This article was originally published on the School of Law blog https://criminaljusticeinireland.wordpress.com.
Professor Shane Kilcommins and Dr Eimear Spain, Centre for Crime, Justice and Victim Studies, School of Law, University of Limerick // Original article
The Garda Síochána Ombudsman Commission is an independent agency established under the Garda Síochána Act 2005 to deal with matters involving possible misconduct by members of An Garda Síochána. Last month (February 2016) it was revealed that it scrutinised the phone records of two journalists. The Minister for Justice and Equality, Frances Fitzgerald, has appointed Mr Justice John Murray to carry out a review of the legislative framework in respect of access to communications data of journalists. In defending the use of such powers, the current GSOC Commissioners pointed out that it was the legislative body of the State which made Garda leaks a serious offence, and it was also the same body which granted powers to access phone records and internet data to GSOC. As the Commissioners noted: “GSOC must use any lawful means provided by the legislature ‘to ensure that its functions are performed in an efficient and effective manner…’”.
What are GSOC’s powers to access phone records?
Upon establishment in 2005, designated officers within GSOC were conferred with all the powers conferred on any member of An Garda Síochána, with limited exclusions. The powers given to designated officers of GSOC included the power to request phone records under two separate pieces of legislation, the Postal and Telecommunications Act 1983 and the Criminal Justice (Terrorist Offences) Act 2005. The 2005 Act was replaced by the Communications (Retention of Data) Act 2011 which provides under section 6 that a member of An Garda Síochána not below the rank of Chief Superintendent could request data from service providers. While GSOC was not mentioned in the section 6 access provision, as the Act conferred powers on members of An Garda Síochána, it is reasonable to argue that GSOC had an implied power under the 2011 Act. Nevertheless such an interpretation raises a number of concerns.
What are the potential issues with GSOC’s accessing of phone records under the 2011 Act?
The first concern relates to clarity around the existence of GSOC’s powers to access data under the 2011 Act. While it may be implied that the powers conferred upon An Garda Síochána by section 6 were also conferred upon GSOC, it is significant in this regard that section 12 of the Act, which provides for judicial oversight of compliance by the various agencies with powers under the Act, makes no reference to GSOC as one of the bodies subject to review. If the legislature intended to confer the relevant powers on GSOC, why did it not specifically reference it in the review provision under section 12 given that it did so with the other agencies? It is important to note here that the 2005 Act confers the powers, immunities and privileges of members of An Garda Síochána on designated officers of GSOC. While the 2005 Act specifically equates personnel within the two organisations, at no point in the 2005 Act is GSOC equated with An Garda Síochána. Section 12 can therefore not be read as providing for a review of compliance by GSOC with the terms of the Act by the designated High Court judge. Furthermore, legal commentaries on the 2011 Act in the Annotated Statutes and Bar Review did not refer to GSOC in their interpretations of the agencies conferred with powers under section 6 of the 2011 Act. Given the value placed by society on the autonomy of the individual, it follows that our laws should be predictable and certain so as to ensure that each citizen has fair opportunity to know the rules and how they will be applied.
Given such ambiguity, one wonders whether GSOC sought clarification on its interpretation of section 6 of the 2011 Act, particularly in the light of the rights at stake and its absence from the provision for review under section 12. In this regard it is interesting to note that the European Court of Human Rights has noted as far back as 1984 that because the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, ‘the substantive law itself…must indicate the scope and manner of exercise of any such discretion with sufficient clarity’ (Malone v United Kingdom).
There are also questions to be addressed in relation to the oversight process between 2011 and 2014. The European Convention of Human Rights demands at a minimum that oversight mechanisms in respect of surveillance ‘must be vested with sufficient powers and competence to exercise an effective and continuous control over the surveillance’. It is not clear what oversight existed in relation to exercise of powers by GSOC under the 2011 Act until 2014. The designated judge under section 12 of the 2011Act makes no reference to GSOC in his 2011, 2012 or 2013 reports. It is only in the 2014 report that the designated judge mentions for the first time that he ‘attended the Office of An Garda Síochána Ombudsman Commission’. The report of 2015 also mentions that GSOC was visited. The legitimate question this begs is whether GSOC was using its perceived powers under the 2011 Act prior to 2014, and, if so, what independent oversight was in place in that period. If it was using its powers under the Act between 2011 and 2014, but was not subject to oversight, does this have consequences for information gathered by GSOC during that period? If, as seems to be the case, powers to access data records were also exercised by GSOC between 2005-2011, the question of whether there was any oversight of the exercise of those powers also looms large. Again there is no reference to oversight of compliance by GSOC in any publically available reports by the designated judge in the relevant period. Such practices would have to be measured against the ECHR jurisprudence highlighted above.
Finally, when the legislature confers powers on any agency to suspend or qualify the individual rights of citizens it should, where possible, not do so by implication. Catch-all provisions, such as that provided for under section 98 of the Garda Síochána Act 2005, conferring all Garda powers on designated officers of GSOC, whether the power was in existence in 2005 or given to members of the Garda Síochána subsequently, do not facilitate or promote reflection about the rights of citizens in the Dáil.
The right to privacy is viewed as a fundamental right that promotes autonomy and human dignity whilst also ensuring democratic freedom of association and expression. If the essence of such a right is to be protected and valued in a society, it requires that any limitations on its exercise should be justified, laid down in clear law and should apply only so far as is strictly necessary, and have robust, continuous, and effective statutory oversight mechanisms. Even from a simple analysis of the legislative process through which powers of surveillance have been conferred on GSOC, it is not clear that the legislature is taking such rights very seriously in Ireland.