Instruction Manual SURVEILLANCE On The Criminal Justice (Surveillance) Act 2009

Date of Issue: July 2010

This manual sets out the implications of the Act for Revenue and puts in place controls and procedures in order to ensure that any surveillance activity conducted within Revenue is in compliance with the law

Contents
1. Introduction................................................................................................................3 2. Criteria for use of surveillance...................................................................................3 3. Use of Camera Equipment for Surveillance ..............................................................3 4. Approval Procedures..................................................................................................4 4.1 Use of Surveillance (other than a camera) or tracking device .............................4 4.2 Use of Camera Equipment for Surveillance ........................................................4 5. Procedures to be observed by Nominated Officers....................................................4 5.1 General.................................................................................................................4 5.2 Cases of Urgency .................................................................................................4 5.3 Deployment of Tracking Devices ........................................................................4 6. Oversight....................................................................................................................5 7. Disclosure or Breach of Procedures...........................................................................5 Appendix A....................................................................................................................6 SURVEILLANCE – the law......................................................................................6 Appendix B: ...................................................................................................................9 Use of Camera Equipment for Surveillance ..............................................................9 Appendix C .................................................................................................................. 10 Forms ....................................................................................................................... 10
42H 17H 43H

1. Introduction
These instructions cover the use of surveillance by means of or with the assistance of surveillance or tracking devices in Revenue. The law governing the use of such devices is contained in the Criminal Justice (Surveillance) Act 2009 – See Appendix A. The meaning of “surveillance” governed by the Act is — (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; However such surveillance carried out without the use of surveillance or tracking devices continues to be unregulated as heretofore.

2. Criteria for use of surveillance
There is strict criteria laid down by law (see Appendix A) to justify the use of a surveillance device and its use is normally subject to the authorisation of a Judge of the District Court. In cases of urgency meeting certain criteria, the use of a device may be approved by a nominated officer but only for a period not exceeding 72 hours after which an application must be made to the Court if it the surveillance is to be continued.

3. Use of Camera Equipment for Surveillance
Use of a camera (including a mobile phone camera) 1 to take photographs of any person who, or any thing that, is in a place to which the public does not have access constitutes surveillance under the Act. Examples of where the use of a camera does/does not constitute surveillance are given in Appendix B Officers should note that there may be less intrusive alternatives to the use of camera surveillance and should be prepared to explore other options such as OSI maps, GOOGLE Earth, or mapping/sketching of a premises, as each case arises.

1

The law covers any device that incorporates a camera e.g. camera phones, camcorders, video recording technology, etc.

4. Approval Procedures
4.1 Use of Surveillance (other than a camera) or tracking device The following material is either exempt from or not required to be published under the Freedom of Information Act 1997. […] 4.2 Use of Camera Equipment for Surveillance The following material is either exempt from or not required to be published under the Freedom of Information Act 1997. […]

5. Procedures to be observed by Nominated Officers
5.1 General The nominated officer must be satisfied that the criteria set out in law for the use of the surveillance are fully met before seeking judicial authorisation. 5.2 Cases of Urgency In cases of urgency that meet the criteria, the nominated officer may approve the surveillance for a period not exceeding 72 hours without seeking judicial authorisation. However, the approval granted should be recorded on the prescribed form (see Appendix C) not later than 8 hours after approval. Application to the court is required if such surveillance is to be continued beyond the 72 hour period. The following material is either exempt from or not required to be published under the Freedom of Information Act 1997. […] 5.3 Deployment of Tracking Devices
14B

A nominated officer may also approve the deployment of a tracking device (without seeking judicial authorisation) if satisfied that the criteria set out in law for the use of the surveillance is satisfied. The approval granted should be issued on the prescribed form (see Appendix. C).
2H

The following material is either exempt from or not required to be published under the Freedom of Information Act 1997. […]

6. Oversight
The Act provides for the retention of relevant documents (authorisations, approvals and reports) for a period of three years after such surveillance or tracking was concluded or until they are no longer required for a prosecution or an appeal, whichever is the later. These documents must be stored securely and must not be disclosed. The Act provides for a complaints procedure, which is overseen by a nominated Judge of the Circuit Court who will act as a referee. A designated High Court Judge has been appointed to oversee the operation of the Act. Powers to access relevant premises and records are provided to the Judges, who are empowered to report to the Taoiseach on respect of breaches of the Act and in respect of its general operation by Revenue. The following material is either exempt from or not required to be published under the Freedom of Information Act 1997. […]

7. Disclosure or Breach of Procedures
It is a criminal offence for an officer to make an unauthorised disclosure of any information in relation to the operation of the Act or to conduct surveillance other than in accordance with the Act. Officers are also advised that is regarded as a serious disciplinary matter to conduct surveillance in breach of these procedures.

Appendix A
SURVEILLANCE – the law
The legislation covering the use of surveillance for law enforcement or State security purposes is contained in the Criminal Justice (Surveillance) Act 2009. It applies to the Garda Siochana, the Defence Forces and the Revenue Commissioners. It became law on 12 July 2009. The law regulates surveillance conducted by means of or with the assistance of surveillance devices. The relevant extract from the Act is reproduced hereunder: In the Act:
“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 Sıochana Act 2005, or (c) a camera, to the extent to which it is used to take photographs 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 Surveillance carried out without the use of surveillance or tracking devices continues to be unregulated as heretofore. Surveillance devices may only be deployed as part of an operation or investigation being conducted by the Revenue Commissioners concerning a revenue offence, where the surveillance 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 for the purpose of obtaining evidence for proceedings in relation to the offence, or for the prevention of a revenue offence. The law specifies that surveillance or tracking may only be used in the case of an “arrestable offence”. For Revenue it is defined as an offence under any of the following enactments (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; which carries a sentence on conviction of 5 years imprisonment or more. A surveillance device may only be deployed where it is the least intrusive means available having regard to its objectives and other relevant considerations, where its use is proportionate to its objectives having regard to all the circumstances including its likely impact on the rights of any person, and for of a duration that is reasonably required to achieve its objectives and subject to the authorisation of a Judge of the District Court under Section 5 of the Act. Applications for authorisations must be grounded by an application on oath before the Judge by an officer of at least Principal level (defined as a superior officer) specifying why the surveillance is necessary. The application must be made ex parte and must not be heard in public and may be made before any District Court Judge. If satisfied, the Judge will issue an authorisation in writing specifying the particulars of the surveillance device that is authorised to be used, the person who, or the place or thing that, is to be the subject of the surveillance, the name of the superior officer to whom it is issued, the conditions (if any) subject to which the authorisation is issued, and the date of expiry of the authorisation. The authorisation may specify the name of the officer designated by the superior officer to conduct the surveillance, accompanied by any other person whom he or she considers necessary, and authorise him/her/them to enter a private premises for the purpose of placing or removing a surveillance device. Such an authorisation is valid for such period as is specified by the Judge but may not exceed three months. A superior officer may seek to have an authorisation varied or renewed by application on oath before the Judge. In cases of urgency meeting certain criteria set out in Section 7 of the Act a superior officer may approve the deployment of a surveillance device but only for a period not exceeding 72 hours after which an application must be made to the Court if it the surveillance is to be continued. A superior officer must make a written record of any such approval within 8 hours and furnish a report to an Assistant Secretary within 7 days of the completion of the surveillance so approved. A superior officer may approve the deployment of a tracking device for the purpose of monitoring the movements or persons, vehicles or things. On receipt of such an application the superior officer must satisfy himself/herself that the requirements set out above in respect of the use of surveillance are fulfilled but that the use of a tracking device would be sufficient for obtaining the information or evidence required and that the information or evidence sought could reasonably be obtained by the use of a tracking device for a specified period that is as short as is practicable to allow the information or evidence to be obtained, but in any case for not longer than 4 months. He/she must also be satisfied there are reasonable grounds for believing the circumstances of the case are such that an authorisation would be issued under Section 5 of the Act. An approval permits the applicant officer accompanied by any other person necessary to place or remove the tracking device without the consent of the person who owns the vehicle or thing. A superior officer must make a written record or any approval granted as soon as practicable but not later than 8 hours after the use of the tracking device has been approved on the prescribed form. The Act also provides for the variation of the duration of the tracking (subject to the maximum time permitted) and any conditions attaching to it by the superior officer. Within 7 days of the completion of the tracking the superior officer must make a written report to an Assistant Secretary providing details of the grounding of the case and including a copy of the written approval granted..

The form of information to be sworn, the form of authorisation to be presented to the Judge, forms dealing with the continuation, varying or renewing surveillance, the form of approval to be used in cases of urgency and the form of approval for deployment of a tracking device are reproduced as an Appendix to this instruction. Those forms that need to be produced in court have been approved by the District Court Rules Committee. The law also provides for the retention of relevant documents (authorisations, approvals and reports) for a period of three years after such surveillance or tracking was concluded or until they are no longer required for a prosecution or an appeal, whichever is the later. These documents must be stored securely and must not be disclosed. The Act provides for a complaints procedure, which is overseen by a nominated Judge of the Circuit Court who will act as a referee. A designated High Court Judge has been appointed to oversee the operation of the Act. Powers to access relevant premises and records are provided to the Judges, who are empowered to report to the Taoiseach in respect of breaches of the Act and in respect of its general operation by Revenue. The law creates a criminal offence in relation to the unauthorised disclosure of any information in relation to the operation of the Act. Evidence obtained as a result of surveillance/tracking under authorisation or approval may be tendered in evidence in a criminal prosecution. Criminal Justice (Surveillance) Act 2009.

Appendix B:
Use of Camera Equipment for Surveillance
Use of a camera to take photographs of any person who, or any thing that, is in a place to which the public does not have access constitutes surveillance under the Act. Examples of where the use of a camera does/does not constitute surveillance are given below. Subject of photo Someone’s residence taken from a public road: - Residence is situated on public road - Residence is not on public road (in own grounds or has garden in front) Vehicle parked in a private residence Vehicle at the point of entering or leaving a private residence which fronts on to the public road People in or visiting a private residence: - Photograph of person on the public road - Photograph of person in private garden/driveway/inside house Someone coming through the airport Car coming off a ferry People entering or leaving a business premises to which public have access People entering or leaving a business premises to which the public do not have access - Photograph of person on the public road - Photograph of person in private yard/driveway/inside premises Back office of a retail premises, etc. Have the Public got access? Yes No Does the Act apply? No Yes

No Yes

Yes No

Yes No Yes Yes Yes

No Yes No No No

Yes No

No Yes

No

Yes

In respect of other situations where there may be a doubt as regards whether or not the provisions of the Act apply, the nominated officers in IPD will be in a position to advise or obtain legal advice, if necessary.

Appendix C
Forms
The forms for use in connection with the authorisation of surveillance by a Judge of the District Court can be viewed and/or completed on the Revenue website. The forms for use in connection with the approval of tracking or the approval of surveillance (in cases of urgency) by a superior officer of the Revenue Commissioners can be accessed electronically.