Garda Síochána (Recording Devices) Act 2023

PART 1 PRELIMINARY AND GENERAL

1. Short title and commencement

1. (1) This Act may be cited as the Garda Síochána (Recording Devices) Act 2023.

(2) This Act shall come into operation on such day or days as the Minister may by order or orders appoint either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

2. Interpretation

2. In this Act—

“Act of 2005” means the Garda Síochána Act 2005;

“Act of 2009” means the Criminal Justice (Surveillance) Act 2009;

“Act of 2018” means the Data Protection Act 2018;

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

“ANPR” means the system or technology commonly known as automatic number plate recognition;

“body-worn camera” means a recording device affixed to or contained in—

(a) clothing,

(b) a uniform, or

(c) headgear (including a helmet);

“CCTV” means a closed circuit television system of one or more recording devices and includes any system for processing the images, any accompanying sounds, or other information obtained by those recording devices;

“code of practice” means a code of practice approved by the Minister by order under Part 8 and includes part of a code of practice;

“data protection impact assessment” means a data protection impact assessment conducted in accordance with section 84 of the Act of 2018;

“document” means—

(a) a book, record or other written or printed material,

(b) a photograph,

(c) any information stored, maintained or preserved by means of any mechanical or electronic device, whether or not stored, maintained or preserved in legible form, and

(d) any audio or video recording;

“member of Garda personnel” means—

(a) a member of the Garda Síochána, or

(b) a member of F2[garda staff within the meaning of theAct of 2024];

“member of the Garda Síochána” means a member within the meaning of F2[theAct of 2024];

“Minister” means the Minister for Justice;

“personal data” means information relating to—

(a) an identified living individual, or

(b) a living individual who can be identified from the data, directly or indirectly, in particular by reference to—

(i) an identifier such as a name, an identification number, location data or an online identifier, or

(ii) one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of the individual;

“processing”, of or in relation to data (including personal data), means an operation or a set of operations that is performed on the data or on sets of the data, whether or not by automated means, including—

(a) the collection, recording, organisation, structuring or storage of the data,

(b) the adaptation or alteration of the data,

(c) the retrieval, consultation or use of the data,

(d) the disclosure of the data by their transmission, dissemination or otherwise making the data available,

(e) the alignment or combination of the data, or

(f) the restriction, erasure or destruction of the data;

“public place” means a place to which the public have or are permitted access, whether as of right or by express or implied permission and whether subject to or free of charge;

“recording device”—

(a) means a device or system that is capable of creating a record in any medium from which visual images (including moving visual images) or sounds, or both, may, by any means, be reproduced,

(b) includes any devices or systems that are capable of processing the record made under paragraph (a), which may include—

(i) reproducing by any means the visual images (including moving visual images) or sounds concerned,

(ii) using ANPR in respect of the record, or

(iii) producing a document relating to the record or the processing concerned,

and

(c) includes any device or system referred to in paragraph (a) or (b) that is in or affixed to a vehicle or a structure;

“structure” means any building, erection, structure or other thing constructed, erected, or made on, in or under any land, or any part of a structure so defined;

“vehicle” means any means in or by which any person or thing, or both, is transported or conveyed that is designed for use or may be used on land, in water or in the air, or in more than one of those ways, and includes an unmanned aerial vehicle.

3. Orders and regulations

3. (1) The Minister may make regulations for the purpose of enabling any provision of this Act to have full effect.

(2) Regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulation.

(3) Every order (other than an order under F3[section 1(2)]) and regulation under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order or regulation is passed by either such House within the next 21 days on which that House sits after the order or regulation is laid before it, the order or regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.

4. Application of Act

4. (1) Nothing in this Act shall affect the validity of a recording or processing, of a type that is governed by a provision of this Act, that is created or carried out, as the case may be, before the coming into operation of the provision.

(2) Nothing in this Act shall render unlawful any action of a member of Garda personnel with respect to data that is not personal data (including obtaining, retaining or processing that data) that would otherwise be lawful.

(3) This Act shall not apply to the following:

(a) the recording by electronic or other similar means under regulations made under section 27 of the Criminal Justice Act 1984 of the questioning of a person by a member of the Garda Síochána at Garda Síochána stations or elsewhere in connection with the investigation of offences;

(b) a recording referred to in paragraph (a) or (b) of section 16(1) of the Criminal Evidence Act 1992;

(c) surveillance carried out in accordance with—

(i) a valid authorisation given under, or

(ii) an approval given in accordance with section 7 or 8 of,

the Act of 2009.

(4) For the avoidance of doubt, the provisions of this Act are without prejudice to the provisions of the Data Protection Acts 1988 to 2018.

5. Expenses

5. The expenses incurred by the Minister and the Commissioner of the Garda Síochána in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure, National Development Plan Delivery and Reform, be paid out of moneys provided by the Oireachtas.

6. Repeal and revocation

6. (1) Subject to section 7, section 38 of the Act of 2005 is repealed.

(2) Notwithstanding the manner of revocation provided for in section 59 (3) of the Garda Síochána (Policing Authority and Miscellaneous Provisions) Act 2015, the Garda Síochána (CCTV) Order 2006 (S.I. No. 289 of 2006) is revoked.

7. Transitional provisions

7. (1) Notwithstanding the repeal of section 38 of the Act of 2005 by section 6(1)—

(a) an authorisation given by the Commissioner of the Garda Síochána under the said section 38 that is in force on the date of the coming into operation of this section shall, subject to subsection (2), remain in force after that date, and

(b) the said section 38 shall remain in force in respect of such authorisations for a period of 4 years after that date.

(2) An authorisation referred to in subsection (1) shall expire—

(a) subject to paragraph (b), after a period of 4 years has elapsed after the date of the coming into operation of this section, or

(b) in the case of an authorisation given under section 38(3)(c) of the Act of 2005, on its revocation by the Commissioner of the Garda Síochána under section 38(8)(b) of the Act of 2005, or on the expiry of the period referred to in paragraph (a), whichever is the earlier.

PART 2 Operation of Recording Devices by Members of Garda Personnel

8. Application of Part 2

8. This Part shall not apply to recording devices that are being operated for the purposes of CCTV or ANPR.

9. Operation of recording devices generally

9. (1) Subject to this Part, a member of Garda personnel acting in the course of his or her duties may operate or cause to be operated—

(a) a recording device in—

(i) a public place, or

(ii) any other place—

(I) under a power of entry authorised by law,

(II) to which he or she was expressly or impliedly invited or permitted to be, or

(III) in which he or she is present for the purposes of the performance of his or her functions as such a member,

(b) a recording device worn on any animal controlled by him or her, in—

(i) a public place, or

(ii) any other place, where, if the member were in the same location as the recording device, the member could be in that place—

(I) under a power of entry authorised by law,

(II) as a result of being expressly or impliedly invited or permitted to be, or

(III) for the purposes of the performance of his or her functions as such a member,

or

(c) a recording device that is remotely controlled, including a device affixed to or part of an unmanned aerial vehicle.

(2) A member of Garda personnel shall not operate, or cause to be operated, a recording device unless for one of the following principal purposes:

(a) the prevention, investigation, detection or prosecution of criminal offences;

(b) safeguarding against, and the prevention of, threats to public security, including securing public safety and public order;

(c) the protection of the security of the State;

(d) the execution of criminal penalties.

(3) Without prejudice to the generality of subsection (2), a member of Garda personnel may operate a recording device where he or she—

(a) believes on reasonable grounds that an offence has been, is being, or will be committed,

(b) believes on reasonable grounds that he or she may be required to exercise force to fulfil his or her duties,

(c) is executing a court order or a warrant,

(d) is recording damage to property as a result of an offence or an act of violence or force,

(e) is recording an individual where—

(i) the member believes on reasonable grounds that the immediate making of a record by the individual is necessary and the individual is unable to write,

(ii) the member believes on reasonable grounds that the individual is dying and that he or she had been a victim of, or a witness to, an offence,

(iii) the member believes on reasonable grounds that domestic violence is occurring or may have occurred,

(iv) the member believes on reasonable grounds that a breach of the peace or a public order offence is occurring or may have occurred,

(v) the recording is of injuries to the individual that the member believes on reasonable grounds were sustained as a result of an offence or of an act of violence or force,

or

(f) considers on reasonable grounds that it is required for the performance of his or her functions.

(4) The operation of a recording device under this section—

(a) shall be necessary and proportionate with regard to the purposes of that operation under subsection (2), and, where applicable, subsection (3), and

(b) shall be presumed to be so necessary and proportionate if that operation is in accordance with an applicable code of practice.

(5) Where a member of Garda personnel is operating a recording device—

(a) subject to paragraph (b) and, in relation to body-worn cameras, section 10, the operation shall, in so far as practicable, be overt, and

(b) he or she shall, when operating the device in a dwelling, and where appropriate, notify the occupants at the start of the operation and record the notification.

10. Additional provisions regarding operation of body-worn cameras

10. A member of Garda personnel shall ensure that a body-worn camera being operated, or caused to be operated, by him or her (whether being worn by him or her or by an animal)—

(a) is visible on the clothing, uniform or headgear (including, where appropriate, the clothing, uniform or headgear of the animal) on which it is located, and

(b) has a visible indicator showing when it is being operated.

11. Power to process data obtained under this Part

11. A member of Garda personnel may, for a purpose referred to in section 9(2), and in accordance with an applicable code of practice, process data (including personal data) obtained as a result of the operation of a recording device under this Part.

12. Offences under this Part

12. (1) A person who, without lawful authority or reasonable excuse, knowingly does any of the following:

(a) falsifies, conceals, destroys or otherwise disposes of information (including visual or audio information) gathered by a recording device under this Part;

(b) permits the falsification, concealment, destruction or disposal of the information;

(c) causes damage to or destroys a recording device;

(d) permits damage to, or the destruction of, a recording device,

for the purpose of making that information, any document derived therefrom or the recording device unavailable as evidence, shall be guilty of an offence.

(2) A person who induces, coerces or requests, without lawful authority or reasonable excuse, a member of Garda personnel to commit an offence under subsection (1) shall be guilty of an offence.

(3) A person guilty of an offence under this section shall be liable—

(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or

(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years or both.

PART 3 ANPR

13. Interpretation (Part 3)

13. In this Part—

“ANPR data” means—

(a) the data and documents generated by the utilisation of ANPR, and

(b) relevant data;

“arrestable offence” has the meaning it has in section 2 of the Criminal Law Act 1997;

“relevant body” means—

(a) daa, public limited company,

(b) Dublin Port Company,

(c) the National Roads Authority, and

(d) a body that is designated by the Minister under section 16;

“relevant data” means the data and documents generated by the operation of ANPR by a relevant body;

“tilisation of ANPR” means—

(a) the operation by a member of Garda personnel of ANPR from a recording device, and

(b) the processing, by a member of Garda personnel, of ANPR data, whether through ANPR or otherwise, and which may include the production of documents,

and cognate expressions shall be construed accordingly.

14. Application of Part 3

14. Parts 5, 6 and 7 shall not affect the operation of this Part.

15. Power of member of Garda personnel to utilise ANPR

15. (1) Subject to sections 18 to 20, a member of Garda personnel acting in the course of his or her duties may, in accordance with this Part, and, where appropriate, in accordance with a data sharing agreement entered into under section 17(2), utilise ANPR for the following purposes:

(a) the prevention, investigation, detection or prosecution of criminal offences;

(b) safeguarding against, and the prevention of, threats to public security, including securing public safety and public order;

(c) the protection of the security of the State.

(2) The utilisation of ANPR referred to in subsection (1)—

(a) shall be necessary and proportionate with regard to the purposes of that utilisation under subsection (1), and

(b) shall be presumed to be so necessary and proportionate if that utilisation is in accordance with an applicable code of practice.

16. Designation of relevant body by Minister

16. The Minister may, after consultation with the Data Protection Commission and with the consent of the body concerned, designate in writing a body (other than the Garda Síochána) as a relevant body for the purposes of this Part if he or she is satisfied that—

(a) the disclosure of relevant data to the Garda Síochána by the body is necessary and proportionate for the purposes of—

(i) the prevention, investigation, detection or prosecution of criminal offences,

(ii) safeguarding against, and the prevention of, threats to public security, including securing public order and public safety, or

(iii) the protection of the security of the State,

and

(b) the body has in place systems to provide adequate safeguarding of relevant data in order to prevent unauthorised access, alteration, disclosure or erasure of that data.

17. Disclosure of relevant data by relevant body

17. (1) A relevant body shall disclose relevant data to the Garda Síochána in accordance with this Part.

(2) A relevant body shall, for the purposes of this Part, enter into a data sharing agreement in writing with the Commissioner of the Garda Síochána, which shall—

(a) specify the relevant data, or categories of relevant data, to be disclosed and the general purposes of that disclosure,

(b) specify the security measures to apply to the transmission, storage and accessing of relevant data, in a manner that does not compromise those security measures,

(c) specify the requirements in relation to the retention of the relevant data to be disclosed for the duration of the agreement and in the event that the agreement is terminated,

(d) specify the method to be employed to destroy or delete the relevant data to be disclosed at the end of the period for which the relevant data is to be retained in accordance with the agreement,

(e) specify the procedure in accordance with which a party may withdraw from the agreement, and

(f) specify any such other matters as considered appropriate by both parties to the agreement.

(3) The relevant body and the Commissioner of the Garda Síochána who are parties to a data sharing agreement under subsection (2) shall review the operation of the agreement on a regular basis, with the initial review being carried out on a date that is not more than 3 years from the date the agreement came into effect and in the case of each subsequent review under this subsection, on a date that is not more than 3 years from the date of the previous review under this subsection.