The Criminal Justice (Surveillance) Act 2009: An Examination of the Compatibility of the New Act with Article 8 of the European Convention of Human Rights
 COLR 26
Prior to the enactment of the Criminal Justice (Surveillance) Act 2009, there was no law in this State regulating the power of the Gardai to conduct covert surveillance. Gardai nevertheless undertook this type of surveillance and used the intelligence gained to assist in the investigation of serious crimes. The enactment of the 2009 Act aims to bring the law on covert surveillance in Ireland into line with that of many European countries. Notwithstanding this fact, there are some parts of the 2009 Act that require detailed analysis in order determine its compatibility with article 8 of the European Convention on Human Rights (ECHR). The European Court of Human Rights (ECtHR) has been to the forefront in ensuring that surveillance law in European Union states meets certain key standards. These standards such as accessibility and foreseeability are addressed in detail in this paper in order to determine whether the new Act will pass these judicial tests. Key issues such as the lack of judicial control in issuing authorisations, the failure to define some of the main terms such as State Security in the Act and the level of judicial oversight envisaged in the new Act are all examined in this paper. These issues are analysed in detail and tested against the case law of the ECtHR in order to see if the new Act complies with some of the keys decisions of the ECtHR on covert surveillance.
By JOHN BARRY