Law Society Director General Mark Garrett told the Oireachtas Joint Committee on Justice hearing yesterday (13 February) that several possible weaknesses had been identified in the Garda Síochána (Recording Devices) (Amendment) Bill 2023.

Joined at the hearing by Aimée McCumiskey of the Criminal Law Committee, who is also a partner at MacGuill & Company Solicitors, the director general said that the Law Society was sharing its views on the bill in a spirit of constructive and positive civic engagement, given the strong feelings the proposed legislation had aroused.

Frontline

The director general said that solicitors working on the frontline of the justice system knew that law enforcement needed the tools and technology to deter and detect crime.

Solicitors were also very much attuned to the need to respect, protect, and enforce the rights and civil liberties of individuals, he added.

He outlined the bill’s possible weaknesses, as set out in a Law Society submission made to the committee last month, which included concerns about:

• Privacy rights,
• Data protection,
• Right to non-discrimination, and
• Right to a fair trial.
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For these reasons, the Law Society believes that further tests of necessity and proportionality are required for the introduction of biometric identification in the Irish context.

Stronger safeguards and oversight relating to the use of biometric ID may also be warranted, as well as external monitoring of its use.

Specific issues

The director general set out concerns that, although the General Scheme of the bill excluded gathering data on physical features, such as height or build, it should be made more explicit that the legislation would apply only to facial images.

He added that, while the bill permitted the gardaí to process and store images legally provided by other national or international organisations, it should name these bodies specifically.

The bill should also place an onus on gardaí to use only images legally obtained by outside organisations, to avoid tainting the process and, thereby, failing in attempts to secure convictions, the director general said.

Clarity required

More clarity was also needed on which criteria senior gardai would use to assess whether the use of biometric identification was both necessary and proportionate, Mark Garrett said.

While it was assumed that such technology would be required only for complex investigations, and where there was a threat to public security, such objectives could be set out in clearer detail, he added. This would enable the test as to what is “necessary and proportionate” to be better assessed and reviewed.

The Law Society also recommends that judicial oversight might be more appropriate, such as an application to a District Court judge.

Complex legislation

The Law Society was mindful that this was a complex piece of legislation that warranted close and considered scrutiny by legislators, the director general concluded.