The Irish Human Rights and Equality Commission (IHREC) has argued before the Supreme Court that police officers applying for a search warrant have a duty to be clear about their intention to search for and to seize electronic devices.

The commission argued that this “duty of candour” ensured that the person deciding whether to issue the warrant could properly assess the merits of the application.

IHREC was making its legal submissions to the court in the case of DPP vs Patrick Quirke, where it is acting as amicus curiae (friend of the court).

Warrant challenged

A search warrant was used by an Garda Síochána (AGS) to seize an electronic-data device belonging to Quirke, who is appealing his conviction for the murder of Bobby Ryan.

The search warrant was challenged at trial and on appeal, on the basis that the item seized was not specified in the search warrant used by AGS.

“Where electronic devices are concerned, a reasonable suspicion relied on by the warrant-seeker requires to be interrogated properly, to ask whether the justification for seizure has been properly made out,” IHREC stated in its submission.

The commission said that it had made its submission to the Supreme Court based on the need to safeguard people’s privacy rights, while also ensuring that search warrants secured by police were robust, and led to effective and fair investigations.

Electronic devices

To assist the court to explore whether such a duty of candour was required of gardaí when seeking warrants, the commission cited international case law from other common-law jurisdictions and from the European Court of Human Rights.

Its submission placed particular emphasis was placed on how this duty might extend to disclosing an intention to seize electronic devices, under section 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997.

The human-rights body argued that an interpretation of this section that did not require such disclosure “would, at a minimum, lead to doubts over the constitutionality of the section”.

Changing technology

Sinéad Gibney (IHREC Chief Commissioner) described search warrants as “a key tool” for policing, but added that the law that governed their use should be “precise and clear” on how warrants were sought and used.

She stated that the law should also keep pace with changing technology and data concerns.

“In other common law countries that we’ve examined, the application process for a search warrant involves a review of what is suspected to be found during a search, and why it’s intended to be seized by investigators.

“Our positon is that the basis for the warrant being sought should be set out and recorded, with proactive transparency required on the part of the person seeking the warrant, so that all involved are clear on what is involved,” said Gibney.