THE PROPOSED Surveillance Bill could change the relationship between An Garda Síochána and the public, and was unlikely to achieve its aim of reducing gangland crime, according to a leading prosecuting barrister.
Barrister Seán Gillane told the 10th annual prosecutors’ conference that the Bill was being sold as “give us your right to privacy and we’ll nail the gangland bosses”. However, it would fail, and there would be a lot of legal and philosophical casualties along the way.
He said the Bill contained no reference to a single constitutional or statutory principle as to how it was to be used. We had two very important principles in our criminal justice system. The first was policing by consent. A garda was a citizen in uniform, not part of an armed gendarmerie. The other was that we prosecuted by consent, in the name of the people of Ireland. “Will this Bill change that?”
He said privileged communications, like those between a lawyer and his client, were exempted from surveillance. But it was a criminal offence to give details of a surveillance operation. A communication would have to be listened to to find out if it was privileged. There was no provision in the legislation for the destruction of such privileged communication.
“It will be us who will receive this material and be asked to decide what can be used.
“What about marital privilege? What about marital privacy? What about the rights of the child in a home that is being bugged? None of this is reflected in the Bill or in the explanatory memorandum.”
He asked what rights did a citizen have to know whether he or she was being subjected to surveillance. An application for authorisation to use a surveillance device had to be held in camera and ex parte. It was a criminal offence to reveal details of the surveillance. “So how would you possibly complain?” he asked.
The only way you would know would be if you were prosecuted and surveillance evidence was used in the prosecution.
He said the basis for seeking authorisation was suspicion that a person had committed “an arrestable offence”, which included “pretty much everything”.
He predicted a huge problem with disclosure of material relating to surveillance.
“Cases may become slower, longer and ultimately less successful. As a person who prosecutes, and is proud to do so, I want to do so as a citizen and to be policed as a citizen. I don’t want that to be changed.”