Interception of Postal Packets and Telecommunications Messages (Regulation) Act , 1993

1. Definitions.

1.—In this Act—

“the Act of 1983” means the Postal and Telecommunications Services Act, 1983;

F1[“Act of 2024”means thePolicing, Security and Community Safety Act 2024;]

“authorisation” means an authorisation by the Minister of an interception;

F2[…]

“the Commissioner” means the Commissioner of the Garda Síochána;

“communication” means a postal packet or a telecommunications message;

“copy”, in relation to a communication intercepted pursuant to an authorisation, means any of the following, whether or not in the form of a document—

(a)any copy or transcript of the communication or any extract from, or summary of, the communication or transcript, and

(b)any record of the identities of the persons to or by whom the communication was sent;

F2[…]

F1[“Independent Examiner”has the same meaning as it has in the Act of 2024;]

“interception” means—

(a)an act—

(i)that consists of the opening or attempted opening of a postal packet addressed to any person or the delaying or detaining of any such postal packet or the doing of anything to prevent its due delivery or the authorising, suffering or permitting of another person (who is not the person to whom the postal packet is addressed) to do so, and

(ii)that, if done otherwise than in pursuance of a direction under section 110 of the Act of 1983, constitutes F3[an offence under section 53 of theCommunications Regulation (Postal Services) Act 2011],

or

(b)an act—

(i)that consists of the listening or attempted listening to, or the recording or attempted recording, by any means, in the course of its transmission, of a telecommunications message, other than such listening or recording, or such an attempt, where either the person on whose behalf the message is transmitted or the person intended to receive the message has consented to the listening or recording,

and

(ii)that, if done otherwise than in pursuance of a direction under section 110 of the Act of 1983, constitutes an offence under section 98 of that Act,

and cognate words shall be construed accordingly;

“the Minister” means the Minister for Justice;

“the nominated officer” means the officer of the Minister nominated by the Minister under section 6 of this Act for the purposes of this Act;

“postal packet” and “telecommunications message” have the meanings that they have respectively in the Act of 1983, but, for the avoidance of doubt, it is hereby declared that the latter expression includes a telegram;

“serious offence” means an offence which satisfies both of the following conditions:

(a)it is an offence for which a person aged 21 years or over, of full capacity and not previously convicted may be punished by imprisonment for a term of 5 years or more, and

(b)it is an offence—

(i)that involves loss of human life, serious personal injury or serious loss of or damage to property or a serious risk of any such loss, injury or damage,

(ii)that results or is likely to result in substantial gain, or

(iii)the facts and circumstances of which are such as to render it a specially serious case of its kind;

and includes an act or omission done or made outside the State that would be a serious offence if done or made in the State:

Provided, however, that an offence consisting of an attempt, conspiracy or incitement to commit an offence shall not be a serious offence unless the offence which is the subject of the attempt, conspiracy or incitement is itself a serious offence.

2. Authorisation of interceptions.

2.—(1)The Minister may give an authorisation, but only for the purpose of criminal investigation or in the interests of the security of the State.

(2)(a)Subject to paragraph (b) of this subsection, an authorisation shall be given by warrant under the hand of the Minister.

(b)If the Minister considers that the case is one of exceptional urgency, an authorisation may be given orally (whether by telephone or otherwise) by the Minister and, if it is so given, it shall be confirmed, as soon as may be, by warrant under the hand of the Minister.

(c)The nominated officer shall maintain a record of any authorisations given under paragraph (b).

(3)The Minister shall not give an authorisation unless he considers that the conditions specified in section 4 or 5 of this Act, as may be appropriate, stand fulfilled, and that there has not been a contravention of section 6 of this Act, in relation to the proposed interception.

(4)A warrant under this section—

(a)shall bear the date on which the authorisation to which it relates is given,

(b)shall state—

(i)whether the proposed interception is in relation to postal packets or telecommunications messages or both, and

(ii)that the requirements of this Act in relation to the giving of the authorisation to which the warrant relates have been complied with,

(c)shall specify—

(i)the postal address to which and (unless the Minister considers that to restrict the authorisation to which the warrant relates to a specified person or persons would be prejudicial to the purposes of the proposed interception) the person or persons to whom the proposed interception relates, or

(ii)the telecommunications address to which the proposed interception relates,

or, where appropriate, the matters specified in both subparagraphs (i) and (ii) of this paragraph, and

(d)may require the person to whom it is addressed to disclose the intercepted material to such persons as are specified in the warrant.

(5)Subject to sections 7 and 8 (6) of this Act, an authorisation shall remain in force for such period not exceeding 3 months from the date on which it is given as may be specified in the warrant and shall then cease to have effect unless that period is extended under subsection (6) of this section.

(6)(a)Subject to paragraph (b) of this subsection, the Minister may, from time to time as occasion requires while an authorisation is in force, by warrant under his hand extend the period for which the authorisation is in force for such further period not exceeding 3 months at a time as may be specified in the warrant.

(b)Subsections (2) (b), (3), (4) and (5) of this section shall apply in relation to an extension under this subsection as if it were an authorisation under subsection (1) of this section.

(7)The Minister may consult the F4[Independent Examiner] before deciding whether to give an authorisation, or extend the period for which an authorisation is in force, in any particular case or in a case of any particular class.

3. Restriction of power under Act of 1983 to require interceptions.

3.—A direction under section 110 of the Act of 1983 requiring an interception shall not be issued or remain in force unless there is in force an authorisation relating to the interception or the direction is a general one requiring an interception if and for so long as an authorisation is in force.

4. Conditions justifying interception for purpose of criminal investigation.

4.—The conditions referred to in section 2 of this Act in relation to an interception for the purpose of criminal investigation are—

(a)(i)that—

(I)investigations are being carried out F5[or theF6[Police Ombudsman]], or another public authority charged with the investigation of offences of the kind in question, concerning a serious offence or a suspected serious offence,

(II)investigations not involving interception have failed, or are likely to fail, to produce, or to produce sufficiently quickly, either or, as the case may be, both of the following, that is to say:

(A)information such as to show whether the offence has been committed or as to the facts relating to it,

(B)evidence for the purpose of criminal proceedings in relation to the offence,

and

(III)there is a reasonable prospect that the interception of postal packets sent to a particular postal address or of telecommunications messages sent to or from a particular telecommunications address would be of material assistance (by itself or in conjunction with other information or evidence) in providing information, or evidence, such as aforesaid,

or

(ii)that—

F5[(I)in the case of a serious offence that is apprehended but has not been committed, investigations are being carried out—

(A) for the purpose of preventing the commission of the offence, by the Garda Síochána or another public authority charged with the prevention of offences of the kind in question, or

(B) for the purpose of enabling the offence to be detected, if it is committed, by the Garda Síochána or theF6[Police Ombudsman]or another public authority charged with the investigation of offences of the kind in question,]

(II)investigations not involving interception have failed, or are likely to fail, to produce, or to produce sufficiently quickly, information as to the perpetrators, the time, the place, and the other circumstances, of the offence that would enable the offence to be prevented or detected, as the case may be, and

(III)there is a reasonable prospect that the interception of postal packets sent to a particular postal address or of telecommunications messages sent to or from a particular telecommunications address would be of material assistance (by itself or in conjunction with other information) in preventing or detecting the offence, as the case may be,

and

(b)that the importance of obtaining the information or evidence concerned is, having regard to all the circumstances and notwithstanding the importance of preserving the privacy of postal packets and telecommunications messages, sufficient to justify the interception.

5. Conditions justifying interception in interests of security of State.

5.—The conditions referred to in section 2 of this Act in relation to an interception in the interests of the security of the State are—

(a)that there are reasonable grounds for believing that particular activities that are endangering or likely to endanger the security of the State are being carried on or are proposed to be carried on,

(b)that investigations are being carried out by or on behalf of the person applying for the authorisation concerned to ascertain whether activities of the kind aforesaid are in fact being carried on or proposed to be carried on and, if so, by whom and their nature and extent,

(c)that investigations not involving interception have failed, or are likely to fail, to produce, or to produce sufficiently quickly, information that would show whether the activities are being carried on or proposed to be carried on and, if so, by whom and their nature and extent,

(d)that there is a reasonable prospect that the interception of postal packets sent to a particular postal address or of telecommunications messages sent to or from a particular telecommunications address would be of material assistance (by itself or in conjunction with other information) in providing information such as aforesaid, and

(e)that the importance of obtaining the information concerned is, having regard to all the circumstances and notwithstanding the importance of preserving the privacy of postal packets and telecommunications messages, sufficient to justify the interception.

6. Applications for authorisations.

6.—(1)An application for an authorisation—

(a)shall be made in writing—

F7[(i) in case the authorisation is for the purpose of criminal investigation, either by—

(I) the Commissioner, or

(II) theF8[Police Ombudsman], and]

(ii)in case the authorisation is in the interests of the security of the State, either by—

(I)the Commissioner, or

(II)the Chief of Staff of the Defence Forces,

and shall be sent or given to such officer (in this Act referred to as “the nominated officer”) of the Minister as may be nominated by the Minister for the purposes of this Act,

(b)shall include sufficient information to enable the Minister to determine whether the conditions specified in section 4 or 5, as the case may be, of this Act stand fulfilled in relation to the proposed interception, and

(c)shall, in the case of an application pursuant to paragraph (a) (ii) (II) of this subsection, be accompanied by a recommendation in writing of the Minister for Defence supporting the application.

(2)The nominated officer shall consider any application under this section and, having made any inquiries he thinks necessary, shall make a submission to the Minister signed by him and stating his opinion as to whether or not the conditions specified in section 4 or 5, as the case may be, of this Act stand fulfilled in relation to the proposed interception and stating, if in his opinion those conditions do not stand so fulfilled, in what respects they do not so stand.

(3)For the purpose of subsection (2) of this section, information which is in the possession of the nominated officer when he receives an application under this section (whether as the result of a previous application for an authorisation or otherwise) or which he receives after that time may be treated as if it had been included in the application.

(4)The duties of the nominated officer under this Act may in his absence be discharged by such officer of the Minister as may be designated by the Minister for the purpose.

7. Cesser of interceptions no longer required.

7.—If the Commissioner F9[, theF10[Police Ombudsman]] or the Chief of Staff of the Defence Forces, as may be appropriate, considers that interceptions to which an authorisation relates are no longer required, then, without delay—

(a)he shall so inform the nominated officer, and

(b)the latter shall inform the person to whom the warrant concerned is addressed,

and thereupon the authorisation shall cease to be in force.

8. F11[Duties of Independent Examiner in relation to Act.

8.—(1) The Independent Examiner shall undertake the duties specified in this section.

(2) The Independent Examiner shall have the duty of ascertaining whether the provisions of this Act are being complied with.

(3) For the purpose of performing his or her functions undersubsection (2), the Independent Examiner—

(a) shall have the power to investigate any case in which an authorisation has been given, and

(b) without prejudice to section 242 of the Act of 2024, shall have access to and may inspect any official documents relating to an authorisation or the application therefor.

(4) The Independent Examiner may, if he or she thinks it desirable to do so, communicate with the Taoiseach or the Minister on any matter concerning interceptions.

(5) Without prejudice to section 242 of the Act of 2024, every person who was concerned in, or has information relevant to, the making of the application for, or the giving of, an authorisation, or was otherwise concerned with the operation of any provision of this Act relating to the application or authorisation, shall give the Independent Examiner, on request by him or her, such information as is in his or her possession relating to the application or authorisation.

(6) If the Independent Examiner informs the Minister that he or she considers that a particular authorisation that is in force should not have been given or (because of circumstances arising after it had been given) should be cancelled or that the period for which it was in force should not have been extended or further extended, the Minister shall, as soon as may be, inform the Minister for Environment, Climate and Communications and shall then cancel the authorisation.

(7) Nothing in this section shall affect the functions of the Data Protection Commissioner under section 10 of theData Protection Act 1988and Part 6 of theData Protection Act 2018.]

9. Complaints procedure.

9.—(1)A contravention of a provision of section 2, 6, 7 or 8 (6) of this Act, or a failure to fulfil a condition specified in section 4 or 5 of this Act, in relation to an authorisation shall not of itself render the authorisation invalid or constitute a cause of action at the suit of a person affected by the authorisation, but any such contravention shall be subject to investigation in accordance with the subsequent provisions of this section and nothing in this subsection shall affect a cause of action for the infringement of a constitutional right.

(2)(a)There shall stand established the office of Complaints Referee and the holder of the office shall be known as the Complaints Referee and is referred to in this section as “the Referee”.

(b)A person appointed to be the Referee shall be a judge of the Circuit Court, a judge of the District Court or a person who is for the time being a practising barrister, or a practising solicitor, of not less than 10 years' standing.

(c)The Referee shall be appointed by the Taoiseach, shall hold office for a term of 5 years and, subject to the provisions of this subsection, shall be eligible for reappointment as the Referee.

(d)Subject to the provisions of this subsection, the terms and conditions, including terms and conditions relating—

(i)except in a case where the Referee is a judge of the Circuit Court or a judge of the District Court, to remuneration, and

(ii)to allowances for expenses,

upon which the Referee shall hold office shall be such as may be determined by the Minister, with the consent of the Minister for Finance, at the time of his appointment or reappointment.

(e)The Referee may at any time resign his office as the Referee by letter sent to the Taoiseach and the resignation shall take effect on and from the date of receipt of the letter.

(f)The Referee may be removed from office by the Taoiseach but only for stated misbehaviour or incapacity and upon resolutions passed by Dáil Éireann and by Seanad Éireann calling for his removal.

(3)A person who believes that a communication sent to or by him has been intercepted after the commencement of this Act in the course of its transmission by F12[a postal service provider (within the meaning of theCommunications Regulation (Postal Services) Act 2011)] or Bord Telecom Éireann may apply to the Referee for an investigation under this section into the matter.

(4)Where an application is made under this section (other than one appearing to the Referee to be frivolous or vexatious), the Referee shall investigate—

(a)whether a relevant authorisation was in force at the material time, and

(b)if so, whether there has been any contravention of a provision of section 2, 6, 7 or 8 (6) of this Act in relation to the authorisation.

(5)If, on an investigation under this section, the Referee concludes that there has been a contravention of a provision of section 2, 6, 7 or 8 (6) of this Act in relation to a relevant authorisation, he shall—

(a)notify the applicant concerned in writing of that conclusion,

(b)make a report of his findings to the Taoiseach, and

(c)if he thinks fit, by order do one or more of the following, that is to say: