Criminal Justice (Surveillance) Act 2009

1. Interpretation.

1.— In this Act—

“Act of 1993” means the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993;

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

“arrestable offence” has the meaning it has in section 2 (as amended by section 8 of the Criminal Justice Act 2006) of the Criminal Law Act 1997;

“authorisation” means an authorisation for the carrying out of surveillance issued under section 5or varied or renewed under section 6;

F2[“authorised officer" has the meaning it has in the Competition and Consumer Protection Act 2014;]

F3[F4[…]

F4[…]]

F1[“designated officer of the Police Ombudsman“means a designated officer within the meaning of the Act of 2024;]

“document” includes—

(a) any book, record or other written or printed material in any form, and

(b) any recording, including any data or information stored, maintained or preserved electronically or otherwise than in legible form;

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

“judge” means a judge of the District Court;

“member of the Defence Forces” means a member of the Defence Forces within the meaning of section 1 of the Defence (Amendment) Act 1990, other than a member of the Reserve Defence Force within the meaning of the Defence Act 1954;

“member of the Garda Síochána”F5[means a member of An Garda Síochána within the meaning of theAct of 2024, other than a member of the rank of reserve garda];

F3[F4[…]]

“Minister” means the Minister for Justice, Equality and Law Reform;

F3[F4[…]]

“place” includes—

(a) a dwelling or other building,

(b) a vehicle, whether mechanically propelled or not,

(c) a vessel, whether sea-going or not,

(d) an aircraft, whether capable of operation or not, and

(e) a hovercraft;

F2["relevant competition offence" means an offence under section 6 of the Competition Act 2002 involving an agreement, decision or concerted practice to which subsection (2) of that section applies;]

“relevant Minister” means—

F6[(a) the Minister—

(i) in relation to approvals granted by a superior officer of, and documents and information in the custody of, the Garda Síochána, and

(ii) in relation to approvals granted by a superior officer of, and documents and information in the custody of, theF5[Police Ombudsman],]

F7[(aa) the Minister for Enterprise, Trade and Employment, in relation to approvals granted by a superior officer of, and documents and information in the custody of, the Competition and Consumer Protection Commission,]

(b) the Minister for Defence, in relation to approvals granted by a superior officer of, and documents and information in the custody of, the Defence Forces, and

(c) the Minister for Finance, in relation to approvals granted by a superior officer of, and documents and information in the custody of, the Revenue Commissioners;

“revenue offence” means an offence under any of the following provisions that is an arrestable offence:

(a) section 186 of the Customs Consolidation Act 1876;

(b) section 1078 of the Taxes Consolidation Act 1997;

(c) section 102 of the Finance Act 1999;

(d) section 119 of the Finance Act 2001;

(e) section 79 (inserted by section 62 of the Finance Act 2005) of the Finance Act 2003;

(f) section 78 of the Finance Act 2005;

F1[“senior designated officer of the Police Ombudsman“means a senior designated officer within the meaning of the Act of 2024;]

“superior officer” means—

(a) in the case of the Garda Síochána, a member of the Garda Síochána not below the rank of superintendent;

F3[(aa)F5[in the case of the Police Ombudsman, a senior designated officer of the Police Ombudsman;]]

(b) in the case of the Defence Forces, a member of the Defence Forces not below the rank of F8[colonel;]

(c) in the case of the Revenue Commissioners, an officer of the Revenue Commissioners not below the rank of F8[principal officer; and]

F9[(d) in the case of the Competition and Consumer Protection Commission, an authorised officer not below the rank of principal officer;]

“surveillance” means—

(a) monitoring, observing, listening to or making a recording of a particular person or group of persons or their movements, activities and communications, or

(b) monitoring or making a recording of places or things,

by or with the assistance of surveillance devices;

“surveillance device” means an apparatus designed or adapted for use in surveillance, but does not include—

(a) an apparatus designed to enhance visual acuity or night vision, to the extent to which it is not used to make a recording of any person who, or any place or thing that, is being monitored or observed,

(b) a CCTV within the meaning of section 38 of the Garda Síochána Act 2005, or

(c) a F10[camera (including a video camera)], to the extent to which it is used to take F10[photographs or video footage] of any person who, or any thing that, is in a place to which the public have access;

“tracking device” means a surveillance device that is used only for the purpose of providing information regarding the location of a person, vehicle or thing;

“written record of approval” means a written record of approval prepared by a superior officer under section 7 (6) or 8 (6).

2. Application of Act.

2.— (1) This Act applies to surveillance carried out by members of the Garda Síochána, F11[designated officers of theF12[Police Ombudsman],] F13[members of the Defence Forces, officers of the Revenue Commissioners and authorised officers of the Competition and Consumer Protection Commission].

(2) Nothing in this Act shall render unlawful any activity that would otherwise be lawful.

(3) An authorisation or approval under this Act may not be issued or granted in respect of an activity that would constitute an interception within the meaning of the Act of 1993.

(4) For the avoidance of doubt, it is hereby declared that this Act does not apply to the following:

(a) the use of a closed circuit television system in a Garda Síochána station;

(b) the recording by electronic or other similar means under section 27 of the Criminal Justice Act 1984 of the questioning of a person by members of the Garda Síochána F11[or designated officers of theF12[Police Ombudsman]] at Garda Síochána stations or elsewhere in connection with the investigation of offences;

(c) the recording by electronic or other similar means of any evidence given, or statement made, by a person for the purposes of any court proceedings.

F14[(5) This Act shall not apply to processing (including recording) to which the Garda Síochána (Recording Devices) Act 2023 applies.]

3. Surveillance.

3.— A member of the Garda Síochána, F15[a designated officer of theF16[Police Ombudsman],] F17[a member of the Defence Forces, an officer of the Revenue Commissioners or an authorised officer of the Competition and Consumer Protection Commission] shall carry out surveillance only in accordance with a valid authorisation or an approval granted in accordance with section 7 or 8.

4. Application for authorisation.

4.— (1) A superior officer of the Garda Síochána may apply to a judge for an authorisation where he or she has reasonable grounds for believing that—

(a) as part of an operation or investigation being conducted by the Garda Síochána concerning an arrestable offence, the surveillance being sought to be authorised is necessary for the purposes of obtaining information as to whether the offence has been committed or as to the circumstances relating to the commission of the offence, or obtaining evidence for the purposes of proceedings in relation to the offence,

(b) the surveillance being sought to be authorised is necessary for the purpose of preventing the commission of arrestable offences, or

(c) the surveillance being sought to be authorised is necessary for the purpose of maintaining the security of the State.

F18[(1A) A superior officer of theF19[Police Ombudsman]may apply to a judge for an authorisation where he or she has reasonable grounds for believing that as part of an investigation being conducted by theF19[Police Ombudsman]concerning an arrestable offence, the surveillance being sought to be authorised is necessary for the purposes of obtaining information as to whether the offence has been committed or as to the circumstances relating to the commission of the offence, or obtaining evidence for the purposes of proceedings in relation to the offence.]

(2) A superior officer of the Defence Forces may apply to a judge for an authorisation where he or she has reasonable grounds for believing that the surveillance being sought to be authorised is necessary for the purpose of maintaining the security of the State.

(3) A superior officer of the Revenue Commissioners may apply to a judge for an authorisation where he or she has reasonable grounds for believing that—

(a) as part of an operation or investigation being conducted by the Revenue Commissioners concerning a revenue offence, the surveillance being sought to be authorised is necessary for the purpose of obtaining information as to whether the offence has been committed or as to the circumstances relating to the commission of the offence, or obtaining evidence for the purpose of proceedings in relation to the offence, or

(b) the surveillance being sought to be authorised is necessary for the purpose of preventing the commission of revenue offences.

F20[(3A) A superior officer of the Competition and Consumer Protection Commission may apply to a judge for an authorisation where he or she has reasonable grounds for believing that, as part of an investigation being conducted by the Competition and Consumer Protection Commission concerning a relevant competition offence, the surveillance being sought to be authorised is necessary for the purposes of obtaining information as to whether the offence has been committed or as to the circumstances relating to the commission of the offence, or obtaining evidence for the purposes of proceedings in relation to the offence.]

(4) In a case in which surveillance carried out under section 7 is sought under subsection (10)of that section to be continued by application under this section, the information on oath supporting the application shall include a copy of the written record of approval concerned, a summary of the results of the surveillance carried out and the reasons why continued surveillance is required.

(5) A superior officer who makes an application under F21[subsection (1),(1A),(2),F22[(3),(3A)or(4)]] shall also have reasonable grounds for believing that the surveillance being sought to be authorised is—

(a) the least intrusive means available, having regard to its objectives and other relevant considerations,

(b) proportionate to its objectives, having regard to all the circumstances including its likely impact on the rights of any person, and

(c) of a duration that is reasonably required to achieve its objectives.

5. Authorisation.

5.— (1) An application under section 4 for an authorisation and under section 6 for a variation or renewal of an authorisation—

(a) shall be made ex parte and shall be heard otherwise than in public, and

(b) may be made to a judge assigned to any district court district.

(2) Subject to subsection (4), the judge shall issue such authorisation as he or she considers reasonable, if satisfied by information on oath of the superior officer concerned that—

(a) F23[the requirements specified insubsection (1),F24[(2),(3)or(3A)], as the case may be, ofsection 4] are fulfilled, and

(b) to do so is justified, having regard to the matters referred to in section 4 (5) and all other relevant circumstances.

(3) An information on oath of a superior officer specifying the grounds for his or her belief that the surveillance is necessary for the purpose of preventing the commission of arrestable offences referred to in section 4 (1) (b), or the commission of revenue offences referred to in section 4 (3) (b), need not specify a particular arrestable offence or a particular revenue offence, as the case may be, in respect of which the authorisation is being sought.

(4) The judge shall not issue an authorisation if he or she is satisfied that the surveillance being sought to be authorised is likely to relate primarily to communications protected by privilege.

(5) An authorisation may impose such conditions in respect of the surveillance authorised as the judge considers appropriate.

(6) An authorisation shall be in writing and shall specify—

(a) particulars of the surveillance device that is authorised to be used,

(b) the person who, or the place or thing that, is to be the subject of the surveillance,

(c) the name of the superior officer to whom it is issued,

(d) the conditions (if any) subject to which the authorisation is issued, and

(e) the date of expiry of the authorisation.

(7) An authorisation may authorise the superior officer named in it, or any member of the Garda Síochána, F25[any designated officer of theF26[Police Ombudsman],] any member of the Defence F24[Forces, any authorised officer of the Competition and Consumer Protection Commission or any officer of the Revenue Commissioners] designated by that superior officer, accompanied by any other person whom he or she considers necessary, to enter, if necessary by the use of reasonable force, any place for the purposes of initiating or carrying out the authorised surveillance, and withdrawing the authorised surveillance device, without the consent of a person who owns or is in charge of the place.

(8) An authorisation shall expire on the day fixed by the judge that he or she considers reasonable in the circumstances and that is not later than 3 months from the day on which it is issued.

(9) Subject to any conditions imposed by the judge under subsection (5), an authorisation shall have effect both within the district court district to which the judge is assigned and in any other part of the State.

6. Variation or renewal of authorisation.

6.— (1) A judge may, on application in that behalf by the superior officer to whom an authorisation was issued, if satisfied by information on oath of that superior officer justifying the variation or renewal of the authorisation—

(a) vary the authorisation, or

(b) renew the authorisation, on the same or different conditions, for such further period, not exceeding 3 months, as the judge considers appropriate.

(2) An application for a renewal under this section shall be made before the authorisation concerned, or any previous renewal of that authorisation, as the case may be, has expired.

(3) Where an application for a renewal under this section has been made and the authorisation concerned would, but for this subsection, expire during the hearing of the application, it shall be deemed not to expire until the determination of the application.

7. Approval for surveillance in cases of urgency.

7.— (1) A member of the Garda Síochána, F27[a designated officer of theF28[Police Ombudsman],] F29[a member of the Defence Forces, an officer of the Revenue Commissioners or an authorised officer of the Competition and Consumer Protection Commission] may carry out surveillance without an authorisation if the surveillance has been approved by a superior officer in accordance with this section.

(2) A member or officer referred to in subsection (1) may apply to a superior officer for the grant of an approval to carry out surveillance if he or she believes on reasonable grounds that F30[the requirements ofsubsection (1),F29[(2),(3)or(3A)], as the case may be, ofsection 4] are fulfilled and that the surveillance is justified having regard to the matters referred to in section 4(5), but that, before an authorisation could be issued—

(a) it is likely that a person would abscond for the purpose of avoiding justice, obstruct the course of justice or commit an F29[arrestable offence, revenue offence or relevant competition offence, as the case may be],

(b) information or evidence in relation to the commission of an F29[arrestable offence, revenue offence or relevant competition offence, as the case may be], is likely to be destroyed, lost or otherwise become unavailable, or

(c) the security of the State would be likely to be compromised.

(3) A superior officer to whom an application under subsection (2)is made shall approve the carrying out of such surveillance as he or she considers appropriate, having regard to the information in the application, if he or she is satisfied that there are reasonable grounds for believing that an authorisation would be issued under section 5but that one or more of the conditions of urgency specified in subsection (2) apply.

(4) An approval may be granted subject to conditions, including as to the duration of the surveillance.

(5) An approval under this section permits the member or officer concerned, accompanied by any other person whom he or she considers necessary, to enter, if necessary by the use of reasonable force, any place for the purposes of initiating or carrying out the approved surveillance, and withdrawing the approved surveillance device, without the consent of a person who owns or is in charge of the place.

(6) A superior officer who approves the carrying out of surveillance under this section shall, as soon as practicable and, in any case, not later than 8 hours after the surveillance has been approved, prepare a written record of approval of that surveillance.

(7) A written record of approval shall be in such form as the relevant Minister may prescribe by regulations and shall include—

(a) particulars of the surveillance device that is approved to be used,

(b) the person who, or the place or thing that, is to be the subject of the surveillance,

(c) the name of the member of the Garda Síochána, F27[designated officer of theF28[Police Ombudsman],] F29[member of the Defence Forces, officer of the Revenue Commissioners or authorised officer of the Competition and Consumer Protection Commission] to whom the approval is granted,

(d) the conditions (if any) subject to which the approval is granted,

(e) the time at which the approval is granted, and