Surveillance Bill will fail to tackle gangs


OPINION:Proposed surveillance powers for the gardaí do not satisfy tests of common sense and investigative necessity, writes JOHN O'BRIEN.

AS A recently retired senior police officer, I read the publicity surrounding the publication of the Criminal Justice Surveillance Bill 2009 with something akin to excitement. This was tempered somewhat by long experience of hearing spin on the latest anti-gangland measures. Depressingly, our legislators seem to keep returning to Year Zero when the latest atrocity takes place.

In Ireland, we now have criminal gangs united by the common purpose of achieving high monetary reward, through their activities in crime, notably supplying drugs, smuggling, robberies and murder.

They intimidate, control and expand at an exponential rate. They deal viciously with all who oppose them and they kill their own – including their leaders – when they no longer serve the common purpose. They feud with each other on the same vicious basis. They sit in back rooms and organise “executions” which their henchmen then carry out. And the very dogs in the street are barking their names.

The gangs use many houses and different locations, a variety of transport including stolen vehicles; thousands of mobile telephones, whose numbers change constantly. They have access to high-velocity weapons and improvised explosives. They have national and international mobility, international criminal contacts and, of course, lots of money. They also have access to legal and financial advice of the highest order. Solving the problem of gangland is a much more complex challenge than many of those in authority appear to realise. The proposed Surveillance Act is insufficient for the following reasons.

A typical, modern gangland venture will involve a plan and a process developed over many months. This could involve a decision to import contraband to Ireland from north Africa, using a land route through Spain, France, Belgium, and Netherlands, a sea route to the UK and similarly on to Ireland.

The success of any counter-measures by the gardaí is predicated on many factors, including a ready supply of information either from human sources or electronic. That is just the starting point. Co-operation has to be agreed with law enforcement and judiciary in the transit countries. This co-operation may be tempered by local or national interests.

It would be convenient if the criminal were to be predictable, consistent and obliging. More likely they will do dummy runs, change their plans at the last minute, involve new persons in the operation and communicate with each other through many different means. Additionally the “exporters” may use languages other than English and generally protect themselves in their own environment.

Eventually if all these ducks line up, an operation goes down and the consignment lands here, where it is broken down and distributed to a willing and eager market. Of course, like any of the major criminal masterminds, Mr Big will rarely be there doing the donkey work. So when the police try to put a case together in a way that makes judicial sense – a prosecutable case – it is usually the donkeys who get caught.

Mr Big may also decide that he no longer trusts a lieutenant and will have him murdered. Furthermore, there is every possibility that any weak links will be eliminated if they look like harming the gang leader’s interest – for example, evidence that could be used against him.

If one takes an example of terrorist-sponsored crime, this rather simple scenario set out here may become Byzantine by a factor of 100. The proponents of the Bill should explain how their measures would combat these scenarios. In my view this Bill fails two tests, those of common sense and what I will call “investigatory necessity”, and by a considerable margin, for the following reasons.

1.It adopts a generalist approach by seeking to apply this law to the entire population and not directly to criminal organisations as defined in the Criminal Justice Act 2006.

2.The threats emanate from specific and defined sources, criminal gangs and subversive organisations. The threats do not emanate from the population as a whole and arguably the population as a whole should not be subjected to these measures.

3.The definition of surveillance data is far too wide.

4.It can be construed to include all surveillance activity, including intelligence and evidential material.

5.The material received from foreign agencies could be disclosable and electronic devices fitted by them to assist Irish authorities could be rendered inadmissible.

6.There may be a loss of confidence at international level in the Irish systems which may inhibit the flow of intelligence and subsequently of evidence.

7.The rules on disclosure are unclear.

8.It is not clear if telephones and electronic mail are covered. Some of the measures may have the effect of neutralising current surveillance practices, particularly in relation to telephone intercepts and electronic mail.

9.Placing authorisations at the District Court level is unnecessarily indulgent and it exposes a greater number to possible threats from the criminal elements.

10.The authorisation process is rigid at the operational level and lacks operational reality.

11.The rules on privilege are also unclear.

12.Surveillance officers may be compromised in terms of personal safety and their identities may become known to the criminal gangs.

13.Their operational effectiveness may be impaired and, of course, they will spend much more time dealing with bureaucracy.

14.It is not clear whether individual surveillance actions will have to be authorised on a piecemeal basis and the thrust of the Bill seems to suggest that approach. This would hamstring fast flowing dynamic operations.

15.The Bill seems to miss the point that surveillance activity is, by its very definition, a secret activity and its efficiency depends on the practitioners maintaining a high level of security for their own safety and that of others.

I endorse the need for independent oversight of surveillance powers and I would also draw attention to the oversight roles of the Garda Ombudsman Commission and the Garda Inspectorate. The proponents of this Bill should set out in clear terms how it is to effectively counter criminal and terrorist organisations. Most of all they should say on whose behalf they are expounding these measures.

I believe that if enacted this legislation would provide endless cannon fodder for the Law Library and little else of practical advantage. In my view any further legislative changes must also pass the tests of common sense and investigatory necessity. The debate on surveillance is far too narrow and it would be very wise to see the whole package before making a final judgement. Let us wait and see.

John O’Brien is a former Det Chief Supt in the Garda Síochána and a former national head of Interpol and Europol, respectively the international and European police information exchange agencies