Dr Ger Coffey
The Criminal Justice (Surveillance) Act 2009 consolidated the ability of state agencies to detect, investigate, and prevent the commission of serious criminal offences. Members of An Garda Síochána, officials of the Revenue Commissioners, Defence Forces and Garda Síochána Ombudsman Commission representatives may, in accordance with legislative authority conferred by the provisions of the 2009 Act, covertly enter a place and conceal surveillance devices. This operational strategy is predicated on reasonable grounds suggesting that information and intelligence garnered by covert surveillance devices may prevent the commission of serious criminal offences or whereby evidence for the pursuit of serious crime investigation may be identified and garnered to be tendered in evidence.
The 2009 Act also clearly contemplates the harvesting of relevant information for ongoing intelligence purposes. Statements made by suspects against interest, admissions or plans for the commission of serious (inchoate) criminal offences may be admissible in evidence as exceptions to the rule against hearsay. This is significant in the context of proactive intelligence led policing strategies to tackle the consequence of serious criminal offences, organised crime, and terrorist activities.
Issues of legal context and interpretation of the 2009 Act have been considered by the superior courts and a perusal of relevant judgments underscore the intricacies of covert surveillance operations. A survey of the juridical landscape is apposite for criminal justice professionals operating at the coalface and tasked with the implementation of the legislation during complex ongoing investigations in diverse legal contexts.
An authorisation issued by a District Court Judge under section 5 of the 2009 Act does not bestow complete authority upon state agencies empowered under the legislation. In The People (DPP) v R McC [2017] IECA 84, the Court of Appeal underscored the procedural safeguard in that the circumstances wherein surveillance devices may be utilised are strictly delineated by the conditions of the authorisation (and presumably an internal approval) and the provisions of the 2009 Act governing surveillance operations.
Section 7 of the 2009 Act provides that approval for surveillance in cases of urgent necessity may be issued by a Superintendent of An Garda Síochána, a Colonel of the Defence Forces, or a Principal Officer of the Revenue Commissioners. Idah v DPP [2014] IECCA 3 considered the admissibility of recorded conversations between the appellant and members of An Garda Síochána during a covert operation. The prosecution sought to tender into evidence a transcript of an audio recording of a face-to-face conversation between members of An Garda Síochána and the accused in circumstances where the undercover investigators were equipped with covert audio recording devices. Since the evidence was procured using a surveillance device as defined by the 2009 Act the legislation was applicable. Having obtained an authorisation from a District Judge for two days of surveillance an internal approval was granted for a third date of surveillance without seeking judicial approval to continue the surveillance. Without the use of a surveillance device, recordings made of the exchanges in question would not have been possible and these recordings were later transcribed, and the transcripts were tendered in evidence at trial. The trial judge ruled that what had taken place were face-to-face meetings and, therefore, did not come within the definition of ‘surveillance.’ The Court of Appeal concluded there was insufficient justification of urgency to warrant the extension by the Superintendent of the period previously authorised by the District Court Judge. MacMenamin J. opined: “The express terms of the 2009 Act seek to confine surveillance to specified activities carried out ‘by or with the assistance of surveillance devices.’ If such devices are not used, then the Act does not apply. It, therefore, has no application to other investigative techniques” (para. 42). MacMenamin J stressed that state agencies were not free to choose whether to apply for an authorisation with judicial oversight or internal approval. The Court of Appeal ordered a retrial, and the undercover members could then give viva voce evidence that was not tainted by the approval that was deemed invalid. One of the key factors in determining whether there ought to be a retrial was the fact that neither of the undercover members gave viva voce evidence during the original trial, but instead relied solely on the transcripts in question. The recordings of face-to-face meetings between the appellant and undercover members were deemed inadmissible where such recordings had not been authorised in accordance with the 2009 Act and where there was no element of urgency to justify the failure to seek an authorisation. A provision that would require judicial oversight in retrospect at the earliest opportunity in circumstances where surveillance had been internally approved by a superior officer in cases of urgent necessity would effectively constitute judicial oversight of sorts.
The Idah judgment raised significant legal issues regarding the use of 2009 Act. The investigating members of An Garda Síochána were clearly dealing with the exercise of extensive powers under the provision of the new legislation and were evidently adhering to what they believed was the correct procedure in the context of the investigation. The case accentuates the necessity for adequate training, resources and supervisory oversight through the interpretation and implementation of the extensive powers conferred by the 2009 Act, which must be exercised in a fair, proportionate and a transparent manner in all contexts. The judgment sent out clear messages to investigators on the interpretation of the legislation and compliance with procedural safeguards. Nonetheless, the judicial interpretation in Idah is beneficial to investigators and ensuing superior court judgments have identified best practices and procedures for investigators in the planning and execution of covert surveillance operations and related policing strategies.
In The People (DPP) v Maguire [2021] IECA 223, Court of Appeal endorsed the opinion expressed by the Court in Idah that the provisions of the 2009 Act, to the extent as approval or authorisation is required, do not apply to visual observation type evidence. Such evidence may be deemed admissible subject to the rules of evidence and constitutional imperatives safeguarding due process guarantees.
Section 7 of the 2009 Act was opened to the Supreme Court in Damache v DPP [2012] IESC 11 with other statutory provisions by which members of An Garda Síochána may exercise powers to issue search warrants. Section 29(1) of the Offences against the State Act 1939 (as amended) was deemed unconstitutional, and the search warrant granted invalid. The impugned provision had permitted members of An Garda Síochána not below the rank of superintendent, to issue a search warrant in certain specified circumstances but did not specify that such warrants should only be issued by members of appropriate rank who were independent of the relevant investigation. The Court held that the issuing of search warrants is an administrative function that must be exercised judicially and independently of the investigation. It is conceivable that a similar legal challenge could arise in the context of the 2009 Act in circumstances where internal approvals are granted by a superior officer who is directly involved in the investigation.
Retention of materials relating to applications and reports (s. 9), restriction of disclosure of existence of authorisations and other documents (s. 10) and confidentiality of information (s. 13) were under consideration in The People (DPP) v Hannaway (et al) [2021] IESC 31. The trial court and Court of Appeal ruled evidence inadmissible because the exclusionary rule was inapplicable to irregularities that may have occurred after the evidence had been gathered. The Supreme Court disagreed because this was an incorrect interpretation of s. 10 as it purported to empower the Minister for Justice and Equality with a role in the investigation and prosecution of criminal offences that was clearly not intended by the legislature and would in any event have constitutional implications. The Court reached this conclusion following an examination of the statutory scheme and provisions for disclosures to persons whose authority to receive it derives from other provisions of the 2009 Act governed by the overarching constitutional due process safeguard. The Court found no infringement of section 10 as this provision is not relevant to the processes of investigation and trial of criminal offences.
In The People (DPP) v Hawthorn [2020] IECA 107, a controlled delivery of inert explosives was recorded by a member of the National Surveillance Unit who took a series of photographs some of which were tendered in evidence. One of the grounds of appeal from the Special Criminal Court of the offence of membership of an unlawful organisation was that admitting the photographs was an error as the photographing of events on the balcony outside the dwelling was regulated by the 2009 Act. The Court of Appeal rejected this ground of appeal. The suspects had been photographed on a balcony of a flat complex at a time they were in a place to which the public has access.
Section 14 of the 2009 Act provides that evidence obtained as a product of surveillance carried out under an authorisation or under an approval may be admitted as evidence in criminal proceedings notwithstanding errors or omissions in the authorisation. In The People (DPP) v Mallon [2011] IECCA 29, the Court of Criminal Appeal underscored the significance of this provision even though it has not yet been the subject of authoritative interpretation and application (para. 52).
There seems to be a deficiency with the 2009 Act in that the legislation does not include offences for unlawful counter-surveillance carried out by organised crime gangs. It is reasonable to assume there is widespread use of counter-surveillance by serious criminals who become more aware of covert surveillance policing and inevitably will employ highly sophisticated counter surveillance methods. The 2009 Act may require legislative intervention not only to protect the integrity of lawful covert surveillance operations but also to safeguard members in the performance of their statutory duties.
While proactive intelligence led policing strategies are clearly necessary and proportionate to combat serious crime, covert surveillance operations must be properly regulated and produce admissible evidence. Internal transparency accompanied by external judicial oversight is mandated to ensure that practice and legislative interpretation is compliant with constitutional and human rights in the criminal justice process. It is notable that the annual reviews of operation of the 2009 Act by designated judge of the High Court (mandated by s. 12) provide an insight into the high levels of compliance by the three state agencies.
Dr Ger Coffey, Lecturer in Law and member of the Centre for Crime, Justice and Victim Studies in the School of Law, UL. Course Director, LLM/MA in Human Rights in Criminal Justice.
Criminal Justice in Ireland 