Member Article

A Ministerial Order (S.I. 541/2014) has been passed commencing Part 3 of the Criminal Justice (Mutual Assistance) Act 2008 (the Act), from last Monday 1 December, 2014.  The Act provides for various forms of mutual legal assistance to foreign law enforcement authorities.

Part 3 concerns requests for mutual assistance between Ireland and other Member States of the EU for interception of telecommunications messages for the purposes of criminal investigations. It gives effect to Article 17 to 22 of the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, 2000. To date, the scope for lawfully intercepting communications in Ireland has been restricted where the request originates from a law enforcement authority in another Member State.  

The Postal and Telecommunications Services Act 1983, and the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993 provide only for the interception of communications on a domestic basis.  Also the Communications (Retention of Data) Act 2011 applies only to requests received from Irish law enforcement authorities (i.e. the Garda Síochána, Revenue Commissioners and Defence Forces). 

As the interception of communications involves the processing of personal data, the Data Protection Acts 1988 and 2003 (the DPAs) are relevant.  Whilst compliance with the DPAs is not required where the processing is necessary for the prevention or investigation of an offence and compliance with the DPAs would be likely to prejudice those matters (section 8(b)); or where the processing is required by law or pursuant to a court order (section 8(e)), these exemptions are not viewed by the Data Protection Commissioner as extending to the prevention or investigation of non-Irish offences or pursuant to a foreign legal obligation or court order (unless further steps are taken to ensure that the order has force of law in Ireland).

Accordingly, the commencement of Part 3 of the Act will now enable EU law enforcement authorities to directly request the interception of certain telecommunications in Ireland, without contravening individuals' data protection and privacy rights.  Member States have, however, been able to avail of the general evidence gathering provisions in Part 5 of the Act, which was commenced back in 2008, along with the rest of the Act (bar part 3) by S.I. 338/2008.  Part 3 also enables the Minister for Justice, Equality and Law Reform to request tapping in other countries for an Irish-based criminal investigation.

It is worth noting that the mutual assistance regime has a number of limitations, in particular the Minister can only authorise a request for an interception where same would be permitted under the 1983 and 1993 Acts.  This means that only telecommunications messages being transmitted by licensed telecoms operators may be intercepted under the regime, thus excluding social media providers and other internet companies from being subject to a Ministerial Direction authorising interception.

It is an offence for a company to refuse, without reasonable excuse, to comply with a Ministerial Direction authorising interception.  A company may be liable to a fine up to €5,000 on summary conviction, or a further fine on conviction on indictment.  Proceedings for such an offence will be heard in private.

 

Footnotes: For more information please contact Davinia Brennan at [email protected] or a member of our IP & Technology Team. Date published: 5 December 2014