Criminal Justice (Surveillance) Act 2009

11.

Complaints procedure.

11.— (1) A person who believes that he or she might be the subject of an authorisation or an approval under section 7 or 8 may apply to the Referee for an investigation into the matter.

(2) A superior officer who makes a report under section 7 (11) or 8 (9), or F13 [ a person who ] receives a report under section 7 (12) or 8 (10) , may apply to the Referee for an investigation into a matter if he or she believes that such an investigation would be in the interests of justice.

(3) If an application is made under this section (other than one that the Referee considers to be frivolous or vexatious), the Referee shall investigate—

( a) whether an authorisation was issued or an approval was granted as alleged in the application, and

( b) if so, whether there has been a relevant contravention.

(4) If, after investigating the matter, the Referee concludes that there has been a relevant contravention, the Referee shall—

( a) notify the applicant, and any other person whose interests are materially affected by the relevant contravention, in writing of that conclusion, and

( b) make a report of his or her findings to the Taoiseach.

(5) In the circumstances referred to in subsection (4) , the Referee may also, if he or she is of opinion that the relevant contravention was material and that to do so would be justified in the circumstances, by order do one or more of the following things:

( a) direct—

(i) the quashing of the authorisation or the reversal of the approval, and

(ii) the destruction of the written record of approval concerned, the report under section 7 (11) or 8 (9) concerned, and any information or documents obtained as a result of the authorisation or approval;

( b) make a recommendation for the payment of such sum, not exceeding €5,000, specified in the order by way of compensation to the person who was the subject of the authorisation or approval;

( c) report the matter and any recommendation under paragraph (b) to—

(i) the F14 [ the Ombudsman Commission ], in the case of a contravention by the Garda Síochána,

F13 [ (ia) the Minister, in the case of a contravention by the Ombudsman Commission, ]

(ii) the Minister for Defence, in the case of a contravention by the Defence Forces,

(iii) the Minister for Finance, in the case of a contravention by the Revenue Commissioners;

( d) report the matter and any recommendation under paragraph (b) to the judge designated under section 12 .

(6) If the Referee is of opinion that, in all the circumstances, it would not be in the public interest to—

( a) notify, under subsection (4) (a) , the applicant or the other person, if any, of a conclusion that there has been a relevant contravention,

( b) direct the quashing, reversal or destruction under subsection (5) (a) , or

( c) make a recommendation for the payment of a sum by way of compensation under subsection (5) (b) ,

he or she shall decline to do so.

(7) If, after investigating the matter, the Referee concludes that there has not been a relevant contravention, the Referee shall give notice in writing to the applicant stating only that there has been no such contravention.

(8) A decision of the Referee under this section is final.

(9) A relevant contravention that is not material does not of itself constitute a cause of action at the suit of a person who was the subject of the authorisation or approval concerned.

(10) A person in charge of a Garda Síochána station within the meaning of section 99(10) of the Garda Síochána Act 2005, a place under the control of F15 [ the Ombudsman Commission, ] the Defence Forces or the Revenue Commissioners or any other place in which documents relevant to an investigation under this section are kept shall ensure that the Referee has access to those places, and to the authorisations, written records of approval, reports and other relevant documents that the Referee may request.

(11) The Referee—

( a) may, on his or her own initiative, and

( b) shall, where a case has been referred to him or her by the designated judge under section 12 (8) ,

investigate whether there has been a relevant contravention and this section (other than subsection (7) ) shall apply to such an investigation as if the references to “the applicant” in subsections (4) and (6) were to “the person who was the subject of the authorisation or approval”.

(12) In this section—

“Referee” means the holder of the office of Complaints Referee under the Act of 1993;

“relevant contravention” means a contravention of a provision of sections 4 to 8 .

Annotations:

Amendments:

F13

Inserted (27.04.2015) by Garda Síochána (Amendment) Act 2015 (3/2015), s. 13(h)(ii)(II), (iii), S.I. No. 150 of 2015.

F14

Substituted (27.04.2015) by Garda Síochána (Amendment) Act 2015 (3/2015), s. 13(g)(ii)(I), S.I. No. 150 of 2015.

F15

Inserted (27.04.2015) by Garda Síochána (Amendment) Act 2015 (3/2015), s. 13(h)(i), (ii)(II), (iii), S.I. No. 150 of 2015.