A Look at the New Garda Powers

Last week, reports emerged of a new policing powers bill being published by the Minister of Justice which showed that offenders could be imprisoned for a maximum sentence of five years and fined up to €30,000 for refusing to provide gardaí with their phone or computer passwords when demanded.

As well as taking a copy of everything on the device itself, gardaí could also use the device to access any other service you use, such as your webmail, cloud storage, or online banking and then take a copy of that data as well as supplementary information. The move comes as more crime has migrated online where it is carried out on phones, computers and other devices protected by personal login details and private keys.

The general scheme of the Garda Síochána (Powers) Bill was published on Monday and will see sweeping changes made to the system of search warrants and detention currently used by gardaí. In addition, a garda caution will be included on a statutory basis, the requirement for a written contemporaneous note of a garda interview will be removed in cases where it can be recorded by other means, and a statutory right for the accused to have their lawyer present at interview will be introduced.

Legal experts have expressed worry that the bill would give the gardaí too much power. “It is very concerning, there are huge powers being created here,” remarked Dr Vicky Conway, associate professor of law at Dublin City University.

Justice Minister Heather Humphreys said in the bill’s launch that the law in the area of search and detention is “currently very complex,” and that “Bringing it together will make the use of police powers by gardaí clear, transparent and accessible”.

The Irish Council of Civil Liberties (ICCL) will be making submissions to the Department of Justice, but said it is “concerned” about a number of facets of the prospective law. A spokesperson said the ICCL took issue with the bill’s provisions for seizing privileged information, while the fact that search warrants could be issued by Garda superintendents, as opposed to judges, in “exceptional circumstances” is worrying, given that such circumstances are not clearly defined.

Associate professor of law at UCD TJ McIntyre described the bill as “a missed opportunity”, stating that “It continues the practice, which the Supreme Court has found unconstitutional, of self-service search warrants,” and that “In every case, that application should go through a judge, there is no reason why there can’t be a scheme to do it urgently.”

In an opinion piece for The Irish Times, McIntyre reiterates the ethical focus of such measures, stating that “This proposal is significantly out of line with international standards. Very few countries have laws requiring password disclosure and in several jurisdictions, notably Canada and several US states, courts have held that mandatory disclosure of passwords is incompatible with the right to silence and the privilege against self-incrimination.”

At the end of the day, the question that falls upon us is how much privacy are we willing to forsake to enhance the efficiency of policing, and how do we safeguard ourselves from unethical breaches of privacy when such acts become common practice? This will be of central focus as the debate on the garda powers bill develops.