Who will police the police?

 
 

Surveillance powers will strengthen the arm of gardaí against organised crime but they may be a cause of concern for the rest of us too, writes Eoin Martin.

Not for the first time in the space of the last decade and a half, a wave of vicious gang-related crimes have prompted public and political calls for serious action. In 1996, the murder of Veronica Guerin led to a radical rethink of how the gardaí tackle organised crime in this country. In the last few months, the murders of Shane Geoghegan and Roy Collins in Limerick have had a similar effect on the political establishment.

The new Criminal Justice (Surveillance) Bill is the latest in a series of legal responses to such outcries. In the past, the establishment of the Criminal Assets Bureau, reform of the right to silence and increased use of mandatory minimum sentences have been deployed by the Government with varying degrees of success and provoking considerable controversy in the fight against organised crime.

The new bill will allow evidence gathered by means of covert surveillance to be used in court. More radically, it also authorises gardaí, customs and revenue officials and members of the Defence Forces to break into private property where necessary to plant bugging equipment, usually but not always with the prior permission of a judge.

As with previous changes, to law-abiding members of the public, it may seem like a no-brainer to simply empower the gardaí to do whatever they need to do to catch the worst people in our society. As before however, these new provisions involve serious encroachments on previously highly prized rights like right to privacy and the inviolability of the home.

dermotahernSome fears have been expressed in the media that Ireland might see the same abuses as Britain where local councils used new surveillance powers to check if people were paying their bin taxes and other equally mundane and annoying things. This sort of nanny state result is probably unlikely to occur here as the surveillance powers will be limited in terms of who can use them and why.

In most cases, gardaí will require authorisation from a judge for sustained periods of bugging though in certain circumstances the permission of a senior officer will suffice. The main safeguard against the English type of abuse is that the whole purpose of gathering the evidence is to use it in court and if judges consider the rules are being repeatedly flouted they are likely to crack down on such practices.

Abuses could still happen though. It’s not insignificant that the right to privacy was established in an Irish court because the then-Minister for Justice illegally authorised the bugging of two journalists’ phones in the 1980s.

“If you’re going to ride rough-shod over fundamental constitutional principles, at least talk about it first”

The second limb of the new bill contains the potentially greater threat. Obviously it may be necessary for law enforcement agencies to break into properties to plant bugging equipment but this power should have more than the usual amount of oversight. The principle that police cannot come rushing into your home without permission is explicitly spelled out in the constitution.

If it was just the Army’s Military Intelligence Directorate breaking into a house, that might not be so bad. Their purpose would be almost certainly confined to surveillance and nothing more. With gardaí however, there’s more of a conflict of interests.

Gardaí investigate and build cases to prosecute criminal offences and there would be a much greater fear, especially where the raid was authorised by another garda rather than by a judge, that there would be a temptation to either plant evidence or remove evidence while ‘lawfully’ in the suspect’s house. They could also carry out an impromptu but unauthorised search and no one would know.

This particular aspect of the bill probably could have been more tightly drafted. There could be a requirement for a judge’s warrant for every break-in or if it has to be done quickly, for retrospective reporting before a judge. The gardaí were no doubt anxious however to have as many expedient options on the table as possible and the Minister was only too happy to oblige.

Part of the problem from a civil liberties point of view is that these sort of draconian measures receive very little scrutiny in the Dáil. Fine Gael likes to be seen as the party of law and order and has been calling for these measures for some time. Labour too though, traditionally liberal, has had a tough stance on crime since it was in government in the wake of Veronica Guerin’s death in 1996.

Bipartisanship is one thing and equally it’s fine for political parties to have a view on such policy issues but they also have a duty as the opposition not to give the Government an easy ride when such extreme laws are involved. If you’re going to ride rough-shod over fundamental constitutional principles, at least talk about it first. Fine Gael seem as if they would be prepared to vote through the bill without any debate at all.

There are no easy solutions to serious organised crime and tough legal measures are inevitably going to continue to feature as part of the response. More should be done to tackle the root causes of crime too but to some extent that requires a less crime-ridden environment to succeed.

Civil liberties are for everyone however and we should be careful about playing too fast and loose with them. You never know when you’ll need them. The old adage that an innocent man has nothing to hide is a dubious way to proceed. It assumes the state can do no wrong and the citizen is likely to be doing wrong if he’s hiding something. That’s a bit simplistic to say the least. Even though we’re lucky to live in one of the world’s most stable countries, our short history has shown that it’s just as important to keep a beady eye on our politicians and police as for them to keep a beady eye on us.

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