approvals were available and on arandom basis I chose 33% ofthe approvals for review. In each and every instanceapplications for approval were made to an officer ofthe Revenue Commissioners of not less than principal officer. The principal officers to whom such applications forapproval were made were in every instance one of the principal officers directlyinvolved in operating and monitoring the Act for the Revenue Commissioners. It wasapparent from consideration of the documentation and records and from theinformation provided to me that the cost and manpower involved in the use of
tracking devices and in particular surveillance devices is such that they are targetedand limited to cases where there is already existing information. In all the caseswhich were reviewed there was a written record of approval consistent with section 8,sub-section (7) of the Act and there was available to me information and records toconfirm the appropriateness of the use of such devices.During my review nothing came to my attention which would suggest anyimproper or inappropriate use of sections 4 to 8 of the Act and the procedures in placeprovide for a consistent and targeted use of the Act.
Each of the three entities entitled to avail of the provisions of sections 4 to 8 of the Act have put in place a procedure to ensure that all use is directed through adesignated person, section or branch. In each instance the documentation and recordsnecessary to assist in the review were available in a central location and I was free tochoose at random any application, authorisation or approval for consideration. Thedocumentation relating to same was available and when explanations were requestedin relation to the individual circumstances they were readily provided. The three
Covert Surveillance Report 2009-10
This is the annual report for 2009/10 of the “Designated Judge” responsible for monitoring the operation of covert surveillance in Ireland. For background on the legis… (More) This is the annual report for 2009/10 of the “Designated Judge” responsible for monitoring the operation of covert surveillance in Ireland. For background on the legislation see: http://www.tjmcintyre….
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