Commission Makes Recommendations to Minister and Oireachtas on Radical Changes Proposed to Garda Recording Powers
18 April 2022 – A new law on Garda recording should explicitly set out whether facial recognition and other emerging technology is covered under its provisions. If it is included then the human rights and equality implications of these technologies need to be subject to independent and effective scrutiny, the Irish Human Rights and Equality Commission (‘The Commission’) has warned the Minister for Justice and Oireachtas Members in a recommendations paper published today.
The Commission has set out multiple concerns with a new draft law (the General Scheme of the Garda Síochána (Digital Recording) Bill) that proposes radical change in the area of the recording of personal information by members of An Garda Síochána, including through the use of body-worn cameras and other recording devices by An Garda Síochána and the extension of the circumstances in which CCTV and Automatic Number Plate Recognition (‘ANPR’) devices may be used by police.
The Commission has focused its recommendations on four key areas.
- Intrusion on rights for law enforcement purposes;
- Equality implications in the use of technology;
- Access and retention of data;
- Adequacy of safeguards and oversight mechanisms.
The Commission is clear that police recording is generally lawful under the Constitution and international human rights law, subject to the requirement that it is based on law, pursues a legitimate aim, is proportionate in that aim and is necessary in a democratic society.
Other recommendations from the Commission include that:
- Consideration be given to requiring a Data Protection Impact Assessment and a Human Rights Impact Assessment to recordings by 3rd Party CCTV and transfers of recorded data to the Gardaí.
- Judicial authorisation should be required for all applications to request access to third party CCTV.
- The law needs sufficient safeguards to address emerging technologies around recording capable wearable devices and cloud-based voices services including for example ‘Alexa’.
- Emerging technologies should be subject to independent and effective oversight by either an existing body, such as the Policing Authority, or a new body.
- There needs to be careful examination in this law of whether the interference with the right to privacy, protection of data, freedom of expression and assembly, and right to a fair trial that is presented by the use of body-worn cameras is proportionate and necessary in the prevention of disorder or crime.
- The need for the collection and reporting of comprehensive dis-aggregated data on the use of Garda powers under this legislation.
- The use of drones for policing purposes should be substantially evidenced before the inclusion of drones under the definition of a ‘recording device’ in this law.
- The legislation should be sufficiently clear and transparent to ensure that it is accessible and that individuals can foresee the circumstances in which the respective powers under the legislation may be used.
- If the intention is to provide for covert recording in this law, it should be explicit in the text that the use of these recording technologies may lead to covert recording.
- Gardaí operating a recording device or body-worn camera should inform an individual in an accessible language or format that they are being filmed and recorded.
- Judicial authorisation must be sought by the Garda Commissioner or a senior Garda member on their behalf for the installation and operation of CCTV.
- The law should be amended to prescribe the criteria for the selection of locations where CCTV is to be installed to safeguard against blanket surveillance of certain communities.
- Particular consideration should be given to the sharing and storage of images of occupants of cars, particularly images of passengers, in the drafting of this General Scheme and associated codes of practice to ensure that the intrusion on rights that the practice presents remains proportionate and necessary.
Speaking today, Chief Commissioner Sinéad Gibney stated:
“There is a tension between protecting people’s individual rights and permitting law enforcement authorities to use and access technology to tackle serious crime. It is the responsibility of the State to balance the different rights involved.
“We’re seeing a rapid development of new technologies in the area of video and audio recording from facial recognition, to drones, to body cameras and even devices which can record conversations in our homes. It is vital that this new law incorporates from the outset the necessary human rights and equality protections for people today, and into the future.”
ENDS/
For further information, please contact:
Sarah Clarkin, IHREC Communications Manager,
01 8592641 / 087 4687760
sarah.clarkin@ihrec.ie
Follow us on twitter @_IHREC
Editor’s Note
The Legislative Observations from the Irish Human Rights and Equality Commission is available at the following link:
The Commission has published these legislative observations in line with its mandate to keep under review the adequacy and effectiveness of law and practice in the State relating to the protection of human rights and equality, and to make recommendations to the Government to strengthen and uphold human rights and equality in the State.
Irish Human Rights and Equality Commission
The Irish Human Rights and Equality Commission is an independent public body, appointed by the President and directly accountable to the Oireachtas. The Commission has a statutory remit set out under the Irish Human Rights and Equality Commission Act (2014) to protect and promote human rights and equality in Ireland, and build a culture of respect for human rights, equality and intercultural understanding in the State.
The Irish Human Rights and Equality Commission is Ireland’s national human rights institution and is recognised as such by the United Nations. The Commission is also Ireland’s national equality body for the purpose of a range of EU anti-discrimination measures.