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New legislation to allow gardaí demand passwords for devices when carrying out search warrant

The overhaul of how gardaí operate includes a new power for gardaí to request passwords or encryption keys.

File photo of gardaí at a checkpoint.
File photo of gardaí at a checkpoint.
Image: Shutterstock

THE MINISTER FOR  Justice has today outlined plans for a sweeping overhaul of how gardaí operate, including a new power for gardaí to request passwords or encryption keys for electronic devices.

The new legislation aims to make changes based on the recommendations of the Commission on the Future of Policing in Ireland.

These include:

  • A single power of arrest will be introduced, subject to conditions to ensure the arrest is necessary in the particular circumstances (such as to prevent harm to establish identity), in line with other common law jurisdictions and is intended to streamline laws from the past two hundred years
  • The garda caution will be put 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
  • A statutory right for the accused to have their lawyer present at interview will be introduced (already common practice following a 2014 Supreme Court ruling)
  • A power for An Garda Síochána and other bodies to require a person to provide passwords for access to electronic devices when carrying out a search warrant
  • A new requirement to make a written record of a stop and search
  • Statutory codes of practice
  • Special measures will be taken for suspects who are children and suspects who may have impaired capacity (whether because of an intellectual disability, mental illness, physical disability or intoxication)

Other measures include the ability of gardaí to randomly stop and search a car if a serious or terrorist offence is about to occur or has just taken place being expanded to include abduction and trafficking.

The Bill also intends to facilitate longer detention periods for human trafficking, all murder offences, and if multiple offences are being investigated together, while also providing those detained with the right to rest and right to access medical attention.

Minister Heather Humphreys highlighted the current complexity of the law governing how gardaí operate.

“Bringing it together will make the use of police powers by gardaí clear, transparent and accessible,” she said in a statement. “The aim is to create a system that is both clear and straightforward for gardaí to use and easy for people to understand what powers gardaí can use and what their rights are in those circumstances.”

At the same time, where we are proposing to extend additional powers to gardaí, we are also strengthening safeguards.

The Minister added that the legislation will help maintain “a crucial balance” in Ireland’s criminal justice system.

The legislation can be read in full here.

The Irish Council for Civil Liberties told The Journal: ”There is much to be welcomed in the new Bill, including an obligation on gardaí to record every instance of stop-and-search and to provide an explanation to people when they are carrying them out. However, ICCL is concerned that superintendents (not courts) may be empowered to warrant searches. There should also be more detail around safeguards on the use of force.  ICCL will be engaging with the Department of Justice on these issues to ensure the new Bill is compliant with human rights principles”.

Liam Herrick of the ICCL told Today FM’s Last Word that it would depend whether people would have to hand over their phone passwords to Gardaí who had confiscated their phones, and that the proposed legislation is looking to clarify Garda powers already in place.

“It depends what the suspicion is, what the offence might be,” he said, adding that the laws aim to clarify and consolidate the law for people and authorities.

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“But it does seem to broaden the circumstances in which passwords could be demanded.”

Meanwhile, Frank Thornton, president of the Garda Representative Association (GRA), said that the requirement to transcribe interviews because of the current wording used in the caution “has not been conducive with ensuring that optimum use was made of the time available to Gardaí to interview detained persons”.

He said that this also “impacts on the natural flow of conversation and questioning in the interview process”. Thornton said that the GRA has been calling for this change “for many years, particularly since the introduction of audio and video recording of interviews more than two decades ago”.

He said that this development “will see that the association flagged as a serious issue and adopted as policy based on a motion passed at our annual AGM finally implemented”.

About the author:

Nicky Ryan

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