Covert Surveillance Report 2010-2011

 

REPORT REPOR T PURS PURSUA UANT NT TO SECTIO SECTION N 12 OF THE CRIMI CR IMINA NAL L JUST JUSTIC ICE E (SUR (SURVE VEIL ILLA LANC NCE) E) AC ACT T 2009 2009

REVIEW REVI EW OF OPERA OPERATI TION ON OF THE THE ACT ACT BY THE THE DESI DE SIGN GNAT ATED ED JUDG JUDGE E FOR FOR THE THE YEAR YEAR FROM FROM 1st AUGUST, 2010 TO 31st JUL JULY, Y, 2011

 

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REPORT: 1. 1

 

At its me meet etin ing g on the the 3 30 0th Sep Septem tember ber,, 2009 the the Gover Governme nment nt designa designated ted Mr.

Justic Jus ticee Kevin Kevin Feeney Feeney as the the designa designated ted judge judge pursua pursuant nt to section section 12 of the Crimin Criminal al Ju Just stic icee (Sur (Surve veill illan ance ce)) Act Act 2009 2009 (the (the Act). Act). In Oct Octobe oberr 201 2010 0 I forw forwar arde ded d to the the Taois Taoisea each ch my first first repo report rt as "De "Desi signa gnate ted d Judge Judge"" un unde derr the Act. Act. The The Act was si sign gned  ed  th

int into o la law w on the 12 Ju July ly,, 20 2009 09 and be beca came me opera operativ tivee as o ofth fthat at da date te and the first first re repo port rt co cove vere red d the perio period d from from the da date te that that the Act Act ca came me int into o op oper erat ation ion up to an and  d  includi inc luding ng the 31 5t   JJuly, uly, 2010. 2010. This This report report covers covers the twelve twelve month month period period therea thereafte fter, r, thatt is, ffor tha or the year year up to and includ including ing the 31 5t   July, 2011. 1.2

  Unde Underr sect sectio ion n 12(3) 12(3) of of the Act, Act, the func functio tions ns of the desi design gnat ated ed judge judge are are to: to: (a) (a)

keep keep und under er re revi view ew the the ope opera rati tion on of sect sectio ions ns 4 to 8, and  and 

(b) (b)

repo report rt to the the Tao Taois isea each ch from from time time to ti time me and and at le leas astt once once eve every ry twelve twe lve months months concer concerning ning any matt matters ers relatin relating g to the opera operation tion of  thosee sec thos section tionss that that the des designa ignated ted judge judge con conside siders rs should should be report reported. ed.

The purpos purposee of the the Criminal Criminal Justic Justicee (Survei (Surveillan llance) ce) Act 2009 2009 is iden identifi tified ed in it itss title title where whe re it statesstates"An Act to provide provide for surve surveilla illance nce in co conne nnecti ction on with the the investig investigatio ation n of  arrest arr establ ablee offenc offences, es, the preve preventio ntion n of susp suspect ected ed arrest arrestable able offence offencess and tthe he safegu saf eguard arding ing of the the State State against against subver subversive sive and te terro rrorist rist threats threats,, to amend amend the Gard Ga rdaa Sioc Siocha hana na Act Act 2005 an and d the Court Courtss (Supp (Supple leme menta ntall Prov Provisi isions ons)) Act Act 19 1961 61 and to provide provide for mat matter terss connec connected ted ther therewi ewith." th." Section Sec tion 3 of the Act sta states tes:: "A membe memberr ofthe ofthe Gard Gardaa Sioch SiochAn Ana, a, a me memb mber er of th thee Defe Defenc ncee Forc Forces es or an officer offi cer of the the Revenu Revenuee Com Commis mission sioners ers shall shall carry carry out surveil surveillanc lancee only in

 

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accorda acc ordance nce with a valid valid authori authorisat sation ion or an appr approva ovall gra granted nted in accor accordan dance ce with s. 7 or 8.~' Surveil Sur veillan lance ce is defin defined ed in sectio section n 1 of the the Act and means means (a) (a)

moni monito tori ring ng,, obse observ rvin ing, g, list listen enin ing g to o orr maki making ng a reco record rdin ing g of a  particular person or group of persons or their movements, activities and communi communicat cations ions,,

(b) (b)

or 

moni monito tori ring ng or maki making ng a reco record rdin ing g of pl plac aces es or th thin ings gs,,

 by or with the assistance of surveillance devices, In my my first first repo report rt I incl includ uded ed within within the tex textt a brie brieff an anal alys ysis is of the the rel relev evan antt sect section ionss of  the Act. Act. I have have revi review ewed ed that that sect section ion of my first first repo report rt an and d I now set out an up-d up-dat ated  ed  and revised revised analysi analysiss of the releva relevant nt section sectionss of the the Act. 1.3

  The The Act prov provide idess that that su surve rveill illan ance ce may may only only be carri carried ed ou outt by a mem membe berr of An An

Garda Gar da Siochan Siochana, a, the Defen Defence ce Forces Forces or an offi officer cer of the Re Reven venue ue Comm Commissi issione oners rs in accorda acc ordance nce with a valid valid author authorisa isation tion iss issued ued by a judge judge of the Dist Distric rictt Court, Court, or, in certain cer tain limited limited cir circum cumsta stance nces, s, in acco accorda rdance nce with an appro approval val iss issued ued by a senior  senior  offic officer er ofa ofa de desi signa gnate ted d rank. rank. Surve Surveill illan ance ce is def define ined d in se sect ction ion 1 of the the Act Act to mean: mean: "(a) "(a)

moni monitor toring ing,, ob obse serv rving ing,, liste listenin ning g to o orr makin making g a reco record rding ing of a  particular person or group of persons or their movements, activities and commun communica ication tionss

(b) (b)

or 

moni monito tori ring ng or maki making ng a reco record rdin ing g of pl plac aces es or th thin ings gs,,

 by or with the assistance of surveillance devices." Survei Sur veillan llance ce device device is d defin efined ed in the same same section section as ""an an apparat apparatus us des designe igned d or  adapte ada pted d for use use in surveil surveillan lance" ce" and cert certain ain appara apparatus tus are exp expres ressly sly exc exclude luded d as bei being ng su surve rveill illan ance ce de devic vices es for for the pur purpos posee of the Act. Act. The The le legis gisla latio tion n was was en enac acted ted in cir circum cumsta stance ncess where where non-tres non-trespas passor sory y

survei surveillan llance ce that is not specific specificall ally y authori authorised  sed 

 

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 by statute had been found by the European Court of Human Rights to be unlawful and  in brea breach ch of the right rightss to priva privacy cy under under the the Conve Convent ntion ion..

The The 20 2009 09 Ac Actt provide providess

sta statuto tutory ry authori authorisat sation ion for non-tre non-trespa spasso ssory ry surveill surveillanc ancee in iiden dentifi tified ed cir circum cumsta stance nces. s. Sect Section ionss 4 to 8 are are the sect section ionss of the the Act Act whi which ch are are the su subje bject ct of repo report rt by the desi designa gnated ted judge. judge. The starti starting ng point point is that before before any surve surveilla illance nce may be va validl lidly y ca carr rrie ied d ou out, t, it must must be cove covere red d by a va valid lid au autho thoris risat ation ion or an an approv approval al.. To obt obtai ain n an authori aut horisat sation ion an applica application tion is made made to the D Distr istrict ict Cour Court. t. In cases cases of ""urge urgency" ncy" surveil sur veillan lance ce may be carrie carried d out without without Court Court author authorisa isation tion if it has has been been approve approved d by a supe superior rior officer officer in accorda accordance nce with section section 7. Surveill Surveillanc ancee car carrie ried d out under under that sect sectio ion n is limi limite ted d to a max maxim imum um pe peri riod od of72 of72 ho hours urs from from the time time at whic which h th thee ap appro prova vall is gra grante nted. d. Sect Section ion 4 oft ofthe he Act Act allo allows ws ce cert rtai ain n pe pers rson onss to aappl pply y for  for  authoris auth orisati ation on under under the Act Act,, those being being "a superi superior or office officer" r" of An Gar Garda da Sioc Siochan hana, a, the the Defe Defenc ncee Forc Forces es an and d the Reve Revenue nue Com Commis missio sione ners rs..

The The minim minimum um rank rank of the the

superior supe rior office officerr is designa designated ted in the Act. Act. An applica application tion for autho authorisa risation tion is made made   ex Distric rictt judge judge as assi signe gned d to any any Distric Districtt Court Court dis distri trict ct.. The The sche scheme me under under th thee  pa  parte rte   to a Dist Act theref therefore ore does does not requir requiree the applica application tion to be made made to th thee District District Court Court district district where whe re it is inte intend nded ed to ccar arry ry ou outt the su surve rveill illan ance ce..

An applic applicat ation ion un unde derr sect section ion 4 to

au autho thoris risee su surv rvei eilla llanc ncee is h hea eard rd in cam camer era, a, that that is in pri priva vate te.. Unde Underr the Act Act th thee applica app lication tion must must be grounde grounded d on infor informat mation ion sworn sworn by the the app applic licant ant whic which h establi est ablishe shess that that tha thatt person has reas reasona onable ble grounds grounds for be believ lieving ing a numbe numberr of ma matte tters, rs, namely: (a (a))

that that the the llea east st int intru rusiv sivee me mean anss av avai aila lable ble having having regar regard d to its ob obje ject ctive ivess has been been ado adopte pted, d,

 

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(b) (b)

that that the su surv rvei eilla llanc ncee is propo proporti rtiona onate te to its ob obje ject ctive ivess ha havin ving g rega regard rd to all the circum circumsta stance ncess includi including ng its likely likely imp impact act on the right rightss of any any  person, and 

(c (c))

that that the the du dura ratio tion n for whi which ch such sur surVe Veill illan ance ce is so sough ughtt is reas reasona onably bly require req uired d to achieve achieve the obj object ective ivess envisa envisaged ged..

Only office officers rs of three three ide identif ntified ied bodies bodies are entit entitled led to seek seek authorisa authorisation tion,, those those bodies bodies are An An Garda Garda Siochan Siochana, a, the Defence Defence Forces Forces and the Reven Revenue ue Com Commis mission sioners ers.. Section Sec tion 4 of of the Ac Actt identif identifies ies the informatio information n whic which h each each of those bodies bodies must must establ est ablish ish to show that the sur surveil veillan lance ce is nece necessa ssary. ry. Certai Cer tain n designa designated ted persons persons are the theref refore ore entitled entitled to make make an aappli pplicat cation ion for  authori aut horisat sation ion for surveil surveillanc lancee under under the A Act. ct. Tha Thatt applic applicatio ation n is made made  ex parte   to the

Distric Dis trictt Court Court and the Distric Districtt judge judge hearing hearing the applicatio application n may issue issue the authori aut horisat sation ion or may may issue issue it subjec subjectt to cond conditio itions ns or may may ref refuse use the appl applica ication tion.. Section Sec tion 5 of the the Act deals deals with authoris authorisatio ation n and provid provides es tha that, t, when when an authori aut horisat sation ion is iss issued ued,, foll followin owing g a Distric Districtt Court Court applic applicatio ation n that that such such authori authorisat sation ion authori aut horises ses the appli applican cant, t, accomp accompani anied ed by aany ny oth other er person person he/she he/she consid considers ers nec necess essary ary,, to enter enter any place place (if nec necess essary ary by reasona reasonable ble force) force),, for tthe he purpose purpose of initia initiating ting or  carryin car rying g out the author authorise ised d survei surveillan llance ce and withd withdraw rawing ing the authori authorised sed surveil surveillanc lancee de devi vice ce withou withoutt the the conse consent nt of the the owner/p owner/per erso son n in cha charge rge of the the place. place. Sect Section ion 5 aalso lso  provides that the authorisation must be in writing and must specify the particulars of  the surveil surveillan lance ce device device aut authori horised sed to be used, used, the subject subject of the survei surveilla llance nce,, tha thatt is the perso person n or the the plac placee or thing thing that that is to be tthe he su subje bject ct of the survei surveilla llanc nce, e, the name name of the supe superior rior office officerr to whom whom author authorisa isation tion is iss issued ued and any ccondi ondition tionss impose imposed d by the order order togethe togetherr with the expir expiry y date of the authori authorisat sation. ion.

The autho authoris risatio ation n iss issued  ued 

 by the Court is valid in respect of any part of the State and is not restricted to the

 

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Distri Dis trict ct Court Court distr distric ictt in whic which h the the orde orderr is obta obtaine ined. d. The The du dura ratio tion n of tthe he authori aut horisat sation ion is identif identified ied on the face face of the the order and the Distric Districtt Court Court judge judge sta states tes the date date upon whic which h it will will ex expir piree which which is a dat datee wh whic ich h ca cann nnot ot be la late terr than th thre reee months mon ths from the date of issue. issue. The The Ac Actt provid provides es in se sect ction ion 6 for the the possibi possibilit lity y of rene renewa wall or vari variat ation ion of an orde orderr an and d an appli applica catio tion n may may be broug brought ht to rene renew w or vary vary the auth authori orisa satio tion n but that applica app lication tion mus mustt be done done prior to the expira expiration tion of the origina originall order. order. An applicat application ion for renewa renewall or varia variation tion must must be grounded grounded on informat information ion sworn sworn by the the perso person n applyin app lying g and mus mustt sta state te the reaso reasons ns for such such applicat application ion just justifyi ifying ng a renewa renewall or  variation variati on of the authorisation. authorisation. Sect Section ion 7 of the Act Act de deal alss with with su surve rveill illan ance ce in ur urge gent nt ca case sess whic which h may may be carrie car ried d out with without out an autho authoris risatio ation n from from the Distr District ict Court, Court, provide provided d that such such survei sur veillan llance ce is appr approve oved d in acco accorda rdance nce with that that section section.. In cases cases of urge urgency ncy section section 7 provid provides es that that su surve rveill illan ance ce may may be carri carried ed out with with the approv approval al of a senior senior offic officer er of  a min minimum imum designa designated ted rank. rank. Bef Before ore granting granting an ap approv proval, al, the super superior ior or senior  senior  office off icerr must must be satisfie satisfied d that that there are reasona reasonable ble grounds grounds for b beli elievin eving g that that an au auth thori orisa satio tion n would would be issue issued d by the Distri District ct Court Court an and d that that on onee or mor moree of the followin foll owing g conditi conditions ons of urgenc urgency y apply: apply: (a)

it is likely thata pers person on would would abscon abscond d for the the purpose purpose of avoid avoiding ing justice justice,, obstruc obst ructt the course course of justice justice or  commit com mit an arrest arrestabl able/a e/a revenu revenuee offence offence;;

(b)

infor informa matio tion n or ev evide idenc ncee in rela relatio tion n to th thee comm commis issi sion on of an arre arrest stab able le offenc off encee or a revenu revenuee offenc offencee is likely likely to be destroy destroyed, ed, los lostt or otherwis otherwisee  become unavailable, or 

 

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(c) (c)

the the sec secur urit ity y of the the Sta State te woul would d be li like kely ly to be com compr prom omis ised ed..

An approval approval grante granted d under under section section 7 may be granted granted subjec subjectt to conditio conditions ns includi inc luding ng the durati duration on of the the surveil surveillan lance ce which which in any any even eventt Calliot Calliot exceed exceed 72 hours hours.. The Act provid provides es that that if the superi superior or office officerr has reas reasona onable ble grounds grounds for believi believing ng that su surv rvei eilla llanc ncee be beyon yond d the period period of 72 ho hours urs is war warra rante nted d th that at he or she must must make make an ap appli plica catio tion n to the Court Court prior prior to the expira expiratio tion n of th thee period period of 72 hours hours for for an authori aut horisat sation ion to continu continuee the surve surveilla illance nce..

Section Section 7 of the Ac Actt also also identifie identifiess the

obligat obli gations ions on a ssupe uperior rior office officerr who grant grantss an approva approval. l. Sect Section ion 8 of the the Act deals deals with with track tracking ing de devi vice ces. s. That That sect sectio ion n provid provides es a sta statuto tutory ry basis basis by w whic hich h the moveme movements nts of persons persons,, vehicl vehicles es or things things may be

monitor mon itored ed using using a tracki tracking ng device device for a period period of not not more than four months months provide provided  d  thatt the use of such trac tha tracking king device device is ap approv proved ed by a supe superior rior office officer. r. Such Such approval approval do does es not re requi quire re an any y applic applicat ation ion to Cour Court. t. A tra track cking ing de devi vice ce is defin defined ed an and d the mi minim nimum um rank rank of the super superio iorr offic officer er wh who o may may ap appro prove ve th thee use of a track tracking ing de devic vicee is set out in the the section. section. The section section provide providess that that a person person applyin applying g for autho authorisa risation tion mustt believ mus believee on reas reasona onable ble grounds grounds that that the use of a tracking tracking device device wou would ld be suffici suff icient ent for obtainin obtaining g the informa information tion/ev /evide idence nce informa info rmation tion/ev /evide idence nce

sought sought and that that the the

sought sought could could reason reasonabl ably y be ob obtai tained ned by the the use of a trac tracking king

device dev ice for a speci specifie fied d per period iod and that such such period period is as as short as is pra practic cticabl ablee to allow allow the the info inform rmat ation ion or evid eviden ence ce to be obta obtain ined ed.. An appr approva ovall may may be gran grante ted d su subje bject ct to conditi con ditions ons includi including ng the duration duration of the the surveilla surveillance nce.. A numb number er of Statut Statutory ory Instrum Instrument entss have have been intr introduc oduced ed which which are releva relevant nt to the oper operat ation ion an and d func functio tion n of tthe he Act. Act. Thre Threee Stat Statuto utory ry Instr Instrum umen ents ts,, de deal aling ing wit with h written writ ten records records of approva approval, l, for An Gard Gardaa Sioc Siochan hana, a, the R Reve evenue nue Com Commis mission sioners ers and 

 

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the Defe Defence nce Forces Forces were introduced introduced,, namely namely,, Sta Statuto tutory ry Instrum Instruments ents No.   275/209, 290/209 290 /209 and   80/2010.   Distric Districtt Court Court Rules Rules dealing dealing with the proce procedure duress to be applie applied  d   by the District Court were introduced by two Statutory Instruments, namely, Statutory Instrum Ins trument ent No. 314/201 314/2010 0 and Statuto Statutory ry Instrum Instrument ent No.  360/2010.   An o orde rderr und under  er  34A   of the District District Court Court Rules Rules is also also relevan relevant. t. 1.4

  In car carry rying ing ou outt my revi review ew un unde derr sect section ion 12 of th thee Act, I was was in conta contact ct wi with th

and visite visited d the office office of the the Colonel Colonel designa designated ted as my my point point of contac contactt within within Oglaigh Oglaigh na hEi hEire rean ann. n.

I was was in conta contact ct with with bo both th the Assist Assistan antt Secr Secret etar ary y id iden entif tifie ied d by the

Revenu Rev enuee Commiss Commissione ioners rs and the the Assi Assista stant nt Commis Commission sioner er of An Garda Garda Sio Siocha chana na de desig signa nate ted d by the the Comm Commis issio sione nerr of An Garda Garda Sioc Siocha hana na as the of offic ficer er in char charge ge of the operat ope ration ion and use by An Garda Siochana Siochana of su surve rveilla illance nce unde underr the Crimin Criminal al Justice Justice (Survei (Sur veillan llance) ce) Act 2009. 2009. 1.5

  During During the months months of Septe Septembe mberr and Octo October ber 2011 I visited visited McKee McKee Barracks Barracks,,

the Invest Investigat igations ions and Prosec Prosecutio utions ns Divisio Division n of the Reven Revenue ue and Garda Garda Hea Headqua dquarte rters rs in Phoe Phoeni nix x Park. Park. In Octob October er 20 2011 11 I visit visited ed Gard Gardaa off offic ices es in Dub Dublin lin Cast Castle le an and d in Harcou Har court rt Street Street for the purpos purposes es of review reviewing ing doc docume umenta ntation tion and mee meeting ting with officer offi cerss involve involved d in parti particul cular ar survei surveillan llance ce operat operations ions.. 1.6

  In carr carryin ying g out my revie review w I ha had d made made av avai aila lable ble to me an any y docum documen enta tatio tion n that that

I reques requested ted includi including ng access access to origina originall docume documentat ntation ion and video video and audio audio re reco cord rding ings. s.

The The main main us usee of the the pro provis visio ions ns of the the Act is made made by An Garda Garda Si Sioc ochA hAna na..

An Garda SiochAna SiochAna is respons responsible ible for dealing dealing with crime crime and the preven prevention tion of crim crimee an and d mainta maintaini ining ng the secur security ity of the the Stat State. e. Durin During g my visits visits to An Garda Garda Sfoc SfochA hAna na I sought soug ht and was provided provided with a demon demonstra stration tion of the ma manne nnerr in whic which h surv surveil eillanc lancee device dev icess and track tracking ing device devicess operat operate. e. I also also listene listened d to and v view iewed ed cer certain tain product product obtaine obta ined d as a resu result lt of the use use of surveil surveillanc lancee device devicess and tracki tracking ng dev device ices. s.

 

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1. 1.7 7

 

The The Act ha hass now be been en in ope opera ratio tion n for over over two years years an and d the poi point nt of tim timee

ha hass now been reac reache hed d wh wher eree the the ea earli rlier er us usee of the the Act and the infor informa matio tion n an and  d   product obtained as a result of surveillance carried out under the Act forms part of   pending prosecutions before the Court. No trial where the use of material obtained  under und er the the Act Act ha hass ye yett taken taken place place but it is env envis isag aged ed that that su such ch a ttria riall or tria trials ls wi will ll oc occu curr within within a m mat atte terr of month months. s. I hav havee indi indica cate ted d that that up upon on the comp comple letio tion n of the the trial trial or trial trialss that that fut future ure revi review ewss of the operat operation ion of the the Act ca can n ex exte tend nd to the the us usee of  surveil surv eillanc lancee materi material al and product product in comple completed ted cou court rt cases cases.. Sec Section tion 14(1) 14(1) of the Act Act  provides that evidence obtained as a result of surveillance carried out under an authoris auth orisati ation on or under under an approva approvall may be admi admitted tted in evide evidence nce in crimin criminal al  proceedings.

Section 14(2) of the Act provides that nothing in the Act is to be

constru con strued ed as prejudi prejudicin cing g the ad admis missib sibilit ility y of inform informati ation on or materi material al obtaine obtained  d  otherwi othe rwise se than than as a resu result lt of surveil surveillan lance ce carrie carried d out u under nder an authori authorisat sation ion or under  under  an appro approva val. l. Neith Neither er of thos thosee two two su subb-se sect ctio ions ns ha have ve ye yett bee been n co cons nsid ider ered ed by the co court urtss and the admissi admissibili bility ty of eviden evidence ce obtained obtained as a result result of surveill surveillanc ancee and any issu issues es arising arising in relati relation on to informa information tion or mate materia riall obta obtaine ined d othe otherwi rwise se tha than n as a result result of  su surve rveill illan ance ce or the the natu nature re of such such ma mate teria riall ha hass ye yett to be the su subje bject ct of revi review ew by the co cour urts. ts. As mater materia iall an and d produc productt ob obta taine ined d as a resu result lt of surv survei eilla llanc ncee is put put before before the courts cou rts as eviden evidence, ce, the organ organisa isation tionss conduc conducting ting suc such h survei surveilla llance nce unde underr the  provisions of the Act will develop knowledge and guidance as to the operation of the Act.

An Garda   S f o c h a D a

2.

2. 2.1 1

 

Duri During ng the year year under under review review a differe different nt Assista Assistant nt Commiss Commissione ionerr became became

re resp spon onsib sible le for for the opera operatio tion n an and d us usee of the the provis provision ionss of th thee Act Act by An Garda Garda

 

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Siocb Sio cban ana. a. I met met with an and d de dealt alt with the new Assis Assista tant nt Comm Commis issio sione nerr an and d his senio senior  r  officers. 2.2

An Gar Garda da Siocba Siocbana na co conti ntinu nuee to op oper erat atee a ce cent ntra ralis lised ed proc proces esss for al alll inst instan ance cess

of survei surveillan llance ce carrie carried d out unde underr the Act. Act. There There continu continues es to b bee a cent central ralise ised d written written record rec ord of aall ll occasi occasions ons and instanc instances es in which which there there have been applicatio applications ns for  authori aut horisat sations ions,, variati variations ons or rene renewal walss of autho authoris risatio ations ns or appro approval valss for su surve rveilla illance nce in cas cases es of urgen urgency cy an and d the use of trac trackin king g de devic vices es.. The The docu docume menta ntatio tion n was was made made availab ava ilable le to me for review review togethe togetherr with data extracte extracted d fro from m such such doc docume umenta ntation tion co conc ncer ernin ning g the natu nature re,, us usee an and d ex exte tent nt of u use se of the Act Act by An Garda Garda Sioch Siochan ana. a. Due to the fact fact that that the same proce procedur dures es we were re in pl plac acee for the the year under under revi review ew as wer weree in  place when I previously reported, I am in a position in this report to compare the

twelve twe lve month monthss under under revie review w with with the prec preced edin ing g pe peri riod od so tha thatt an any y altera alteratio tion n in the the us usee an and d opera operatio tion n of the the Act Act by An Garda Garda Sioc Siocha hana na ca can n be identif identifie ied d an and d inco incorp rpora orate ted d in thi thiss repor report, t, I aarr rran ange ged d for for data and statis statistic ticss to be pre prepa pare red d on an iden identic tical al ba basi siss for  for  the twel twelve ve month monthss to the 31 st   July July,, 20 2010 10 an and d the twelve twelve month monthss to the 31 st  Ju  July, ly, 2011 . In my prev previou iouss repo report rt the perio period d un unde derr revie review w wa wass sli slight ghtly ly more more tha than n twelve twelve month monthss h as the the perio period d co comm mmen ence ced d on the the   I t Ju July, ly, 2009 2009 an and d ended ended on th thee 31 st   Ju July ly,, 2010. 2010. For  For 

the the purp purpos oses es of comp compar aris ison on I aarr rran ange ged d for for the twe twenty nty da day y period period up to the the 31 st  July, 2009 to be exclude excluded d from from the statisti statistics cs and data so that that the figures figures which which I rev review iewed  ed   both covered a twelve month period. The data which was produced identified each an and d ev ever ery y insta instanc ncee when when the the Act Act was was us used ed in the the two twelve twelve mont month h pe perio riods ds,, inclu includin ding g the date date of applicati application, on, the date of authoris authorisati ation, on, the date of app approva roval, l, the nature nature ofthe ofthe device dev ice,, the person, person, place place or tthing hing covered covered by the the authoris authorisatio ation n or aappro pproval val,, the duratio dur ation n provide provided d for in the authorisa authorisation tion or appr approval oval togethe togetherr with other other relevant relevant de deta tails ils.. The The na natur turee of the the da data ta en enab able led d me to choos choosee a num numbe berr of case casess on a rando random m

 

11

 basis for further consideration.

I chose four different types of approvals and/or 

authoris auth orisati ations ons from the data. data. I sshal halll dea deall with those those specif specific ic cases cases lat later er in this this report. report. 2.3

In co cons nside iderin ring g the do docu cume menta ntatio tion n I ha had d ava availa ilable ble the the do docu cume menta ntatio tion n used used by

An Gard Gardaa Siochan Siochanaa for app applica lication tionss for authori authorisat sation. ion.

As those those app applica lication tionss are

conside con sidered red and ruled ruled on by a Distric Districtt Judge, Judge, I d did id not re revie view w that that docume documenta ntation tion other  other  than to ascert ascertain ain that the the relevant relevant docume documenta ntation tion used used in appli applicat cations ions for author authorisa isation tion and the the authori authorisat sations ions granted granted are retaine retained d and form form part of the the records records mainta maintaine ined d by An Garda Garda SiocM SiocMna na.. 2.4 2.4

I ex exam amin ined ed a samp sample le..

In my fir first st rep repor ortt I indi indica cate ted d that that An Gar Garda da Sio SiocM cMna na had had sou sough ghtt le lega gall adv advic icee

in rela relation tion to the the operati operation on of the the Act including including conside considerati ration on of interna internation tional al case case law from other other common common law jurisdic jurisdiction tionss where where surveilla surveillance nce had been been per permit mitted ted by sta statute tute and also that that conside considerat ration ion had been been give given n to reported reported dec decisio isions ns in rela relation tion to su surv rvei eilla llanc ncee from from the Europe European an Court Court of Huma Human n Rights Rights.. In m my y la last st report report I stat stated ed tha thatt  part of that ongoing consideration was the preparation of an internal policy document whic wh ich h was was in the the proce process ss of comp comple letio tion n an and d that that it was was envis envisag aged ed that that it would would be av avai aila lable ble for cir circu cula latio tion n withi within n An Gard Gardaa Sioc SiocMna Mna prior prior to the end of 20 1O. Durin During g the prepa preparat ration ion of that that document document a number number of aaddit dditiona ionall and furthe furtherr matter matterss arose arose whic wh ich h re requi quire red d lega legall ad advi vice ce.. I ha have ve dis discu cuss ssed ed with with the As Assis sista tant nt Com Commis missi sione onerr the  present position in relation to the internal policy document.

It is now envisaged that a

written wri tten prot protoco ocoll will be comp complete lete and avai availab lable le for circu circulati lation on with within in An Garda Garda Sioch Sio ch{m {maa bef before ore the en end d of 2011. 2011. The The protoc protocol ol is in final final draft draft form form an and d when it is co comp mple lete te it will will be made made av avai aila lable ble in the form form of a Hea Headq dqua uarte rters rs Di Dire rect ctive ive whic which h ca can n  be accessed by Gardai on the Garda portal. The availability of the written Directive on the the Gard Gardaa porta portall will will en ensu sure re that that it is ava availa ilabl blee to all Gard Gardai ai.. Such Such availa availabil bility ity is for the the purpose purpose of ensuri ensuring ng that that all an and d any use of the Crimina Criminall Justice Justice (Surve (Surveilla illance nce))

 

12

Act 2009 will be conducte conducted d in accord accordanc ancee with iden identifi tified ed procedu procedures res and will will operate operate through thro ugh specif specified ied sen senior ior office officers rs and in such such a mann manner er as tto o ensure ensure that that a fu full ll and  compre com prehen hensiv sivee record record is mainta maintaine ined. d.

The pro protoco tocoll will endea endeavour vour to ensure ensure that the

manne ma nnerr in whic which h An Garda Garda Sioc Siocha hana na op oper erat ates es the Act Act contin continue uess to be ba base sed d up upon on a  process where all requests for use of and all applications for use or authorisations under und er the Act Act an and d all all reque request stss for for use of track tracking ing de devi vice cess are are de deal altt with with by one Assi Assista stant nt Comm Commis issio sione nerr op oper erat ating ing at the the head head of a small small te team am of senio seniorr offic officer ers. s. That That  process is designed to ensure that there is a comprehensive and complete record. It is thatt do tha docu cume menta ntatio tion n whic which h ha hass been been av avai aila lable ble to me on the the occas occasion ionss of my my visits visits,, The The operat ope ration ion and reten retention tion of the rele relevan vantt docume documenta ntation tion in a comple complete te and  compre com prehen hensiv sivee form form in a cen centra tralise lised d locatio location n facilit facilitate atess my revie review w under under sec section tion 12

and enables enables me to identif identifY Y individu individual al uses uses of the the Act for further further conside considerat ration. ion. 2.5 2.5

In my first first rep repor ortt I indi indica cate ted d that that th thee op oper erat atio ions ns of the the pro provi visi sion onss of th thee Act Act by

an entit entity y such such as An Garda Garda Sfocha Sfochana na invo involve lved d consid considera erable ble time, time, effort effort and cost cost and  require req uired d extens extensive ive manpowe manpowerr to ensure ensure the eff effect ective ive operati operation on of the provis provisions ions of the Act. Ac t. Durin During g my re revie view w for tthis his y yea ear's r's repo report rt I eexte xtend nded ed my inqu inquir irie iess to includ includee ac actua tuall de demo mons nstra tratio tions ns of ho how w the diff differ eren entt form formss of ssur urve veill illan ance ce are are carr carrie ied d out. out. It is appare app arent nt from that review review that that the operat operation ion and use use of certain certain survei surveillan llance ce device devicess require req uiress the extensiv extensivee use of equipm equipment ent and/or and/or vehicles vehicles and man manpow power er includi including ng in so some me instan instance cess tw twen enty ty four four hour hour co cove vera rage ge..

Surv Survei eilla llanc ncee mu must st be cove covert rt an and d this

require req uiremen mentt increa increases ses the manpowe manpowerr necess necessary ary to ensur ensuree that that any survei surveillan llance ce remains rem ains undet undetect ected. ed.

The con consid sidera erable ble resourc resourcee implica implication tion involved involved in the use o of  f 

survei sur veillan llance ce under under the Act continue continuess to result result in a situa situation tion where where surveil surveillan lance ce is only only used use d in carefu carefully lly select selected ed and target targeted ed cas cases. es. The man manpow power er require required d inc include ludess not only the the use of suffic sufficient ient persons persons to try try and ensure ensure that the surveilla surveillance nce will rem remain ain

 

13

un unde dete tect cted ed but also also provis provision ion ha hass to be mad madee for secur security ity of the the me memb mber erss of An Garda Garda Siochana Sioc hana involve involved d in the surveil surveillanc lance. e. 2.6 2.6

In my firs firstt repo report rt I indi indica cate ted d that that ther theree was ccur urre rent ntly ly avai availa labl blee on a

commer com mercia ciall basis basis surveilla surveillance nce dev device icess and coun counter ter-su -surve rveilla illance nce

device devicess which which can be

 purchased by members of the public. That availability was confirmed during the year  under und er review review whe where re an ins instan tance ce was broug brought ht to my atten attention tion where where a survei surveillan llance ce device dev ice was identif identified ied as havin having g been been installe installed d by an unknow unknown n third third par party ty who had  had  nothing noth ing to do with with An Garda Garda Siocha Siochana. na. 2.7 2.7

In car carry ryin ing g out out my rev revie iew w I have have b bee een n able able tto o exte extend nd my inqu inquir irie iess to inc inclu lude de

an exam examina inatio tion n of pa part rtic icula ularr ca case sess ch chos osen en on a rando random m ba basi sis. s. In thos thosee ca case sess I arrange arr anged d for access access not only only to the docum documenta entation tion concer concerning ning the author authorisa isation tion and  us usee of devic devices es bu butt also the the mate materia riall an and d produ product ct obtai obtaine ned d from from the survei surveilla llanc nce. e.

I

arrang arr anged ed to have have present present at the the time of such revi review ew a senior senior office officerr or officer officerss involve invo lved d in the actua actuall investig investigati ations ons so that the the document documentatio ation, n, materia materiall and produ product ct co could uld be expl explain ained ed to me and put in conte context. xt. From From su such ch revie review w I was was able to identif identify y reall and obvious rea obvious tan tangibl giblee benefi benefits ts accruin accruing g to An An Garda Siocha Siochana na both in relati relation on to crime crime and nat nationa ionall securit security. y. The infor informat mation ion and prod product uct genera generated ted include included  d  inf informa ormation tion leading leading to crimi criminal nal pro prosec secutio utions, ns, and inform informatio ation n and mater material ial relati relating ng to matters mat ters of nation national al securit security y and concern concerning ing the manner manner and mo mode de of op opera eration tion of  orga organi nise sed d cr crim ime. e. I hav havee ha had d made made av avai aila lable ble to me audio audio reco record rding ingss toget togethe herr wi with th th thee transc transcript riptss genera generated ted theref therefrom rom of mate materia riall not onl only y leading leading to cr crimi iminal nal prosecu prosecution tionss  but also concerning the operation of paramilitary organisations.

One of the cases

which whi ch I revi reviewe ewed d concer concerned ned a Gard Gardaa inve investig stigatio ation n into a partic particular ular aspect aspect of nationa nationall secu securit rity y with with a sign signifi ifica cant nt int inter erna natio tiona nall dimen dimensio sion. n.

From From my re revie view w of tthe he

docume doc umenta ntation tion and inform informati ation on it was ap appar parent ent that that the persons persons tar target geted ed had b been een

 

14

clearl cle arly y identifi identified ed and that that the loc locatio ation n of the targete targeted d sur survei veillan llance ce was both both specific specific as to locat location ion and time time and theref therefore ore could could be res restric tricted ted to th thee minimum minimum necess necessary ary for  effect eff ective ive survei surveillan llance. ce.

The abilit ability y to targ target et the surv surveil eillanc lancee has tthe he benefit benefit of limit limiting ing

the pote potenti ntial al for coll collat ater eral al int intrus rusion ion.. It was was also also app appar aren entt fr from om my ex exam amin inat ation ion of the the docume doc uments nts and recor records ds tha that, t, where there there was suffic sufficien ientt time time availa available ble from the re recei ceipt pt of the intellig intelligenc encee to the actual actual event event sought sought to be targ targete eted d to enabl enablee an applic applicatio ation n for  authoris auth orisati ation on to be made made under under section section 4 of th thee Act, such such procedure procedure was followe followed. d. The use of secti section on 7 appro approval valss came came in ssitua ituation tionss where where there there was not such time  period available. 2.8

One One of the ca case sess whic which h I revi review ewed ed was was wh wher eree a track tracking ing de devic vicee was appr approve oved  d 

an and d used used un unde derr sect sectio ion n 8 of th thee Act as par partt of an investi investiga gatio tion n int into o ill illic icit it drug drug activit act ivities ies.. The doc docume umenta ntation tion availa available ble demons demonstrat trated ed tha thatt the use use of the trac tracking king device dev ice had been of assista assistance nce in provi providing ding informa information tion and intellig intelligenc encee into va variou riouss constit con stituen uents ts of the the illegal illegal activit activity y includi including ng informa information tion in relati relation on to the produc production tion,, importa imp ortation tion,, storage storage and distribu distribution tion of the illega illegall drug drugs. s. The informa information tion availab available le from fro m the tr track acking ing device device assiste assisted d in the ident identific ificati ation on of the the perso persons ns involve involved d and   provided the investigating officers with information in relation to the actual move mo veme ment ntss an and d where whereab abou outs ts of par partic ticula ularr pe perso rsons ns,, ve vehic hicle less an and d things things.. From From my own examina examination tion of recor records ds relati relating ng to on onee of the the uses of an appro approved ved tracki tracking ng device device underr section unde section 8, it was appare apparent nt that the resu results lts obtained obtained fro from m that device provid provided ed an indicat indi cation ion of the pattern pattern of behav behaviour iour of a partic particula ularr sus suspec pect. t. 2.9 2.9

The The revi review ew prov provid ided ed for for in sec secti tion on 12 of th thee Act Act to be be car carri ried ed out out b by y aju ajudg dgee

of the the Hig High h Court Court is a rev revie iew w of tthe he operat operation ion of sectio sections ns 4 to 8 of the the Act. Act. The The first first of thos thosee section sections, s, section section 4, deals deals with applic applicatio ations ns for autho authorisa risation tion..

In my first first

re repo port rt I de deal altt with with the occas occasion ionss when when a req reque uest st for for an appli applica catio tion n wa wass refuse refused. d. I

 

15

indic indicat ated ed tha thatt in the the period period under under revie review w at the the tim timee of my firs firstt repor reportt there there were were le less ss than tha n ten ten ca case sess where where memb member erss of An Garda Garda Sioc Siocha hana na ha had d so sough ughtt to have have an applic app licatio ation n for authori authorisat sation ion made made but where where such reques requestt had been been refused. refused. In the curren cur rentt year year under under review review there there has been been a margina marginall increa increase se in suc such h cas cases es but the figure fig ure is still still le less ss tha than n ten. ten. Due Due to th thee smal smalll number number of case casess involv involved ed I was was ab able le to go throug through h each each of those those cases cases with senior senior officer officers. s. The reaso reasons ns identif identified ied inc include luded  d  one instance instance where where a reques requestt by a Chief Chief Sup Superi erinten ntenden dentt for aan n applic applicatio ation n for the the use of an audio audio device device was refuse refused d as being being not pr propo oportio rtionat natee to the ident identifie ified d obje objectiv ctives. es. There The re were were a smal smalll number number of ca cases ses where the reque requests sts were were ref refuse used d on the the basis that that eithe eitherr the thing thing or pre premi mise sess wher wheree the the de devi vice ce was to be locate located d ha had d no nott be been en confirm con firmed ed as being being either either ava availa ilable ble or appro appropria priate. te. There There was al also so an instan instance ce where where a requ request est was refuse refused d in relat relation ion to a drug drugss investig investigati ation on on the basis basis that more sp spec ecifi ifics cs would would be requ require ired. d. My revie review w co conf nfirm irmss the pos positi ition on whic which h I aasc scer erta taine ined d in my previo previous us repor reportt that that there there ha have ve be been en a numb number er of inst instan ance cess wher wheree reque request stss to use use the Act have been been refus refused ed becaus becausee the app applica lication tionss wer weree prematu premature, re, excess excessive ive or d did  id  not provid providee suffic sufficien ientt informa information tion..

In the light light of the proce procedure dure which which is followe followed  d 

withi within n An Garda Garda Sioc Siocha hana na in rela relatio tion n to the the 2009 Act, the numbe numberr of refu refusa sals ls sh shoul ould  d  rema remain in re reas ason onab ably ly smal smalll in num numbe ber. r. As all all appl applic icat ation ionss go thro throug ugh h on onee sect section ion an and  d  where whe re there there is alre already ady in place place a sset et pr proce ocedur duree which which will be formalise formalised d in an an inte interna rnall written wri tten Directiv Directive, e, it is unlikely unlikely that that there will be be a substa substantia ntiall number number of case casess where where applica app lication tionss by individu individual al Garda Garda for the m maki aking ng of an app applica lication tion for autho authorisa risation tion under und er sect sectio ion n 4 of the the Act Act will will be refus refused ed.. 2.10

  In the year year under under rev review iew An Garda Garda Siochana Siochana made made a n numb umber er of appli applicat cations ions

underr section unde section 4 and and authoris authorisatio ations ns were were granted granted under section section 5 by the Di Distr strict ict Court. Court. At the time time of my my first first report report a numb number er of ca case sess wi withi thin n the above above ca cate tegor gory y were were

 

16

identif ide ntified ied as repres represent enting ing a small small double figure figure number. number. In the year year unde underr review review theree has been ther been a smal smalll inc increa rease se in the the numbe numberr of ssuch uch autho authoris risatio ations. ns.

The num number  ber 

increa inc reased sed by one one and the the total total number number in the year year under under review review remain remainss a smal smalll do doubl ublee figur figuree numbe number. r. This This ye year ar I adopte adopted d a diff differ eren entt proc proced edur uree in rel relat atio ion n to the the re revi view ew of thes thesee ca case ses. s. I disc discus usse sed d ea each ch of the the cas cases es wi with th senio seniorr offic officer erss fr from om An Garda Ga rda Sioch Siochan anaa an and d had iden identif tifie ied d to me th thee type of dev devic icee whic which h was was inv involv olved ed in each eac h case, case, the person person who or the place place or tthing hing that that was the subject subject of surve surveilla illance nce,, the nature nature of the operation, operation, the duration duration for whic which h it was granted granted,, the actu actual al expiry expiry da date te of the the surve surveill illan ance ce an and d whethe whetherr or not not the device device was was retr retriev ieved ed an and d if so on what what date. dat e. In all cases cases the doc docume umenta ntation tion relied relied upon for Distric Districtt Court Court auth authoris orisati ations ons was availa ava ilable ble and that that document documentatio ation n confir confirmed med in writing writing details details of the the specif specific ic

requi require reme ments nts la laid id do down wn in sectio section n 5(6) 5(6) of the the 2009 Act. The The ap appli plica catio tions ns were were made made to a number number of diffe differen rentt Distric Districtt Jud Judges ges and there there was no indicatio indication n of any any tende tendency ncy for for the appli applica catio tions ns to b bee direc directe ted d tow towar ards ds an any y partic particul ular ar Distr Distric ictt Ju Judge dge.. From From the docume doc umenta ntation tion it was was apparen apparentt that in each each an and d ever every y ins instan tance ce where where an aappro pproval val was gran grante ted d that that the ap appli plica catio tion n lead leading ing to suc such h ap appr prova ovall ha had d be been en made made on an informa info rmation tion on oath oath in a set format format as iden identifi tified ed in St Statut atutory ory Instrum Instrument ent No. 360/20] 360 /20] 0, subject subject to the individ individual ual facts facts of a particu particular lar case. case. Inva Invaria riably bly the inf informa ormation tion on oath oath was sworn sworn by the same senior senior Gar Garda da off office icerr who has operation operational al respons res ponsibil ibility ity for the instal installati lation, on, use and monit monitorin oring g of surve surveilla illance nce dev device ices. s. The The proc proced edur uree provi provide ded d for for in sect sectio ion n 5 of the 2009 2009 Ac Actt provide providess that that an authoris auth orisati ation on can only be issued issued by a Distr District ict Cour Courtt and sub-sec sub-section tion (4) of that that section section  provides that:

 

17

"Thee judge "Th judge shall shall not iss issue ue an authorisa authorisation tion if he he or she is sa satisf tisfied ied that that the surveil sur veillan lance ce bei being ng sought sought to be be author authorise ised d is likel likely y to relate relate primari primarily ly to commun com munica ication tionss protec protected ted by privil privilege ege", ", Section Sec tion 5 also also provid provides es that an authori authorisat sation ion under under that section section has a maxim maximum um du dura ratio tion n of thr three ee months months fr from om the day day upon which which it is is issue issued. d. It was was only on four  four  occasi occ asions ons that that an authoris authorisatio ation n was granted granted for the maximu maximum m period period of tthre hreee mont months. hs. In eac each h of thos thosee insta instanc nces es,, from from my examina examinatio tion n ofthe ofthe reco record rdss an and d fr from om my discuss disc ussions ions with senior senior member memberss of An Garda Garda Siochan Siochana, a, it was was appare apparent nt that that all four  cases cas es repres represente ented d long-te long-term rm investig investigati ations ons into orga organise nised d crimina criminall and subve subversiv rsivee activit act ivities ies..

In only only one instance instance was the device device actual actually ly in plac placee for the full three three

month mo nth pe peri riod. od. In on onee of the the four four ca case sess the de devi vice ce co could uld not be deplo deploye yed. d. In two two of the four cases cases where the authoris authorisatio ation n extend extended ed to the the maximu maximum m three three mont month h period, period, the device dev ice was retriev retrieved ed duri during ng the tluee tluee month month period period as the cir circum cumsta stance ncess givi giving ng rise rise to the autho authorisa risation tion had alter altered. ed. Some Some of the autho authorisa risation tionss the durat duration ion provided provided for  wass as a numb wa number er of hou hours rs wher wheree the devic devicee was was targ target eted ed at an antic anticip ipat ated ed ev even entt or  happen hap pening ing which which was envisag envisaged ed as en entire tirely ly taking taking place place with within in a short short tim timefr eframe ame.. 2.11 2.11

Ther Theree were were a smal smalll numbe numberr (less (less tha than n ten) ten) of appl applic icat ation ionss for for var varia iatio tion n or 

re rene newa wals ls of auth authori orisa satio tions ns under under sect section ion 6 of the the Act Act during during the yea year. r. They They we were re all made ma de to the the Court Court an and d were were for rene renewa wals ls wher wheree the earlie earlierr orde orders rs were were discl disclose osed d to the Court. 2.12 2.1 2

Sect Sectio ion n 7 of the A Act ct prov provide idess for for appr approva ovall for for surve surveill illan ance ce in ca case sess of urgen urgency cy..

Approva Appr ovals ls under under that that sec section tion are n not ot subject subject to conside considerat ration ion by the Distric Districtt Court. Court. Theref The refore ore,, as was was the case with my previou previouss report, report, I pai paid d partic particula ularr reg regard ard to those those st

ap appro prova vals ls du durin ring g my revi review ew.. In the year year to the the   31 Jul July, y, 2011 the there re was a reductio reduction n of almo almost st 20 20% % in such such approv approval alss fr from om the prev previo ious us ye year ar.. All the docum documen enta tatio tion n an and  d 

 

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record rec ordss relati relating ng to suc such h approval approvalss were were made availabl available. e. The number number of approva approvals ls grante gra nted d in the the ye year ar was in the the small small double double figur figuree range range.. Sect Section ion 7, ssub ub-s -sec ectio tion n (8)  provides that approval for surveillance under section 7 shall not be carried out for a  period of more than 72 hours from the time at which the approval is granted. The urgen urg entt na natur turee of the the appr approva ovals ls was was dem demons onstr trat ated ed by the fact that that out of all all the ap appro prova vals ls gran grante ted, d, on only ly two were were for the m max axim imum um 72 hour hourss an and d over half half were were for for a  period ofa short number of hours. Due to the urgent nature of the approvals, the vast majorit maj ority y relate related d to audio audio survei surveillan llance ce only an and d only in a sma small ll number number did the ap appro prova vall al also so cover cover the use of a cam camer era. a. The The ma main in area area of inves investig tigati ation on rela relate ted d to subvers subv ersive ive activit activities ies but the the ap appro provals vals also also cove covered red other other crimina criminall activit activities ies.. From From my examina examinatio tion n of the the docu docume ments nts an and d records records it was was cl clea earr tha thatt th thee nature nature of th thee

investig inve stigati ations ons and the the locations locations of the the opera operation tionss and the dura duration tion for whic which h suc such h approva app rovals ls were were granted granted establ establishe ished d that that the inform informati ation on con concer cerning ning the potent potential ial locatio loc ation n for survei surveillan llance ce had only lately lately becom becomee availa available ble and the the pro propose posed d use or  happen hap pening ing for which which such such survei surveillan llance ce was re requir quired ed was so iimmi mminen nentt that that the there re was no real real opport opportuni unity ty to apply apply to court court for au auth thori orisa satio tion n under under sect section ion 5. The The docume doc uments nts and reco records rds establi establishe shed d that that urgent urgent approvals approvals were were require required d in cir circum cumsta stance ncess where where informa information tion cry crysta stallis llised ed as to the poten potential tial locati location on or event event which whic h was to be the subject subject of survei surveillan llance ce immedi immediate ately ly prior prior to the actua actuall intende intended  d  surveillance. In my first first repo report rt I forme formed d the vie view w tha thatt sect section ion 7 appro approva vals ls were were be bein ing g us used  ed   by An Garda SiochAna in circumstances where there was neither time nor  cir circum cumsta stance ncess which which would would allow allow or permit permit for an aappli pplicat cation ion under under sec section tion 4 to ob obta tain in an autho authoris risat atio ion n un unde derr sect section ion 5. My exami examina natio tion n of the the recor records ds an and  d  docum doc umen ents ts co conf nfirm irmss that that that remai remains ns the the situat situation ion.. An Ga Garda rda Sioch Siochan anaa co conti ntinue nue to

 

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mainta mai ntain in a written written rec record ord of appro approval valss grante granted d unde underr section section 7 whic which h provide providess  particulars of the surveillance device, the person, place or thing that is to be the su subje bject ct of the the su surv rvei eilla llanc nce, e, the na name me of th thee mem membe berr of An Garda Garda 8ioch 8iochan anaa to whom whom such suc h approval approval is grante granted d and the con conditi ditions ons imposed imposed on such appr approva ovall includi including ng the time at which which such such approval approval is gran granted ted and the duration duration for which which approval approval is gran granted ted.. 2. 2.13 13

As w was as the the case case in the prev previou iouss ye year ar whic which h I revie reviewe wed, d, the main main use of  of 

surveil surv eillanc lancee device devicess by An Gard Gardaa Siocha Siochana na was the use use of trackin tracking g devices devices.. Such Such use is approv approved ed unde underr section section   8   of the the Act. Act. In the the pr prev eviou iouss ye year ar track tracking ing de devic vices es ha had d be been en approve app roved d for use on a substan substantia tiall number number of oc occas casions ions,, the number number of suc such h approva approvals ls  being less than one hundred. There was a very slight increase in the number of  approva app rovals ls in the the year under under conside considerat ration ion but the the overall overall figure figure remained remained les lesss than one hundr hun dred ed.. The The use of trac trackin king g de devic vices es as opp oppos osed ed to audio audio or video video su surv rveil eilla lanc ncee is less less int intrus rusive ive..

Give Given n that that pa part rt of the statut statutor ory y requi require reme ment nt un unde derr sect section ion 4 is tha thatt when when an

office off icerr making making an applic applicati ation on for an an author authorisa isation tion for audio audio and/or and/or video survei surveillan llance ce mustt be satisfie mus satisfied d that that it iiss tthe he least intrusiv intrusivee means means ava availab ilable, le, it is is to to be expect expected ed tha thatt there the re will be more more approva approvals ls grante granted d under under section section   8   than author authorisa isation tionss under under section section 5 or or ap appro prova vals ls un unde derr sect section ion 7. The The total total number number of auth authori orisa satio tions ns under under sect sectio ion n 5 and appro approval valss under under section section 7 added added toget together her amounts amounts to cons conside iderab rably ly les lesss than half  half  of the appro approva vals ls gran grante ted d under under sect sectio ion n 8. It is aals lso o th thee ca case se that that no nott on only ly are are trac trackin king g device dev icess les lesss intrusiv intrusivee but they involve, involve, in most most instanc instances, es, the re requir quireme ement nt to use less less manpow man power er than audio audio or vide video o device devicess and that that fact fact provides provides a furt further her exp explan lanatio ation n for  the greate greaterr use of section section 8 than than other other section sectionss of the Act. 2.14 2.14

Appr Approva ovall for tr trac ackin king g de devi vice cess does does not not req requir uiree an any y ap appli plica catio tion n to cou court rt and and a

memb me mber er or offic officer er ca can n ap apply ply to a super superio iorr offic officer er for for the gran grantt of an appr approva ovall to use use a tracki tracking ng device device provide provided d the requ require iremen ments ts laid down down in section section 8, subsub-sec section tion (2) of  of 

 

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the Act Act ar aree met. met. In ca carr rryin ying g ou outt this revie review w I pai paid d pa part rtic icula ularr rega regard rd to sectio section n 8, subsection sec tion (2) (2),, sub-s sub-sect ection ion (b) which which places an obl obliga igation tion on a mem member ber app applyin lying g for  approv app roval al for the the use of a trackin tracking g device device has to have reas reasona onable ble grounds grounds tha thatt the informa info rmation tion or eviden evidence ce sought sought could could reason reasonabl ably y be obt obtain ained ed by the use of a tracking tracking device dev ice for a specif specified ied per period iod that that is aass sho short rt as is pract practica icall to allow allow the inform informatio ation n or  ev evide idenc ncee to be obtain obtained ed.. I there therefor foree ha had d regar regard d to the the du dura ratio tion n of use grant granted ed in sect section ion 8 aappr pprov oval als. s.

I look looked ed at tthe he perio period d for for which which au autho thoris risat ation ion was was gran grante ted d in

ev ever ery y ca case se.. In less less than than 20 20% % of the the cas cases es the durat duration ion grante granted d wa wass for for the maxi maximu mum m four four month month pe peri riod. od. In alm almos ostt ha half lf the insta instanc nces es wher wheree th thee four four mon month th pe perio riod d was was grante gra nted. d. the device device was in fact fact deactiva deactivated ted and retrie retrieved ved with within in the four month month per period. iod. From Fro m my exam examina ination tion of the the docume documents nts and recor records ds it wa wass apparent apparent that that the duration duration

grante gra nted d varied varied dependin depending g upon the the nature nature of the the surveilla surveillance nce which which was require required d and  the place place where where such such device device was to be locate located. d. Section Sec tion 8, sub-se sub-sectio ction n (9) of the the Act states: states: ••A supe superior rior officer officer who approve approvess the use of a tracki tracking ng dev device ice under under this section sec tion shall shall make make a report report as soon soon as possible possible and. and. in an any y case, case, not late laterr than than 7 days days after after its use has ended. ended. spe specif cifying ying the grounds grounds on w which hich the approva approvall wass gran wa grante ted, d, an and d inc includ luding ing a copy copy of tthe he writ writte ten n reco record rd of appro approva vall an and d a summar sum mary y of the results results of the monitor monitoring. ing."" In all all cases cases wher wheree the use use of the the tra track cking ing de devic vicee ha had d en ende ded, d, as of the date of my review rev iew,, the records records identifi identified ed that that fac factt and contain contained ed a report report to the the Assistan Assistantt Commiss Comm issione ionerr within within the statu statutory tory period period provid provided ed for in in sect section ion 8, subsub-sec section tion (9). (9). 2.15

  As part part of my revie review w for the yea yearr end ended ed 31 st   Jul July, y, 2011, 2011, I identif identified ied a sma small ll

numbe num berr of case cases, s, wher wheree I arra arrang nged ed to revie review w not only the rec recor ords ds rela relatin ting g to the authori aut horisat sation, ion, approva approvall and use o off surve surveilla illance nce device devicess but also also the the records records and 

 

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docume doc uments nts of the the inves investiga tigation tion file incl includin uding g audio audio and vide video o rec records ords.. The ca cases ses where whe re I carrie carried d out such revie review w were were chosen chosen randoml randomly y by refere reference nce to an I.D. num number  ber  in the the records records kept kept by An Gard Gardaa Sfocha Sfochana. na. The first first case case whic which h I review reviewed ed con contai tained  ned  extens ext ensive ive audio audio records. records. That That case, le led d to a prosecu prosecution tion and theref therefore ore I can cannot not deal deal with with it furt furthe herr at this this stage. stage. Anothe Anotherr ca case se,, whic which h I revi review ewed ed,, co conc ncer erne ned d a sect section ion 5 au autho thoris risat ation ion for the the use of vid video eo an and d audio audio surve surveill illan ance ce..

The The do docu cume ments nts,, reco record rdss an and  d 

file identif identified ied that the de devic vicee was placed placed in accorda accordance nce with the authoris authorisatio ation n and tha thatt no ac activ tivity ity took took pla place ce until until almo almost st the end end of the the one mont month h pe perio riod d for for whi which ch authori aut horisat sation ion had been been approv approved. ed. Since Since that that ac activi tivity ty relate related d to matter matterss dif differ ferent ent from from the apprehe apprehende nded d illegal illegal act activit ivity y env envisa isaged ged at the time time of the the authorisa authorisation tion,, the survei sur veillan llance ce was disconti discontinue nued. d.

One of the other other cases cases which which I ran random domly ly select selected  ed 

re rela late ted d to an authori authorisa satio tion n provid provided ed un unde derr sect section ion 5 for for the use of au audio dio and video video survei sur veillan llance ce and an examina examination tion of the docum document entss and reco records rds ide identif ntified ied that that for  op oper erat ation ional al re reas ason onss the devic devicee was was no nott in fact fact de deplo ploye yed. d. I als also o revi review ewed ed the do docu cume ments nts,, re reco cords rds,, file file and video video produ product ct aris arising ing ou outt of a sec sectio tion n 7 app appro rova val. l. That That ap appr prova ovall ha had d be been en gran grante ted d for for a perio period d of 72 hour hourss an and d du durin ring g tha thatt pe perio riod d the vid video eo re reco cord rded ed a nu numb mber er of ma matte tters rs.. As tha thatt inves investig tigat ation ion is on ongoi going ng an and d since since the period period of  authori aut horisat sation ion provide provided d under under section section 7 has long since elapse elapsed, d, it is not not appropr appropriate iate to further fur ther commen commentt on tha thatt pa partic rticular ular case. case. 2.16

  Du Durin ring g my revi review ew of An Ga Gard rdaa Sfoc Sfocha hana na's 's use of sec sectio tions ns 4 tto o 8 of the Ac Act, t,

nothin not hing g ca came me to my attenti attention on that that would would su sugg gges estt an any y im impro prope perr or inap inappro propr pria iate te use an and d the proce procedur dures es ad adop opte ted d an and d fol follow lowed ed by An Garda Garda Sio Sioch chan anaa en ensur suree that that the docume doc umentat ntation ion require required d by the the Act is kept kept in a cent central ral locatio location n and is readily readily availab available le for review.

 

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3.

The The Reve Revenu nuee Comm Commis issi sion oner erss

3.1

In October    2011   I visited visited the Investiga Investigation tionss and Pro Prosec secutio ution n Division Division of the the

Revenue Reve nue Commiss Commissione ioners. rs.

I met with with an assista assistant nt secret secretary ary and an anothe otherr senior senior official official

who had availab available le all the necess necessary ary and releva relevant nt docume documenta ntation tion and reco records rds of tthe he use made ma de by the the Reven Revenue ue Comm Commis issio sione ners rs of su surv rvei eilla llanc ncee de devic vices es un unde derr the Act. Act. The The Revenu Rev enuee continu continuee to use a syst system em whereb whereby y all opera operation tionss under under the Act ar aree made made through thro ugh one offic officee and are are made using the inst instruc ruction tion manual manual on the the Criminal Criminal Justic Justicee (Surv (Survei eilla llanc nce) e) Act Act 2009 2009 whic which h was was issu issued ed by the Reve Revenue nue Comm Commis issi sione oners rs in July July of  20 10. That That instruc instruction tion manual manual remains remains in force force and it provide providess that that any applic applicatio ation n for for use by a Reven Revenue ue offic officia iall of a su surve rveill illan ance ce de devic vicee in su suppo pport rt of an inve invest stiga igatio tion n or 

Reve Revenu nuee op oper erat ation ion must must be grou grounde nded d on an appl applica icatio tion n for for su such ch use whic which h must must be submitt sub mitted ed through through a principa principall officer officer to one one of the officers officers nomi nominat nated ed for that that purpose purpose.. There The re are tw two o nominat nominated ed off office icers rs who are princip principal al office officers. rs. Tha Thatt system system ensur ensures es that all all the recor records ds in rela relatio tion n to the the us usee by the the Revenue Revenue of th thee provi provisi sions ons of the the 200 2009 9 Ac Actt ar aree su supe perv rvise ised d by a small small numbe numberr of senio seniorr pe pers rsonn onnel el who who are are resp respons onsibl iblee for for the mainten mai ntenanc ancee and prese preserva rvation tion of the necess necessary ary records records.. 3. 3.2 2

I exam examin ined ed the the rrec ecor ords ds and d doc ocum umen ents ts in th thee prem premis ises es ofth ofthee Inve Invest stig igat atio ion n and  and 

Prosecu Pros ecution tionss Divi Division sion of the Revenu Revenuee Com Commis mission sioners ers and all all the docum document entss and  record rec ordss relatin relating g to the use and operat operation ion of the Act by the Revenu Revenuee Comm Commiss issione ioners rs during duri ng the releva relevant nt period period were were availabl availablee for my review. review. 3.3 3.3

Duri During ng the the year year un unde derr revi review ew the the pro provi visi sion onss of sect sectio ions ns 5 and and 8 of th thee Act Act

were we re us used ed by the the Revenu Revenue. e. Sect Section ion 8 pro provid vides es for the use use of track tracking ing de devic vices es an and d the vastt majority vas majority of uses uses by the Reven Revenue ue relate related d to track tracking ing device devicess rath rather er than author aut horisa isation tionss und under er section section 5. The numb number er of appr approva ovals ls and/or and/or authori authorisat sations ions

 

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grante gra nted d under under s. 5 was was very limited. limited. I was th there erefore fore able able to review review the docume documentat ntation ion of the the use of se sect ction ion 5 of of th thee Act Act by the Reve Revenue nue during during the year. year. I eexa xami mine ned d th thee docume doc umentat ntation ion and recor records ds in rela relation tion to secti section on 5 use an and d they confirmed confirmed that that the re requi quire reme ments nts of sec sectio tion n 5 were were fulf fulfill illed ed.. The The recor records ds we were re retaine retained. d. The The numbe numberr of  au auth thori orisa satio tions ns were were almo almost st iden identic tical al to the the prev previou iouss tw twel elve ve month months, s, In rela relatio tion n to the use of sect section ion 5 the particu particular larss of the the survei surveillan llance ce dev device ice was identif identified ied as was was the  person, place or thing which was to be the subject of surveillance.

In one case the

 papers relating to a section 5 authorisation demonstrated that the container which was the sub subje ject ct of the the author authoris isat ation ion ha had d a jamm jammer er or jamm jamming ing de devic vicee at atta tach ched ed.. The The  presence of that jammer meant that whilst the tracking device operated and provided  informa info rmation tion and produc product, t, that that the aaudio udio compone component nt of the the device device failed failed to opera operated ted.. 3.4 3.4

No use use of sect sectio ions ns 6 or or 7 of the the Act Act was was made made by the the Reve Revenu nuee Co Comm mmis issi sion oner erss

during duri ng the period period under under review review.. 3.5 3.5

Ther Theree were were a numb number er of appr approv oval alss for for the the use use of tr trac acki king ng devi device cess unde under  r 

sect sectio ion n 8, I re revie viewe wed d pa pape pers rs an and d docume documents nts in rel relat ation ion to each each of the insta instanc nces es in resp respec ectt of which which ap appro prova vall was was gran grante ted. d. Thes Thesee ca case sess inclu include ded d cu custo stoms ms an and d ex exci cise se ca case sess an and d tax fraud fraud with with the the major majority ity rela relatin ting g to custom customss an and d ex exci cise se.. The The rec record ordss mainta mai ntained ined identifi identified ed the par partic ticular ularss of the trac tracking king dev device ice tha thatt was approve approved, d, the  person, vehicle or thing that was to be monitored, the officer of the Revenue Commiss Com missione ioners rs to whom the approva approvall was grant granted, ed, the condi condition tionss includi including ng the durat dur atio ion n in resp respec ectt of whic which h ap appr prova ovall was was grante granted d an and d the time at whi which ch such such ap appr prova ovall was was grante granted. d. In all all but but one cas casee where where track tracking ing de devi vice cess were were approv approved ed the re reco cords rds indic indicat ated ed that that it p prov roved ed possi possible ble to deplo deploy y a tr trac acki king ng de devic vice. e. In one one case the tracki tracking ng device device was not deplo deployed yed and the the re recor cords ds indi indicat cated ed tha thatt there had been been no opport opp ortuni unity ty to depl deploy oy it on on the vehic vehicle le whic which h was was to be mo monit nitore ored. d.

It was was there therefor foree

 

24

appare app arent nt that that prior to seeking seeking approv approval al that that considera consideration tion had been given as to the  practicality of the deployment of a tracking device and that applications for approval weree made in circu wer circumst mstanc ances es whe where re real real conside considerati ration on had been been given to the  practicalities of the use and operation of a tracking device. The majority of tracking de devi vice cess were were de deplo ploye yed d on vehi vehicl cles es or tthi hings ngs that that were were be being ing monit monitore ored d in respe respect ct of  the ille illegal gal importa importation tion of goods goods into this this country country,, particu particular larly ly cigare cigarette ttes. s.

Section Section 8,

sub-sec subsection tion (2) of the Act require requiress that that a membe memberr applyin applying g for a grant grant of app approv roval al mustt believ mus believee on reaso reasonab nable le grounds grounds certai certain n matter matters. s. In a sign signific ificant ant number number of cas cases es where whe re trac tracking king device devicess were were deployed deployed in respec respectt of fe feare ared d illegal illegal importa importation tion of  cigaret ciga rettes tes,, the out turn of the investig investigatio ation n res resulte ulted d in the seizure seizure of substa substantia ntiall numbers numb ers of cigaret cigarettes tes..

From the paper paperss that that I examine examined, d, I identif identified ied one instanc instancee

where whe re 4.6m cigare cigarettes ttes were were recovere recovered, d, anothe anotherr where where 205m cigare cigarettes ttes were were recove recovered red,, another ano ther whe where re 704m 704m cig cigare arettes ttes were were recovere recovered, d, anothe anotherr whe where re 9.5m cigarett cigarettes es were were recove rec overed red and anothe anotherr where where 7m cciga igaret rettes tes were were recove recovered red and also also anoth another er whe where re 4.2m 4.2m ciga cigare rette ttess were were reco recove vere red. d. In a n num umbe berr of instan instance cess in the Custom Customss an and d Exci Excise se investig inve stigati ations ons where where good goodss were not recove recovered red the paper paperss indicat indicated ed that that the vehicle vehicle or  thing thin g that that was being monitore monitored d crosse crossed d into Northe Northern rn Ire Ireland land and left the juri jurisdi sdictio ction. n. I also also examine examined d the file and and records records in relati relation on to an iinve nvestig stigati ation on bei being ng ca carr rrie ied d out of alleg alleged ed V AT fraud. fraud. I asc ascer erta taine ined d that that the duratio duration n of the appr approv oval al was was for for an ide ident ntifi ified ed pe perio riod d less less than than the m max axim imum um..

As that that inves investig tigat ation ion is co cont ntinu inuing ing I

will will ref refra rain in fr from om an any y furthe furtherr co comm mmen entt on tha thatt ca case se.. From From my discu discuss ssio ions ns with with the officia offi cials ls from from the Reve Revenue nue Comm Commissi issione oners rs and from from the docum documenta entation tion and recor records ds it was appare apparent nt that that in a number number of case casess where where approv approvals als had been been gra grante nted d for trackin tracking g device dev icess that that the investig investigati ations ons had progre progresse ssed d to the the stage that papers papers had been sent sent to the Director Director of Public Public Prosecu Prosecution tionss with a view view to criminal criminal prosec prosecutio utions. ns.

 

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3.6 3.6

Gi Give ven n the nat natur uree of smug smuggl glin ing g and and tthe he iill llic icit it im impo port rtat atio ion n of good goodss in into to th thee

 jurisdiction and the efforts made to avoid the payment of duties and taxes, it is not su surp rpris rising ing that that the major majority ity of the the use ofthe ofthe provis provision ionss ofthe ofthe Ac Actt by the Reven Revenue ue re rela late tess to tra track cking ing de devic vices es.. The The record recordss an and d ex expla plana natio tions ns fr from om the Custom Customss an and  d  Excise Exc ise show that that informa information tion become becomess availab available le which which make make it p proba robable ble tha thatt goods ar aree being being smug smuggle gled d into into the co count untry. ry. In an an atte attemp mptt to monit monitor or th thos osee goo goods ds track tracking ing de devic vices es ar aree app approv roved ed.. The The area areass of inve invest stiga igatio tion n whic which h Custo Customs ms an and d Excise Excise were were involve invo lved d in incl include uded d the illeg illegal al importa importation tion of tobacco tobacco,, the imp importa ortation tion of chem chemica icals ls to assist assist in the the laundering laundering of diese diesel, l, the illegal illegal importa importation tion of drugs drugs and the the avoidance avoidance of tax tax in respe respect ct of alco alcoho hol. l. The The seiz seizure ure of sub subst stan antia tiall quanti quantitie tiess of goods goods in case casess where whe re tracki tracking ng device devicess wer weree approved approved is suppo supportiv rtivee of a con conclus clusion ion that that tracki tracking ng device dev icess are only approved approved where where the there re are rreas easona onable ble grounds grounds for believ believing ing that that su surv rvei eilla llanc ncee is justif justifie ied. d.

As point pointed ed ou outt in my pre previ vious ous repo report rt the cost cost an and d manpo manpowe wer  r 

involve invo lved d in the use use of track tracking ing device devicess and, and, in part particul icular, ar, sur surveil veillan lance ce device devicess is su such ch that that the the us usee of such such de devic vices es is ccar aref efull ully y targe targete ted d an and d is only only in initi itiat ated ed when when there there are are clear cle ar gro grounds unds for just justifyi ifying ng the use of such such sur survei veillan llance ce device devices. s. 3.7 3.7

I was was abl ablee to rev revie iew w all all the the ca case sess wher wheree the the Act Act w was as used used by the the Rev Reven enue ue

during dur ing the the year in questi question. on. Ther Theree was was a writt written en reco record rd of appr approv oval al co cons nsis iste tent nt wi with th sect section ion 8, sub-s sub-sec ectio tion n (7) (7) of the Act Act in each each an and d ev ever ery y insta instanc nce. e. Ther Theree wa wass av avai aila labl blee informa info rmation tion and recor records ds to conf confirm irm that such track tracking ing device devicess wer weree approve approved d whe where re ther theree we were re reason reasonab able le groun grounds ds to do do so. Durin During g my rev revie iew w no nothi thing ng ca came me to my atte at tent ntion ion wh whic ich h would would su sugg gges estt an any y im impro prope perr or inap inappro propri priat atee us usee of sec sectio tions ns 4 tto o 8 of  the Act by the Reve Revenue nue Commissi Commissione oners rs and it rema remains ins the po positi sition on that that the procedur procedures es whic wh ich h ar aree in pla place ce provi provide de for a ccon onsi siste stent nt an and d target targeted ed us usee of the the provis provision ionss of the the Act.

 

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4.

The Defence Forces

4.1

In Octob October er 2011 2011 I met met with with the D Dire irect ctor or of Int Intel ellig ligen ence ce an and d th thee desi designa gnate ted  d 

offic off icer er to revie review w the opera operatio tion n of sectio sections ns 4 to 8 of the the Ac Actt by the Defenc Defencee Forc Forces es in the twel twelve ve month monthss up to the the 31 st   July,   2011,   There There was ava availa ilable ble to me the docum document entss and recor records ds kept kept by the the Defence Defence Forces Forces in rrela elation tion to th thee occasio occasions ns upon whi which ch authori aut horisat sations ions and approva approvals ls were were grante granted d or iss issued ued during the year. year. I rec receive eived d full and detail detailed ed explan explanatio ations ns in re relati lation on to all matte matters. rs. 4.2 4.2

In the the yea yearr unde underr revi review ew ther theree had had been been a marg margin inal al in incr crea ease se in th thee u usa sage ge by

the Defenc Defencee Forces Forces of the the provis provisions ions of the Act. Act. In ever every y ins instan tance ce when when sur surveil veillan lance ce wass ca wa carri rried ed ou outt un unde derr the prov provisi isions ons of the the Ac Actt it was was carrie carried d out follo followin wing g a sect section ion 4

ap appli plica catio tion n to the the Distric Districtt Court. Court. Those Those applic applicat ation ionss we were re made made av avai aila labl blee to m mee and it was apparen apparentt from those docume documents nts and the matters matters disclos disclosed ed tha thatt the propose proposed  d  subjec sub jectt of the surve surveilla illance nce and the the means means of surveill surveillanc ancee wer weree identif identified ied.. Eve Every ry time an applic applicatio ation n for autho authoris risatio ation n was made made under section section 4 an authori authorisat sation ion was ob obta taine ined d fr from om the Dist Distric rictt Court. Court. The The infonn infonnat ation ion av avai aila labl blee de demo monst nstra rate ted d that that followi following ng such such authori authorisat sation, ion, survei surveillan llance ce was carrie carried d out cons consiste istent nt with the author aut horisa isation tion..

In every every instance instance the author authorisa isation tion was in writing writing and spec specifie ified d the

 particulars of the type of surveillance devices which were to be used, the person or  thing thin g that was to be the subject subject of the surveillan surveillance ce   the na name me of the superi superior or officer officer to J

whom it was was iss issued  ued    the the du dura ratio tion n of the the au auth thori orisa satio tion n an and d the da date te of ex expir piry y of the the J

authori aut horisat sation. ion.

In all all instanc instances es the period period of autho authoris risatio ation n was less than than the thre threee

month mo nth maxim maximum um pe peri riod od provi provide ded d for for in the the Act. Act. The The period period so soug ught ht an and d obtaine obtained  d  varied var ied depen depending ding upon upon the in indivi dividua duall circum circumsta stance ncess involve involved. d.

 

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4.3

 

The proce procedur dures es operate operated d by the Defenc Defencee Forces Forces is that that each each and eve every ry

applica app lication tion under under the Act is under under the direct direct control control and supervisi supervision on of the desi designa gnated  ted  officer offi cer and in every every instanc instancee it was the designa designated ted officer officer who swore the nec necess essary ary oa oath th in suppo support rt of the the ap appli plica catio tion n for for authori authorisa satio tion. n.

He was was al also so presen presentt in pers person on

when wh en the ap appli plica catio tions ns were were made made to the the Dist Distric rictt Court. Court. In each each in insta stanc ncee wh when en authori aut horisat sation ion was obt obtaine ained d by the Defen Defence ce Forces Forces a surve surveilla illance nce dev device ice was deplo deployed yed.. Ther Theree were were no applic applicat ation ionss by the the Defenc Defencee Forc Forces es un unde derr pa para ragr grap aph h 6 ofthe ofthe Act Act for  variati var iation on or a renewa renewall of autho authoris risatio ation, n, nor wer weree there there any app approva rovals ls grante granted d unde under  r  sect section ion 7 in re resp spec ectt of survei surveilla llanc ncee in case casess of urge urgenc ncy. y. The The onl only y insta instanc ncee of the the use of a tra track cking ing de devic vicee by the Defe Defenc ncee Forc Forces es was was in resp respec ectt of one one of th thee sectio section n 4 applic app licatio ations. ns.

That That applic applicatio ation n and the autho authorisa risation tion grante granted d in the Distr District ict Court Court was

in resp respec ectt of vide video, o, au audio dio an and d a track tracking ing de devic vice. e. No ap appro prova vals ls pu purs rsua uant nt to s. 80fth 80fthee 2009 Act were grante granted d during during the year year under under review review.. 4.4

 

Due to the relativ relatively ely sma small ll number number of occasi occasions ons upon which which surve surveilla illance nce was

ca carri rried ed ou outt by the Defen Defence ce Forc Forces es pu purs rsua uant nt to the Act, Act, I was was ab able le to rev revie iew w ev ever ery y case.   In   aall ll instan instances ces the circums circumstan tances ces giving giving rise rise to the ap applic plicatio ations ns and  authori aut horisat sations ions for surve surveilla illance nce were were matter matterss impactin impacting g upon and for for the purp purpose ose of  mainta mai ntainin ining g the security security of the the State. State. In aall ll case casess there there was an in inter ternati nationa onall dimensi dime nsion on to the survei surveillan llance. ce. 4.5

 

As is ap appa pare rent nt fr from om the for foreg egoin oing, g, my revie review w co conf nfirm irmed ed tha thatt in ea each ch and 

every eve ry instanc instancee a Distric Districtt Justic Justicee was satisf satisfied ied to grant grant an autho authoris risatio ation n under under section section 5 and tha thatt the surveilla surveillance nce carrie carried d out thereaf thereafter ter was co conse nseque quent nt upon such au autho thoris risat ation ion..

The The order orderss pe perm rmitt ittin ing g su such ch su surv rvei eilla llanc ncee were were av avai ailab lable le for for revie review. w. I

receiv rec eived ed full aand nd compre comprehen hensive sive co-ope co-operati ration on from the De Defen fence ce Forces Forces in rela relation tion to my revie review w an and d all all and an any y do docu cume menta ntatio tion n that that I req reque uest sted ed wa wass made av avai aila lable ble.. I w was as

 

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 provided with detailed explanations and information concerning each and every instanc inst ancee when when sunreil sunreillanc lancee was carri carried ed out by the the Defence Defence Forces Forces pur pursua suant nt to the the  provisions of the Act. During my review nothing came to my attention in relation to the Defen Defence ce Forces Forces use ofth ofthee Act which which would suggest suggest any impro improper per or ina inappro ppropria priate te us usee of the the provis provision ionss of sect sectio ions ns 4 to 8 of of the Act. Act.

5.

Conclusions

5. 5.1 1

As is is appa appare rent nt from from the the cont conten ents ts of this this re repo port rt,, each each o oft fthe he th thre reee par parti ties es

en entit title led d to avail avail of the prov provisi isions ons of sectio sections ns 4 to 8 of the the Ac Actt ha have ve pu putt in pla place ce  procedures to ensure that all use is directed through a designated person, section or   branch. This ensures that the documentation and records concerning such

survei sur veillan llance ce are readi readily ly availa available ble at the ti time me of review review.. All and and any documen documentati tation on thatt I sou tha sought ght was was made made av avai aila lable ble an and  d   1 was free to choose choose at random random any appli applicat cation, ion, au auth thori orisa satio tion n or approv approval al for for co cons nside idera ratio tion. n.

It was was al also so the ca case se that when when I sough soughtt

from fro m senio seniorr office officers rs or offic officials ials explan explanati ations ons in relati relation on to the implem implement entatio ation n of the the surveil surv eillanc lancee and the outturn outturn or product product thereb thereby y gen genera erated, ted, that that det details ails and inform informati ation on weree readily wer readily and openly openly provide provided d togethe togetherr with any any documen documentat tation, ion, recordi recording ng or  video that was requested. 5.2 5.2

It re rema mains ins the ca case se that that the the ccost ost an and d man manpow power er co conun nunitm itmen entt of su sunr nrei eilla llanc ncee

ca carr rrie ied d ou outt un unde derr the Act is such such that that its usage usage is llim imite ited d by the the co cost stss involv involved ed in such such survei sur veillan llance. ce. It follow followss that that sinc sincee there there is a conside considerab rable le cost cost and m manp anpowe ower  r  commitm com mitment ent invo involve lved d in carryin carrying g out sunre sunreilla illance nce unde underr the Act, Act, that the the occasi occasions ons upon upo n which such such sunrei sunreillan llance ce are ca carrie rried d out are are occ occasi asions ons which which have have been care carefull fully y conside con sidered red both as to suitabil suitability ity for deploym deployment ent and the requir requireme ement nt for surve surveilla illance nce.. Thiss self-lim Thi self-limitin iting g process process results results in surve surveilla illance nce under under the Act Act being being limi limited ted to

 

29

signifi sig nifican cantt cases cases involvi involving ng the commis commission sion of crim crimee or the pr preve eventio ntion n of the co comm mmis issi sion on of crime crime or the the main mainte tena nanc ncee of the the secur security ity of the the State State.. The The cost also ensure ens uress that that from a practic practical al poin pointt of view view conside considerat ration ion would would always always hav havee to be given give n to less less technical technical and che cheape aperr forms forms of invest investiga igation tion or the the use of aalter lternat native ive means. mea ns. That That cons consider iderati ation on involves involves the use of other other and less less intru intrusive sive means means than surveil surv eillanc lancee under under the Act. Act. I hav havee al alre read ady, y, in my previo previous us repo report, rt, co comm mmen ente ted d on the the int introd roduc uctio tion n of the Statuto Sta tutory ry Instrum Instrument ent No. 360/2010 360/2010 which which has brought brought a proc procedu edural ral consis consistenc tency y to ap appl plic icati ations ons for for au auth thori orisa satio tions ns un unde derr sect section ion 5 aand nd that that co conti ntinue nuess in forc force. e. I hav havee al also so  pointed out that it is envisaged that by the end of this year, An Garda Siochana will havee iss hav issued ued a Head Headqua quarte rters rs Direct Directive ive in relatio relation n to the the operati operation on of the Ac Actt which which can

 be accessed by all Gardai on the Garda portal. The Revenue Commissioners operate underr an instr unde instructi uction on manual manual and th thee Defe Defence nce Forces Forces ope operat ratee unde underr the d dire irect ct control control and supervis supervision ion of the Directo Directorr of Intellig Intelligenc encee who pe perso rsonal nally ly supervis supervises es and direct directss all and and any usage usage by the Defence Defence Forces Forces of survei surveillan llance ce under under the Act. As ind indic icat ated ed ea earl rlie ierr in this this repo report, rt, the Act Act ha hass now been in oper operat ation ion for for a suffic suf ficient iently ly long period period of time time that the first crimina criminall trials trials involvin involving g the use of th thee Actt ar Ac aree likel likely y to occur occur be befo fore re the end of this this ye year ar.. Any Any ma matte tters rs which which aris arisee in rela relatio tion n to the the ad admis missi sibil bility ity of evide evidenc ncee or the the provi provisio sions ns ofthe ofthe Act Act within within those those trials trials are are a matter mat ter which which can be consi consider dered ed in future future reports reports.. It is approp appropriat riatee to re reite iterat ratee tha thatt I rece receive ived d full and and open co-operati co-operation on from the senior sen ior officers officers and officia officials ls in An Garda Garda Siochana Siochana,, the Re Reven venue ue Commis Commission sioners ers and  the Defe Defenc ncee Forc Forces es resp respon onsib sible le for the opera operatio tion n of the pro provis visio ions ns of the the Act. Act. This This has greatly greatly assiste assisted d me in th thee prepara preparation tion of my report report..

 

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Havin Ha ving g revie reviewe wed d the oper operat atio ion n of the Act Act as the de desi signa gnate ted d judge judge pursu pursuan antt to sect sectio ion n 12 of the the Act, Act, I ma make ke this repor reportt to the the Taoi Taoise seac ach h an and d co confi nfirm rm that that there there are are no otherr matter othe matterss relating relating to the operat operation ion of sec section tionss 4 to 8 of of the the Act whi which ch I conside consider  r  should be reporte reported. d.