REPORT PURSUANT TO SECTION 12 OF THE CRIMINAL JUSTICE (SURVEILLANCE) ACT 2009

The Government, at its meeting on the 30thSeptember, 2009, designated Mr.

Justice Kevin Feeneyas the designatedjudge pursuantto s. 12 of the CriminalJustice

(Surveillance) Act 2009 (the Act). By letter of the 14thOctober, 2009 the Minister for
Justice, Equality and Law Reform wrote to Mr. Justice Feeney informing him of the

fact that he was to be "the designatedjudge" under the Act.

Under section 12(3) the functions of the designated are to (a) keep under review the operation of sections 4 to 8, and

(b)

report to the Taoiseach from time to time and at least once every 12 months concerning any matters relating to the operation of those

sections that the designatedjudge considers should be reported.

Thepurpose the Criminal of Justice(Surveillance) 2009is identified its in Act

title where it states -

"An Act to provide for surveillance in connection with the investigation of arrestable offences, the prevention of suspected arrestable offences and the

safeguardingof the State against subversiveand terrorist threats,to amend the Garda SochnaAct 2005 and the Courts (SupplementalProvisions)Act 1961
and to provide for matters connected therewith."

The functions of the designated judge include keeping under review sections 4 to 8 of the Act. Section 4 provides for applications for authorisation for surveillance, section
5 provides for authorisation, section 6 provides for variation or renewal of

fl
authorisation, section 7 provides for approval for surveillance in cases of urgency and
section 8 provides for tracking devices.

The Act provides that surveillance may only be carried out by a member of An

Garda Siochana, the Defence Forces or an officer of the Revenue Commissioners in

accordancewith a valid authorisationissued by a judge of the DistrictCourt, or, in

certain limited circumstances, in accordance with an approval issued by a senior officer of a designated rank. Surveillance is defined in s. 1 of the Act to mean:
"(a) monitoring, observing, listening to or making a recording of a particular person or group of persons or their movements, activities
and communications or

(b)

monitoring or making a recording of places or things,

by or with the assistance of surveillance devices."

Surveillance device is defined in the same section as "an apparatus designed or adapted for use in surveillance" and certain apparatus are expressly excluded as being
surveillance devices for the purpose of the Act. The legislation was enacted in

circumstances where non-trespassory surveillance that is not specifically authorised

by statute had been found by the EuropeanCourt of HumanRightsto be unlawfuland

in breach of the rights to privacy under the Convention. The 2009 Act provides
statutory authorisation for non-trespassory surveillance in identified circumstances.

As this is the first report under the Act, it is appropriateto provide a brief
overview of sections 4 to 8 of the Act which are the sections the subject of this report. The starting point is that before any surveillance may be validly carried out, it is

necessaryto obtain an authorisationeither from the District Court under section 5 or in cases of "urgency" surveillancemay be carried out without Court authorisationif it
has been approved by a superior officer in accordance with section 7 and surveillance

3 carried out under that section may not be carried out for a period of more than 72 hours from the time at which the approval is granted. Section 4 of the Act allows
certain persons to apply for authorisation under the Act, those being "a superior
officer" of An Garda Siochana, the Defence Forces and the Revenue Commissioners.

The minimum rank of the superior officer is designated in the Act. An application for
authorisation is made ex parte to a District judge assigned to any District Court

district. The scheme under the Act therefore does not require the application to be
made to the District Court district where it is intended to carry out the surveillance.

An applicationunder section 4 to authorisesurveillanceis heard in camera,that is in

private. Under the Act the application must be grounded on information sworn by the

applicantwhich establishesthat that person has reasonablegroundsfor believing a

number of matters, namely:

(a)

that the surveillance is necessary,

(b)

that the least intrusive means available having regard to its objectives
has been adopted,

(c)

that the surveillance is proportionate to its objectives having regard to all the circumstances including its likely impact on the rights of any
person, and

(d)

that the duration for which such surveillanceis sought is reasonably

required to achieve the objectives envisaged.

Only officers of the three identifiedbodies are entitledto seek authorisation,those

bodies being An Garda Siochana, the Defence Forces and the Revenue Commissioners. Section 4 of the Act identifies the information which each of those bodies must establish to show that the surveillance is necessary.

4 Certain designated persons are therefore entitled to make an application for

authorisationfor surveillanceunder the Act. That applicationis made exparte to the

DistrictCourtand the District judge hearingthe application issuethe may

authorisationor may issue it subjectto conditionsor may refuse the application. Section 5 of the Act deals with the authorisationand where an authorisationis issued, followinga District Court order, such authorisationauthorisesthe applicant, accompaniedby any other personhe/she considersnecessary,to enter any place (if

necessary reasonableforce),for the purposeof initiatingor carryingout the by

authorised surveillance withdrawing authorised and the surveillance devicewithout

the consent of the owner/person in charge. Section 5 also provides that the

authorisationmust be in writing and must specifythe particularsof the surveillance

deviceauthorised be used,the subjectof the surveillance, is the person,place to that

or thing, the name of the superior officer to whom authorisation is issued, any

conditions imposed by the order and the expiry date of the authorisation. The
authorisation issued by the Court is valid in respect of any part of the State and is not

restrictedto the DistrictCourtdistrictin whichthe orderwas obtained. The duration

of the authorisationis identifiedon the face of the order and the District Courtjudge

statesthe dateuponwhichit will expirewhichis a date whichcannotbe laterthan

three months from the date of issue. The Act provides in section 6 for the possibility of renewalor variation of an order and an applicationmay be broughtto renew or vary the authorisationbut that applicationmust be done prior to the expirationof the originalorder. An applicationfor renewal or variationmust be groundedon informationsworn by the person applying and must state the reasons for such applicationjustifying a renewalor variation of the authorisation.

5
Section 7 of the Act deals with surveillance in urgent cases which may be

carried out without an authorisation pursuant to a District Court order as provided for
in section 5. Approval for surveillance in cases of urgency is dealt with in section 7

and such surveillance must be carried out with the approval of a senior officer of a
minimum designated rank. Before granting the approval, the superior or senior

officer must be satisfiedthat there are reasonablegrounds for believingthat an

authorisation wouldbe issuedby the DistrictCourtand that one or moreof the

following conditions of urgency apply:

(a)

it is likely that -

a person would abscond for the purpose of avoiding justice,

obstruct the course of justice or
commit an arrestable/a revenue offence;

(b)

informationor evidence in relationto the commissionof an arrestable offence or a revenue offence is likely to be destroyed,lost or otherwise
become unavailable, or

(c)

the securityof the Statewouldbe likelyto be compromised.

An approval granted under section 7 in a case of urgency may be granted

subject to conditionsincludingthe durationof the surveillancewhich cannot exceed

12 hours. The Act provides that if the superior officer has reasonable grounds for

believingthat surveillancebeyond the period of 72 hours is warrantedthat he or she must make an applicationto the Court prior to the expirationof the period of 72 hours
for an authorisation to continue the surveillance. Section 7 of the Act identifies the
obligations on a superior officer who grants an approval.

II
Section 8 of the Act deals with tracking devices which provides a statutory
basis by which the movements of persons, vehicles or things may be monitored using

a tracking device for a periodof not more than four months where approvedby a superiorofficer withoutany necessityof making an applicationto Court. A tracking
device is defined and the minimum rank of the superior officer who may approve the

use of a tracking device is set out in the section. That sectionprovidesthat in addition
to satisfying the normal grounds for issuing an authorisation, a person applying for

such authorisationmust showthat the use of a trackingdevice would be sufficient for

soughtand that the information/evidence obtaining information/evidence the sought couldreasonably obtained the use of a trackingdevicefor a specifiedperiod be by
that is as short as is practicableto allow the informationor evidenceto be obtained.

An approvalmay be grantedsubjectto conditionsincluding durationof the the

surveillance.

A number of StatutoryInstrumentshave been introducedwhich are relevant to

the operation functionof the Act. ThreeStatutoryInstruments, and dealingwith

written record of approval,for An Garda Siochana,the RevenueCommissionersand
the Defence Forces were introduced, namely, Statutory Instruments No. 275/209,
290/209 and 80/2010. District Court Rules dealing with the procedures to be applied

by the District Court were introduced by two Statutory Instruments, namely, Statutory

Instrument 314/2010 StatutoryInstrument 360/2010.An orderunder No. and No.

34A of the District Court Rules is also relevant.

TheActwassigned lawon the 12th 2009andbecame into July, operative of as

that date. I was not notifiedof my appointmentas the designatedjudge pursuantto section 12 until I receivedthe letter of the 14thOctober,2009. In those circumstances
I determined, that in the first year of its operation, that it would be appropriate to

review the operationof the Act from its inceptiondate to the date of the 31!tJuly,
2010 and to review the operation and use of sections 4 to 8 under the Act during that
period.

After my nominationas the designatedjudge, I was contactedby the office of the Chief of Staff of the DefenceForces,the Commissionerof An Garda Siochana
and the Chairman of the Revenue Commissioners who in each instance identified a

seniorperson who would act as a point of contact and would facilitateme in the carryingout of my functionsunder section 12 of the Act. On being informedof the contactperson in each of the three bodies, I made written contact with each of those

personsin October2009. In November 2009I attended McKeeBarracksand at at

Garda Headquartersin PhoenixPark for the purpose of discussingthe procedures

whichhad beenfollowed that date and/orwereto be followedby bothof those to

bodies. In particular, I observed the initial procedures and documents used by An
Garda Siochana in operating the provisions of the Act and ascertained that adequate

and sufficientdocumentaryrecords were being kept. Recordswere being kept of

every occasion when the provisions of the Act were used.

By the 19th November, 2009,whichwas the date of my attendance Garda in

Headquarters whereI metwithan AssistantCommissioner a numberof other and officers,it was apparent An GardaSiochana alreadyavailedof the provisions that had
of the Act and had put in place a centralisedwritten record of all occasionsand
instances in which there had been applications for authorisations, the granting of

authorisations,the variationor renewal of authorisations,the approvalof surveillance in the case of urgency and the use of trackingdevices. After the Act had been in use for a period of slightly in excess of one year, I
again made contact with each of the contact persons within the three organisations

and arranged to attend at a relevant location where each of those three bodies held the

relevant documentation and information. Meetings were arranged with each of the

2010and I attended McKeeBarrackswhere threebodiesin the monthof September at

I met with the Colonel in chargeof the operation. The Colonel in chargehad
available the written records in relation to each and every occasion upon which the

provisionsof section4 to section8 of the Act had been operatedby the Defence
Forces in the period from the commencement of the Act up to the 31s1 July, 2010. I

will deal later with each of the three bodies in separateparagraphs. In September 2010 I also attended at the headquartersof An Garda Siochanawhere I met with the
Assistant Commissioner in charge of the use and operation of surveillance under the 2009 Act and had made available to me the documentation and records relating to

eachandeveryoccasion uponwhichAnGardaSiochana availed theprovisions of had

of section 4 to section 8 of the Act. Similarlyin September2010 I attendedat the
Investigations and Prosecution Division of the Revenue Commissioners and met with

the Assistant Secretaryin charge of the use and operationof surveillanceunder the
Act by the Revenue Commissioners. I was provided with documentation and records

dealing with each and every use by the Revenue Commissioners of the provisions of

section4 to section8 of the Act duringthe relevantperiodup to the 31st July,2010.

The Defence Forces

My consideration of the documents and records kept by the Defence Forces

that and madeavailable me established the DefenceForceshad availedof the to

provisions under the Act on a limited number of occasions during the twelve and a

half month period under review. The Defence Forces had used the provisions of the Act on less than ten occasions and therefore I was in a position to review and consider

9
the documents available in relation to each and every use by the Defence Forces of

the provisions of sections 4 to 8 of the Act. On every occasion upon which

surveillance was carried out by the Defence Forces during the twelve and a half

month period, such surveillancewas carried out pursuantto an authorisationissued by the District Court followingan applicationfor such authorisation. On each occasion

uponwhichan application madeto the DistrictCourt,the Colonelin chargewas was

present and was availablefor examinationby the District Courtjudge. I reviewedthe
documentation and was satisfied that from those records each and every occasion

upon which the Defence Forces had operated the provisions of section 4 that an

authorisationfrom the DistrictCourt had been obtained. On every occasionthe

Colonelin chargewas the instigator the application authorisation of undersection for

4. In each instancethe authorisationissuedby the DistrictCourt under section 5 was
available to me. On no occasion was an authorisation granted for the maximum

period and the period of authorisation was in each instance limited to a period less
than three months. The basis for the application under section 4 in each and every

instance was that the surveillance sought was necessary for the purpose of

maintainingthe securityof the State. In each instanceupon which an application under section4 was grantedthe Districtjudge was satisfiedto make an order. For

suchan orderto be madethe District judgeis requiredto be satisfiedby information

on oath of the superior officer concerned. The authorisation granted provides

particulars of the surveillance device to be used, the person or place or thing that is to

be the subjectof surveillance, nameof the superiorofficerto whomit was issued the
and the conditions upon which the authorisation was issued including the date of

expiry. In no instancewas section 6 of the Act used by the DefenceForces, that is, an
application for variation or renewal of authorisation. In one instance a person who

had been previouslythe subjectmatter of a surveillanceorder was the subject of a

subsequent application theDistrict to Court.Thedocumentation indicated in that that

case there had been an authorisation for a period of one month in respect of a

particular person but that the surveillance device had been removed before the end of

that period and that due to the need to extend the scope and nature of the surveillance a fresh applicationwas made to the DistrictCourt for an authorisationunder section 5.
The fact of the earlier surveillance order was disclosed to the Court at the time of the making of the second application.

As indicated earlier in this report an application for authorisation can be made

to any District judge and 1 therefore consider it appropriate to identify whether or not one particular District judge was being used as the person to whom applications were

madeby the DefenceForces. The positionidentified the documentation that was by everyauthorisation issuedduringthe periodwas issuedby a differentDistrictjudge.
I had the opportunityof speakingwith the Colonelin charge of the operation of the Act and I was able to discusswith him the operationof sections4 to 8 of the
Act and to review the use by the Defence Forces of the provisions under the Act

duringthe twelve and a half month period after the Act came into operation. The

DefenceForcesdid not avail of the provisionsunder section7 for the approvalof

surveillance in cases of urgency on any occasion during the period nor had they

availed of the provisionsunder section 8. Due to the limitednumber of uses by the

Defence Forces in the period under consideration I was able to review the files and
documents available in respect of each and every use by the Defence Forces of the provisions of the Act. That review demonstrated that in each and every instance a

District judge was satisfied to grant an authorisation under section 5 and that such
authorisation was available for review. I spoke to the Colonel in charge and obtained

H
an oral account of the circumstances giving rise to the application for authorisation. That information is confidential and it relates to criminal investigations which are

progressing. The documentation available and the information provided to me by the Colonel in charge enabled me to review the operation of sections 4 to 8 by the

Defence Forces for the twelve and a half month period in question. The

No. implementation Statutory of Instrument 360/2010will facilitatea standardisation

of information available in relation to applications brought under section 4 for an
authorisation under section 5.

During my review nothing came to my attention in relation to the Defence

Forces' use of the Act which would suggest any improper or inappropriate use of the
provisions of sections 4 to 8 of the Act.

An Garda

Siochana

In November 2009 I visited the Assistant Commissioner in charge of the

operationand co-ordinationof all applicationsfor authorisationor use under sections

4 to 8 of the Act. I met with the Assistant Commissioner and a number of other
members of An Garda Siochana and ascertained that early use had been made by An

Grda Siochanaof the provisions the Act afterits introduction.I reviewedthe make of
up of the documentationand informationwhich was kept and recorded. The
documentation and records were retained in a centralised location and were available

to me for review. The system in operation was such that all applications under the

Act were directed through the Assistant Commissioner in charge.

In September2010 I met with the AssistantCommissionerin charge of the

operation of the Act for An Garda Siochana and a number of other senior members of
the Gardai. The manner in which An Garda Siochana operates the Act is that all

requests for use of and all applications for use or authorisations under the Act and all
requests for use of tracking devices are dealt with by one Assistant Commissioner

operatingat the head of a smallteam of seniorofficers. All documentationand

records generated are available centrally and were available to me on the occasion of
my visit.

The period of review was from the commencement of the Act until the 31st

July, 2010. The use of a centralpoint for all uses under the Act results in all

applicationsfor usage beingdirectedthroughone sectionand that sectionhas senior

officers who have been trained in relation to the operation of the Act so as to ensure

that the proceduresand recordkeepingwhich have been laid down are maintained.

From my discussionswith the AssistantCommissioner the other senior and

members, it was apparent that early consideration was given as to the mode of

operationwhich the Gardaiwould adopt in seekingto avail of the provisionsof the

Act. Legal advice was sought including consideration of international case law from other common law jurisdictions where surveillance has been permitted by statute and
also consideration was given to decisions of the European Court of Human Rights.

Part of that ongoingconsiderationis that an internalpolicy documentis in the process

of completion and it is envisagedthat it will be available for circulationwithin the
Gardai prior to the end of this calendar year. When that document has been

completeda copy of it will be made availableto me as part of my review of the operationof the Act as designatedjudge. The policy documentwill apply throughout
An Garda Siochana.

The surveillancepermittedunder the Act is operatedby An Garda Siochanain

such a manner that in practise no individual Guard, no matter of what rank, can

instigatea usage under the Act without goingthrough the internal procedureswhich

I
direct the usage through a particular section. This applies in every case. That

approach was apparent from my inspection as all the documentation and records relating to all and any usage under the Act had been directed through the one section.
The scope of usage related to all areas of serious organised crime and subversive
activities.

The considerable resource implications involved in the use of the Act results
in a situation where surveillance is only used in carefully selected and targeted cases. An examination of the documents and records available to me and an examination of

the breakdownof the usage by the Gardai of the provisionsof the Act confirmsthis
situation. It is also the case that some usage involves real risk to the persons involved

in assisting in the application for or the usage of surveillance devices. Surveillance

devices can and are operated in a covert manner but the position is that the usage of
the product of such surveillance in Court proceedings involves the operation in

question being the subject of review in public with the actual or potential

identificationof parties involvedin the process. This results in deploymentof devices

in carefully selected and considered cases.

It is to be noted that there is currently available on a commercial basis

surveillance devices and counter-surveillance devices which can be purchased by

membersof the public. The use of such devices by third parties, includingcriminals,
is a matter of ongoing concern to the Gardai.

All the documentation and records generated by the Gardai in their use of the

provisionsof the Act in the relevantperiod were made availableto me in Garda Headquarters. Recordsrelatingto each and every section 5 applicationwere available and it was apparentfrom an examinationof those recordsthat no individualGuard

could pursue an authorisation without him or her being directed to the section which
controlled and monitored the operation of the Act. In relation to the section 4 applications, which are applications for
authorisation, I had regard to the occasions where a request for an application was

refused. There were less than ten cases where members of the Gardai had sought to have an application for authorisation made but where such request had been refused. All the files relating to those cases were available to me and I chose at random 50% of

the cases. That review indicated that requests for an application for authorisation to
be made had been made in circumstances where they were premature or where such

requests did not provide the necessary information to ground an application for
authorisation or where circumstances were such that it was deemed that such

application was not proportionate. In those cases no application was made. Given

that the procedurewhich is followedby An Garda Siochanais that all applicationsgo through the section dealingwith these matters and given the imminentintroductionof

a writteninternalprotocol,it wouldappearunlikelythat there will be a substantial

numberof cases where applicationsby individualGardaifor the making of an
application for authorisation under section 4 of the Act will be refused. However, the

procedures which are in place provides a filtering process to endeavour to ensure that
the requirements for the granting of an authorisation are present prior to an
application for authorisation being made.

In the relevant period, An Garda Siochana made a number of applications

under section 4 and authorisation was granted under section 5 by the District Court.

The number of cases represented a small double figure number and therefore I was
able to review 33% of the section 5 authorisations on a random basis. The documents and records relating to all applications were available and I chose 33% of the cases at

I
random. A review of those cases demonstrated that usually applications were made to

the Districtjudge assignedto the District Court area wherethe surveillancewas

envisaged to occur. In all instances applications were made on information on oath

and since the introductionof StatutoryInstrumentNo. 360/2010that informationis in

a set format. The cases reviewed indicated that the Act had been used in an
appropriate manner and the surveillance dealt with such matters as the delivery of

controlleddrugs and investigations crimes of seriousviolenceinvariablytargeted of

against organised criminal or subversive groupings. Consideration of the documents

demonstrated the periodof authorisation invariably thanthe maximum that was less
period and was targeted to the nature and circumstances of the proposed surveillance.
Also in a number of instances, notwithstanding the grant of an authorisation under

section 5, no deployment occurred due to altered circumstances.

In each and every one of the cases chosen at random I was provided with

information concerning the circumstances as to why such surveillance took place,

how such surveillanceoccurred,the nature and extent and type of informationwhich was gleaned and the extent to which deploymentwas possible. There were no applicationsfor variationor renewalof authorisationsmade by
An Garda Siochana during the relevant period.
A number of authorisations under section 7 for approval of surveillance in

cases of emergencywere made during the relevantperiod. As those applicationswere

not the subjectof consideration the DistrictCourtI paidparticular by regardto those

approvals during my review. As in the other cases all the documentation and records
relating to such approvals were available for my consideration. The number of

authorisations was a double figure number representing roughly twice the number of
section 5 authorisations. In reviewing the records it was apparent that a number of the

approvals for surveillance in cases of emergency proceeded to subsequent section 4 applications and the grant of a section 5 authorisation. That sequence could be gleaned from a cross-reference of the documentation. I reviewed a substantial
number of the section 7 approvals and in each and every instance the order was

limited to a period of no greater than 72 hours. In the vast majority of cases the order
was for a duration of considerably less than 72 hours. In reviewing those approvals I

paid regard to the information which was present on the documents and records
concerning the urgency of such approvals. That review demonstrated that in the cases
reviewed there was in each instance an identifiable urgency for granting an approval under section 7. In a number of cases information had only become available

immediatelyprior to the approvalbeing grantedunder section 7 and such approval

related to events which were imminent. In a significant number of cases where

approval was granted under section 7 the duration of the approved surveillance was so
limited in time that such surveillance would have been completed within a matter of

hours and prior to any opportunityto applyto Court for an authorisationunder section
5. Examination of the records and documents also demonstrated that urgent approvals were required in circumstances where information crystallised immediately prior to

the actual surveillance itself. The use of section 7 and the other sections of the Act and the grant of approvals for surveillance in case of urgency related to organised criminal activity and to matters of State security.

From my examinationof the section7 approvalsand from the information providedto me at my meeting it is indicatedthat section7 approvalsare used in
circumstances where there is neither the time nor circumstances which will allow or permit for an application under section 4 for an authorisation under section 5. The nature of the surveillance, the location of such surveillance and the duration identified

17

in the documents is entirely consistent with there being urgency in each of the cases
which was considered.

A written record is kept of approvals granted under section 7 which provides

Hi particulars of the surveillance device, the person, place or thing that is to be the

subject of the surveillance, the name of the member of An Garda Siochana to whom
such approval is granted, the conditions imposed on such approval, the time at which

such approval is grantedand the durationof the approvedsurveillance. In at least one

instance where a file was reviewed, the documents demonstrated the imposition of conditions which were consistent with the protection of third parties' privacy.

The finalsectionof the Act whichthe designated judge is requiredto keep

Hj under review is section 8 which deals with tracking devices. During the relevant period tracking devices were approvedfor use on a substantialnumberof occasions, the number of such approvalsbeing less than 100. As with the operationof the other
sections of the Act, all documentation and records relating to such approvals for the
relevant period were available. I was able to review a number of the cases at random

H| and it was apparentthat trackingdeviceshad beenplacedon vehiclesand objects. As

tracking devices are less intrusive than surveillance devices the approval of the use of

such devices does not require any applicationto Court. A memberor officer can
apply to a superior officer for the grant of an approval to use a tracking device

provided the requirements laid down in section 8, sub-section (2) of the Act are met.
Hj An examination of the records demonstrated that tracking devices were invariably used as an aid to traditional Garda investigative methods for the purposes of giving

HI the location and direction of vehicles and objects if moved. The cases which I
reviewed demonstrated that the approvals under section 8 were granted in

18

circumstances where there was extensive information available from earlier

investigations.

The review of the approvals granted under section 8 including the conditions

as to durationand use of the trackingdevices and the informationprovided

concerning the circumstances and reasons for granting such approvals indicated that

such tracking devices were invariably used as part of ongoing investigations and as an

aid to traditionalGarda investigativemethods.

During my review of An Garda Siochana's use of sections 4 to 8 of the Act,
nothing came to my attention which would suggest any improper or inappropriate use

and the proceduresin place are designedto ensure that such event shouldnot occur.

The Revenue Commissioners

In September 2010I visitedthe Investigations Prosecutions of Divisionof and

the Revenue Commissioners and spoke to an Assistant Secretary who was

accompaniedby two other officials at principalofficer level. The Revenuealso

underthe Act are madethroughthe one operatesa systemwhereall applications

office. All the documents and records relating to the use and operation of the 2009

Act by the RevenueCommissionersduringthe relevant period were availablefor my

review. To assist in a considered and consistent approach to the operation of the
provisions of the Act, the Revenue Commissioners have issued written operational instructions in the form of an instruction manual on the Criminal Justice

(Surveillance) 2009whichwas issuedin July2010. A copyofthat manualwas Act

made availableto me. That manual identifiesthe criteria for the use of surveillance and sets out in detail approvedproceduresand the proceduresto be observedby

H
nominated officers. It also provides, in an appendix, details of the statutory law
relating to surveillance.

An examination of the documents and records demonstrated that in the

majorityof cases the usage by the RevenueCommissionersrelatedto tracking devices under section 8. Duringthe relevantperiod there had been a number of applications
under section 5 and since those applications were relatively few I was able to review
the documentation and records relating to all those applications. Applications under

section 5 were based upon information on oath of superior officer specifying the grounds and the format followed in the applications was almost identical to the format

Instrument 360/2010.The authorisation ultimatelyidentifiedin Statutory No. granted

to the Revenue Commissioners under section 5 in each instance was in writing and specified the particulars required in section 5, sub-section (6) of the Act. A review of

all of the section5 authorisations identified in eachinstancethe particularsof the that

surveillancedevicewas identified,the person,place or thing whichwas to be the
subject of the surveillance was identified, the name of the superior officer to whom it

was issuedwas identifiedand the conditions includingthe durationwereidentified.

The duration varied dependent upon the nature of the surveillance required. As with
An Garda Siochana the grant of an authorisation did not necessary result in the

activationof a device as the circumstanceswhich gave rise to the applicationand the grant of the authorisationhad altered by the time it came to place or to activatethe
surveillance device.

No use of section 6 or section 7 of the Act was made by the Revenue

Commissioners during the period under review.
A number of approvals for the use of tracking devices under section 8 were

granted to officers of the Revenue Commissioners during the period under review.

I
The number of approvals granted under section 8 was in small double figures. All the
documentation and records in relation to such approvals were available and on a random basis I chose 33% of the approvals for review. In each and every instance

applicationsfor approvalwere made to an officer of the RevenueCommissionersof

not less than principal officer. The principal officers to whom such applications for
approval were made were in every instance one of the principal officers directly

involved in operating and monitoring the Act for the Revenue Commissioners. It was

apparent from considerationof the documentationand records and from the

information provided to me that the cost and manpower involved in the use of
tracking devices and in particular surveillance devices is such that they are targeted

and limited to cases where there is already existing information. In all the cases which were reviewed there was a written record of approval consistent with section 8, sub-section (7) of the Act and there was available to me information and records to confirm the appropriateness of the use of such devices.

During my review nothing came to my attention which would suggest any

improperor inappropriateuse of sections4 to 8 of the Act and the proceduresin place

provide for a consistent and targeted use of the Act.

Conclusions

Each of the three entities entitled to avail of the provisions of sections 4 to 8 of the Act have put in place a procedure to ensure that all use is directed through a
designated person, section or branch. In each instance the documentation and records
necessary to assist in the review were available in a central location and I was free to

choose at random any application, authorisation or approval for consideration. The

documentation relating to same was available and when explanations were requested in relation to the individual circumstances they were readily provided. The three

21

entities have put in place proceduresand record keepingto facilitatethe ongoing review of the operationof sections4 to 8. Duringthe first year of operationthe
Revenue Commissioners have prepared and circulated an operational instruction and

an internal policy document within An Garda Siochana is near completion and it is

envisagewill be circulatedbefore the end of this calendaryear. To date, usage of the provisionsof the Act by the DefenceForceshas been limitedbut in that organisation applications,authorisationsand approvalsunder the Act are dealt with in one office
under the control of one officer and the requirement for written operational

instructionsor internalpolicy guidelinesis considerablyless than in the Revenue

Commissioners or in An Garda Siochana.

The introduction StatutoryInstrument 360/2010 established basis of has a No.

for ensuringthat the informationupon which authorisationsunder section 5 are
granted is set forth in a consistent and coherent manner.

My consideration the operation the Act has also identified every of of that
District judge was circulated with an explanatory memorandum in relation to the
operation of the 2009 Act during the year under review. That circulation took place in circumstances where a section 5 authorisation hearing takes place ex parte and

otherwise publicand canbe madeto any District in judgeassignedto any District

Court district.

Havingreviewedthe operationof the Act underthe provisionsof section12,1

make this report to the Taoiseach and confirm that there are no other matters relating

to the operationof sections4 to 8 of the Act whichI considershouldbe reported.

H| Kevm

l.U'eepey

S\

Judge of the Higlygourt

DOCUMENT(S) TO BE LAID BEFORE HOUSE OF OIREACHTAS

Clerk of Dil
1 enclose 3 copies of the under mentioned document(s) to be laid before the House. The information sought below
is as set out.

for Assistant Secretary to the Government

Date: 1stFebruary 2011

Telephone: 01 6194089

ch.gov.ie

1.

Department or other body laying document

2.

Title of document

CriminalJustice (Surveillance)Act 2009

- Report to the Taoiseach (dated 21 October 2010),
pursuant to Section 12(3) of the Act
- Statement (dated 1 February 2011) pursuant to

section 12(6) of the Act

3. Parliamentary
(available

number (Prn)
Supplies Agency (01) 647 6628)

from Government

If the requirement to lay the document is set out in an Act please state the title and specific section of

Criminal Justice (Surveillance)

Act 2009 - Section

the Act .
If specified in the Act, within how many sitting days may the House annul or disapprove the document? (e.g. 21 sitting days)

12(6)

5.

6.

Does the Act specify whether the House must approve the document? (e.g. by resolution ) ..

7. Full URL if the document is available onlii

*Three copies of the document in respect of each House, or six copies where it is to be laid before one House only.

DOCUMENT(S) TO BE LAID BEFORE HOUSE OF OIREACHTAS

Clerk

of Seanad

I enclose 3 copies of the under mentioned document(s) to be laid

is as set out.

rmation sought below

for Assistant Secretary to the Government

Date: 1stFebruary 2011

Telephone: 01 6194089

taoiseach.gov.ie

1.

Department

or other body laying document

Department of the Taoiseach

2.

Title of document

CriminalJustice (Surveillance)Act 2009

- Report to the Taoiseach (dated 21 October 2010),
pursuant to Section 12(3) of the Act

- Statement (dated 1 February 2011) pursuant to

section 12(6) of the Act

3. Parliamentary number (Prn)
(available from Government Supplies Accnuv (Ol) 647 6628)

4.

If the requirement to lay the document is set out in an Act please state the title and specific section of the Act .

Criminal Justice (Surveillance) Act 2009 - Section

12(6)

5.

If specified in the Act, within how many sitting days may the House annul or disapprove the document? (e.g. 21 sitting days) .

6.

Does the Act specify whether the House must approve the document? (e.g. by resolution ) .. ..

7. Full URL if the document is available online

*Three

copies of the document

in respect of each House, or six copies where it is to be laid before one House only.