THE RECENTLY announced Surveillance Bill, aimed at combating gangland crime, could open the door to challenges to “ordinary” surveillance and the use of informants, a legal conference at the weekend was told.
In a paper presented to the conference, Prof Alisdair Gillespie of Leicester de Montfort University said the Bill was important and necessary, as it recognised, for the first time, the need for covert surveillance to be put on a statutory footing. Until now, there was no legal basis for surveillance by the Garda.
The Bill also allowed for the first time the product of surveillance to be admissible in evidence.
However, as it stood, the Bill was not perfect and the principal criticism was that it left a lot of surveillance unregulated, said Prof Gillespie. It defined “surveillance device” in a manner that excluded items like binoculars, for the understandable reason that the Government did not wish to overwhelm the courts with applications for their use. This could lead to legal challenges as the Bill acknowledged the need for surveillance to be regulated, and this would then fall outside regulation.
The European Court of Human Rights had found that covert surveillance is ordinarily an automatic breach of Article 8 (1) of the European Convention on Human Rights, guaranteeing the right to privacy.
Previous decisions of this court had made it clear that justification under Article 8 could only be pleaded when there was a statutory basis for the surveillance.
The same applied with the use of informants, he said. The Strasbourg court had found that Article 8 “protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world”. “The use of an informant can be said to be an interference with this principle because the State is seeking to develop or influence a relationship with a citizen for a covert purpose,” Prof Gillespie said.
The fact that the Bill recognised that surveillance required a legal basis would make it more difficult to defend an argument that “ordinary surveillance” or the use of informants was not a breach of Article 8, he said.
It was clear that the Garda had been using surveillance for many years without having the legal power to do so. The Constitution guaranteed the right to privacy, but the need to regulate surveillance was even stronger due to the recent jurisprudence of the European Court of Human Rights.
If a case was brought under the convention, the Oireachtas would have to revisit the legislation to cater for other forms of surveillance, he said.