The Criminal Justice (Surveillance) Act 2009: An Examination Of The Compatability Of The New Act With Article 8 Of The European Convention On Human Rights

Author:John Barry
Position:BBS (UL), Solicitor, LLM Criminal Justice (UCC)
Pages:17-32
[2010] COLR
THE CRIMINAL JUSTICE (SURVEILLANCE) ACT 2009:
AN EXAMINATION OF THE COMPATABILITY OF THE NEW ACT WITH
John Barry *
ABSTRACT
Prior to the enactment of the Criminal Justice (Surveillance) Act 2009, there was no law in
this State regulating the power of the Garda i to conduct covert surveillance. Gardai
nevertheless undertook this type of sur veillance and used the intelligence gained to assist in
the investigation of serious crimes. The enactment of the 2009 Act a ims to bring the law on
covert surveillance in Ireland into line with that of many European countries.
Notwithstanding this fact, there are some parts of the 2009 Act that require detailed analysis
in order determine its compatibility with article 8 of the European Convention on Human
Rights (ECHR). The European Court of Human Rights (ECtHR) has been to the forefront in
ensuring tha t surveillance law in European Union states meets certain key standards. These
standards such a s accessibility a nd foreseeability are addressed in detail in this paper in
order to determine whether the new Act will pass these judicial tests. Key issues such as the
lack of judicial control in issuing a uthorisations, the failure to define some of the main terms
such as State Security in the Act and the level of judicial oversight envisaged in the new Act
are a ll examined in this paper. These issues are analysed in detail and tested against the
case law of the ECtHR in order to see if the new Act complies with some of the keys decisions
of the ECtHR on covert surveillance.
A INTRODUCTION
The term covert surveillance covers a wide variety of surveillance techniques from
intercepting phone calls to physically following suspects and monitoring their movements.
Modern surveillance techniques utilise various types of electronic surveillance technology.
Initial research for this paper highlighted the fact that there was no law governing the
activities of Gardaí undertaking certain types of surveillance. Gardaí could intercept phone
calls and postal communications under the Interception of Postal Packets and
Telecommunications Messages (Regulation) Act, 1993 (hereinafter the 1993 Act) but there
was no legislation governing electronic surveillance such as covert listening devices, tracking
devices and covert cameras. The Garda National Surveillance Unit (NSU) has been in
operation for many years using modern technology to monitor the activities of suspects.
Perhaps one of the reasons the activities of the NSU do not receive widespread attention is
that they have not used the material from their surveillance activities in direct evidence. For
example, if the Gardaí secretly monitored a conversation in a pub, they would use this
information to aid a certain investigation but they would not use the actual recording as
evidence in a criminal trial.
The European Court of Human Rights (ECtHR) has been a key proponent of change
in the area of surveillance law with particular reference to article 8 of the European
Convention on Human Rights (ECHR).
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[2010] COLR
1 Irish law has to be compatible with the ECHR following the enactment of the European
Convention on Human Rights Act, 2003.2 An Garda Síochána undertakes surveillance in this
country to combat serious crime, drug trafficking and terrorist activity. Despite the fact that
there was no law in this jurisdiction governing certain types of surveillance, the Irish State
has not been before the ECtHR to justify this apparent legal vacuum in Irish surveillance law.
Notwithstanding that the Law Reform Commission had produced a report on this matter in
1998,3 it was events on the streets of Limerick, particularly the murder of Shane Geoghegan
that focused the mind of the current government and led to the enactment of the Criminal
Justice (Surveillance) Act, 2009 (hereinafter the 2009 Act). The jurisprudence of the ECtHR
in relation to the interception of communications and covert listening and monitoring brought
to the fore some potential legal deficiencies in Irish surveillance law notwithstanding the
introduction of the 2009 Act. The definitions of some of the key terms in the Act are
analysed and tested against the jurisprudence of the ECtHR. The absence of judicial
oversight is an issue in certain sections of the 2009 Act. Crucially, the question of who is
looking after the interests of the citizen in light of these new surveillance powers requires in-
depth analysis.
Article 8 of the ECHR guarantees a person‟s right to respect for his family and private
life4 and outlines how public authorities may only interfere with this right in specific
circumstances. Any interference must be in accordance with the law and necessary in a
democratic society in order to protect such interests as national security, prevention of crime
and public safety.5 Article 8 has been used by many EU citizens to challenge the use of
surveillance by member States to gather evidence against them. The ECtHR has examined
the legality of surveillance carried out by various public authorities within member States of
the European Union (EU). Irish citizens have been slow to challenge the legality of Garda
surveillance in the ECtHR unlike citizens of other EU States who have successfully
challenged the power of various public authorities to use surveillance to gather evidence. A
detailed analysis of the judgments will show how the lack of appropriate law in many
jurisdictions has resulted in breaches of article 8. The ECtHR has provided clear direction to
member States on the quality of the domestic legislation that is required in order for member
States to comply with article 8. In Klass v Germany,6 the ECtHR established the right of a
State to place its citizens under surveillance under certain specific situations. This case
related to a number of lawyers and a Judge who claimed that a German law, known as the
G10 Act,7 dealing with the monitoring of post and telecommunications was in breach of the
* BBS (UL), Solicitor, LLM Criminal Justice (UCC).
1 The European Convention on Human Rights (ECHR) sets forth a nu mber o f rights and freedoms such as the
right to life and the right to a fair trial. State parties to the convention undertake to secure these rights to
everyone within their jurisdiction. See Convention for the Protection of Human Rights a nd Fundamental
Freedoms, ETS. See n 4-5 for full definition of Article 8 of the ECHR.
2 The enactme nt of this Act obliged Ireland to adhere to the provisions of the European C onvention on Human
Rights.
3 See Law Reform Commission LRC 57-1998 Report on Privacy: Surveillance and the Inter ception of
Communications (Dublin Law Reform Commission 1998).
4 Art 8(1) of the ECHR provides as follows; “Everyone has the right to respect for his private life, his home and
his correspondence.”
5 Art 8(2) of the ECHR provides as follows; “There shall b e no interference with the exercise of this right except
such as is in accordance with the law and is nece ssary in a democratic society in the interests of national
security, public safety or the economic well-being of the cou ntry, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the rights and freedoms of others.”
6 Series A No 28 (1978) 2 EHRR 214 PC.
7 The applicants claimed that Art 10, para 2 of the Basic Law (Gr undgesetz) and a statute enacted in p ursuance
of that provision, namely the Act of 13 August 1968 on Restrictions on the Secrecy of the Mail, Post and
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