Posted by Gardaí would be granted powers to seize phones and laptops belonging to journalists under controversial planned legislation.
Minister for Justice Jim O’Callaghan quietly published the Garda Síochána (Power) Bill on December 27, two days after Christmas.
The Bill is intended to provide a ‘clear statutory’ framework for the seizure and examination of electronic devices and will reform legislation on search warrants in light of judgments from the Supreme Court.
It will make specific provisions for tailored search warrants authorising the seizure and search of electronic devices and for the assessment of claims of privilege from those who own the devices.
A press release announcing the legislation stated that legal professional privilege would be ‘protected as absolute’, while ‘other forms of privilege’ – which would include journalistic privilege – will be managed through a ‘structured process’, including a determination by the High Court if required.
Mr O’Callaghan said: ‘I am pleased to publish this long-awaited legislation which will modernise and consolidate our laws in this area. It is essential that the law is clear on the powers of search and examination of electronic devices by gardaí investigating crime.’
But the head of the National Union of Journalists (NUJ), Séamus Dooley, has said the move would be a ‘concern’. He told Extra.ie: ‘There is a Supreme Court ruling and case law in the European Courts in relation to the protection of sources, so that would have to be taken into account. We would be concerned that would run the risk of not protecting journalists’ sources.
‘Journalists aren’t entitled to absolute privilege, but we would be looking for detailed clarification as to what the Bill will actually do in practice. We would be concerned at anything which would threaten sources, or also would serve as a chilling factor for sources, in terms of people coming forward.’
In 2023, the Supreme Court dismissed an appeal by the Garda Commissioner against a refusal to allow gardaí to examine a mobile phone seized from a journalist’s home as part of an investigation of an alleged violent incident at a repossessed property in Roscommon.
It upheld the Court of Appeal’s decision that a warrant obtained by gardaí to search journalist Emmet Corcoran’s home in 2019, and seize his phone, was invalid and should be quashed.
The legislation will also include provisions on Garda powers to stop and search. This will include requirements for gardaí to make a formal record of all searches and powers for officers to stop and search a person or vehicle where they reasonably suspect possession of a relevant article.
Social Democrats TD and party spokesman on justice, Gary Gannon, said: ‘If you are going to strengthen powers around search, seizure and detention, you must also strengthen safeguards, independent oversight and transparency.’
A spokesman for the Department of Justice said the Bill would ensure that privileged material is handled through a ‘judicially supervised process’.
He said: ‘Legal professional privilege is protected as absolute, while other forms of privilege, referred to as section 2(2)(b) privilege and including journalistic privilege, are recognised as qualified forms of privilege.’
He added that relevant sections in the Bill would provide a framework for determining whether material is subject to privilege and for safeguarding such material in a manner that protects constitutional rights.
He said: ‘The Bill also provides for an exceptionally defined and exceptional power, subject to prior judicial authorisation, where it is deemed necessary for the purpose of “protecting life, personal safety or critical infrastructure”.’
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