GSOC judge must be given full powers

GSOC-gate judge must be granted the legal powers to do the job, writes Mark Kelly

SINCE the GSOC bugging allegations first emerged, 10 days of claims and counterclaims have impaired the credibility of our police accountability structures. The damage is profound but need not be irreparable if decisive action is taken by the Government now.

The decision to appoint a retired High Court judge to review matters is a welcome first step towards restoring public trust, but there is no guarantee that the Government will grant him the legal powers necessary to do the job.

The Commissions of Investigation Act 2004 provides a tailor-made legal framework for speedy and cost-effective investigations. If the investigating judge is appointed under the 2004 Act, he will have statutory powers to compel witnesses, request and preserve documentation, conduct inspections, and report findings of fact. If the inquiry is to have real teeth, some or all of these powers may well be required.

The alternative suggested by the Government — a “review of papers” — is unlikely to be remotely sufficient to establish the truth. Even if one accepts that civil servants and members of An Garda Síochána will enthusiastically volunteer to speak, the judge must be granted the authority to require people to appear before him. Any “rogue elements” that may have been involved are unlikely to be drafting their voluntary statements for the judge’s consideration.

There should also be a physical dimension to this inquiry. The Garda Commissioner has said that “given the tight internal controls governing the use of the surveillance equipment used by An Garda Síochána” he is “completely satisfied that there was no unauthorised access to this equipment.”

This is something that the judge may wish to verify by visiting, without restriction, areas on Garda Síochána premises where surveillance equipment is kept and examining the safeguards that apply.

The judge’s mandate should extend to reviewing the use of authorised/unauthorised surveillance by two other agencies, the Intelligence Branch (G2) of the Defence Forces and the Revenue Commissioners, both of which have snooping powers under legislation from 1993 and 2009. He may well need some or all of the powers of entry and inspection set out in section 28 of the 2004 Act properly to explore this relatively uncharted territory.

There is not the slightest suggestion that a retired High Court judge will take on this task in anything less than an entirely diligent and independent fashion; however, without the full legal authority of the 2004 Act his investigation could easily be hamstrung.

The technological aspects of the inquiry will be challenging and the judge will certainly require the expert assistance of a technologist with specialist knowledge of information security. If a commission of inquiry is appointed under the 2004 Act, the technologist could be appointed as an “authorised person” with legal authority to recover all available technical threat advice and the contemporaneous log entries of successive surveillance sweeps.

A thorough judicial inquiry should also put an end to speculation regarding authorised interception of the telephone calls of anyone else associated with the GSOC bugging story. Under the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993, it is the Minister for Justice who has the power to authorise such interceptions, based on requests by the Garda Commissioner. Intercepts authorised under the 1993 Act are already subject to a form of “light touch” judicial review after the fact, but far more profound judicial scrutiny may be required.

One of the great advantages of judge-led investigations is that they can formulate recommendations of a systemic nature that transcend the specific facts under investigation. Based on his findings, the judge may decide to reflect on shortcomings in the oversight of intelligence activities in this jurisdiction.

Unlike in the United Kingdom, where reports of the Interception of Communications Commissioner and the Office of Surveillance Commissioners are presented to parliament, there is no parliamentary oversight of intelligence activities in Ireland. Intelligence functions vested in the Garda Commissioner cannot be reviewed by the GSOC and it is unclear if there is any effective oversight of the work of the Defence Forces Intelligence Branch.

The Morris Tribunal not only highlighted appalling historic policing abuses in Donegal, it laid the groundwork for a new system of policing accountability which, for all its acknowledged shortcomings, represents a significant advance on previous practice.

A properly constituted judicial inquiry could shed light on whether the GSOC has been bugged and prepare the way for better scrutiny of the work of our intelligence services.

Mark Kelly is the director of the Irish Council for Civil Liberties (ICCL).

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