Extension Of Phone Tapping Powers On The Regulatory Horizon?

Author:Ms Joanelle O'Cleirigh, Alan Coyne and Tara Roche
Profession:Arthur Cox
 
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Do regulatory agencies have phone tapping powers? For now, no - but there have been calls for the Government to give certain regulatory agencies, such as the Competition and Consumer Protection Commission (CCPC), powers to mount surveillance and intercept electronic communications to assist in the investigation of white collar crime.

The current position

There are strong protections for privacy rights in the Constitution and the European Convention on Human Rights (ECHR). The right to privacy was recognised by the Supreme Court in a 1987 case involving the tapping of journalists' phones, where the Supreme Court commented that unlawful phone tapping is an attack on human dignity.

Currently, the only state bodies that have the power to intercept communications are An Garda Síochána, the Garda Síochána Ombudsman Commission (GSOC) and the Defence Forces (where necessary in the interests of state security). This power is provided for in the Postal and Telecommunications Services Act 1983 and the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993.

Interception of communications

Communications may be intercepted on two grounds only: (i) in the interests of state security; or (ii) to aid in the investigation or prevention of certain crimes.

Where the interception is to aid in the investigation or prevention of crime, a number of safeguards apply:

An application to intercept a communication must be made to the Minister for Justice. The application can only be made by the Commissioner of An Garda Síochána or the Chairperson of GSOC. The Commissioner of An Garda Síochána or the Chairperson of GSOC (as the case may be) must satisfy the Minister that: an investigation is being carried out into a serious offence or to prevent a serious offence. (Broadly speaking, a serious offence for this purpose is an offence that carries at least a 5-year prison sentence and an additional aggravating factor such as damage to property or substantial gain); without interception the investigation will fail, is unlikely to produce the necessary information, or will take much longer to produce the necessary information; interception is likely to produce that information; and the importance of obtaining the information justifies the interception notwithstanding the interference with privacy. A designated judge of the High Court (currently Ms Justice Marie Baker) oversees the process and may investigate any case in which an...

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