The Honourable Mr.

Justice Joseph Finnegan President of the High Court The High Court Dublin 7

IV

December, 2001

SECRET
Dear President, I am writing to you in connection with the Interception of Postal Packets and Telecommunications Messages (Regulations) Act, 1993. I am enclosing a copy of the Act, for ease of reference. Under the provisions of section 8 of the Act, the President of the High Court, after consultation with the Minister for Justice, Equality and Law Reform is required to invite a serving Judge of the High Court (referred to under the Act as the Designated Judge) to keep the operation of the Act under review and ascertain whether its provisions are being complied with. On acceptance of the invitation, the Government designates the Judge for that purpose. Following his acceptance of an invitation from the then President of the High Court, to carry out the relevant duties under the Act, Mr. Justice Costello was designated by the Government in September 1993 for the purposes of the Act. He continued to fulfil this role when he was subsequently appointed as President of the High Court. His successor as President, Mr Justice Morris, also filled the role as Designated Judge. The recent retirement of Mr Justice Morris requires that a serving Judge of the High Court be invited to act as the Designated Judge in his place. Provisions on the review of the operation of the Act by the Designated Judge are contained in section 8 of the Act. These.include a duty to report to the Taoiseach, on the general operation of the Act, at least once every 12 months. I also enclose copies of Mr Justice Morris' reports for your information. Other aspects of the duties of the Designated Judge arise under section 9 of the Act, which is concerned with the separate complaints procedure. Judge Michael O'Shea of the Circuit Court has recently been appointed as the Complaints Referee under that section following the retirement of Judge Kieran O'Connor. The Designated Judge may also be consulted under section 2(7) of the Act.

In approaching the matter of designating a Judge of the High Court under the Act, I think it would be helpful to let you know that at the time of drafting of the 1993 Act, the then Chief Justice, Mr. Justice Finlay was consulted regarding the provisions conceming the Designated Judge. He considered that it would be inevitable that surveillance of persons suspected of criminal involvement would be part of the matters to come to the notice of the Designated Judge and advised against the Designated Judge participating in any criminal trials or in any appeal from a criminal trial. For this reason, the Chief Justice proposed that the Designated Judge should be drawn from the High Court rather than the Supreme Court. Further, it was the view of the Chief Justice, and the President of the High Court at the time, that a High Court Judge taking on these responsibilities would have to be freed from all criminal work from that time until the end of his assignment as a Judge, irrespective of the continuation of the designation or not. Having regard to these considerations and the nature of the duties involved, I envisage that the initial designation would be for a period of five years or until the Judge retires, whichever is sooner. But I would, of course, be ready to take account of any views you might have in relation to this aspect. On notification that a Judge has accepted the invitation to act as Designated Judge, appropriate arrangements will be made by my E! artm th~ Pesigna~on by the . . ent of your nominee. One of m . an ... my Department, is the Nominated 6fftcer for the purposes of e Ion 6 ofthe Act. Could I suggest that you contact him in the fi:s .. , if you have any queries relating to this matter? His telephone number ou might also find it useful to speak with Mr. Justice Frederick Morris reg .his experience as the Designated Judge for over three years. I'm afraid there is no additional remuneration involved. Yours sincerely,

John O'Donoghue, TD, MINISTER FOR JUSTICE EQUALITY AND LAW REFORM