Page Contents
Key Contacts
Related areas
Speed read
In a recent judgment (Poptoshev -v- Director of Public Prosecutions & Ors [2024] IEHC 721), the Irish High Court (the Court) analysed the following legal issues:
The case specifically deals with the compulsory powers of An Garda Síochána when executing search warrants in respect of certain suspected offences under the 2001 Act. However, the Court’s analysis is of broader application, in providing much needed clarity on the operation of the privilege against self-incrimination to the provision of passwords to access digital devices. The judgment also emphasises the need for detailed information to be provided to a judge when applying for any search warrants directed towards securing digital evidence.
Background
These proceedings arose following an investigation by the Garda National Economic Crime Bureau of Mr Poptoshev (the Applicant) for various suspected criminal offences, including revenue offences, company law offences, and offences of making a gain or causing a loss by deception.
In January 2024, the Gardaí obtained a search warrant under section 48(2) of the 2001 Act to search the Applicant’s residence. During the search, the Gardaí seized two smartphones and a laptop. When asked by the Gardaí to provide passwords to enable them to access the devices, the Applicant refused, leading to his arrest and three charges for breach of sections 48 and 49 of the 2001 Act.
The Applicant subsequently brought a judicial review application, seeking a prohibition order in relation to the charges and declaratory relief that the following provisions were invalid and violated his constitutional rights:
More specifically, the Applicant contended that the requirement to provide the passwords to the seized devices, along with the offence created for a failure to comply, interfered in a disproportionate manner with the privilege against self-incrimination.
Decision
The application was ultimately unsuccessful.
The High Court concluded that the items seized during the execution of the search warrant, came within the express parameters of the warrant and the two smartphones constituted ‘computers’ as referred to in section 48 of the 2001 Act. The Court also found that the privilege against self-incrimination was not engaged as the passwords for the three devices existed independent of the will of the Applicant.
Smartphones considered ‘computers’ under section 48 of the 2001 Act
The Applicant contended that the two smartphones which had been seized, were not computers within the meaning of section 48 of the 2001 Act. In examining this aspect of the application, the Court applied the relevant principles of statutory interpretation - in particular that (a) the words used should be given there ordinary and natural meaning; and (b) a court may make allowances for any changes in the law, social conditions and technology when assessing the meaning of words used in Acts[1] - to conclude that the devices were computers for the purposes of the 2001 Act.
In doing so, the Court referred to the recent Supreme Court judgment of The People (DPP) v Quirke in which it was observed that “[t]he term ‘cell phone’ is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone”[2].
Importance of sworn evidence provided by An Garda Síochána in obtaining the Search Warrant
A distinction made by the Court when comparing the present case to that of Quirke, was that the detailed sworn information, upon which the warrant had issued, had specifically referred to the provision of passwords for any computers (including mobile phones) relevant to the investigation.
There was therefore no failure in the duty “to at least mention that computerised searches for a particular purpose were central to the concerns of the proposed search party”[3] . In the present case, the District Court judge, who issued the search warrant, had been made aware that the parameters of the warrant, may include digital devices (such an computers and mobile phones) and that the provision of passwords to such devices may have been required.
Privilege against self-incrimination – existence of the passwords independent of the will of the applicant
Finally, the Court was asked to consider whether the privilege against self-incrimination extended to the passwords to the Applicant’s devices. By reference to a well-established line of English and Irish case law[4], the Court concluded that the privilege against self-incrimination does not extend to material obtained through compulsory powers that exist independent of the suspect's will, such as passwords. In particular, the Court quoted the following excerpt from the English and Welsh Court of Appeal decision in R v S (F)[5] [2009] 1 WLR 1489:
“…the key which provides access to protected data, like the data itself exists separately from each defendant’s ‘will’. Even if it is true that each created his own key, once created the key to data was independent of the defendant’s ‘will’ even when it is retained only in his memory…the key to the computer equipment is no different from the key to a locked drawer. The contents of the drawer exist independently of the suspect: so does the key to it. The contents may or may not be incriminating: the key is neutral.”[6]
The Court held that the passwords in relation to the three electronic devices seized in the present case, constituted ‘keys’ under R v S (F), and existed independent of the will of the Applicant even when retained only in his memory. On that basis, the Court held that the provisions of the 2001 Act in question, did not engage the privilege against self-incrimination.
In so far as the Applicant’s constitutional challenge was concerned, the Court found that the provisions were proportionate and rationally connected to the objective of investigating serious offences. In so finding, the Court applied the proportionality test from Heaney v Ireland[7], concluding that the impact on the Applicant’s constitutional rights were minimal and justified by the need to investigate crime effectively. The Court further noted that the search warrant had been lawfully issued and executed, and the devices were lawfully in the possession of the Gardaí.
Key takeaways
The case clarifies that the privilege against self-incrimination does not extend to passwords for electronic devices which are seized under compulsory powers exercised in the investigation of criminal offences. Such passwords exist independently of the will of the accused, or suspect, once created. While the contents of the devices may be incriminating, the password or ‘key’ is neutral.
This judgment also underscores the necessity for detailed sworn information and judicial oversight in the issuance of search warrants, particularly when electronic devices are involved.
While the analysis of the Court in this case as to what constituted a ‘computer’, was firmly rooted in interpretation of that term in the 2001 Act, it seems unlikely that an argument to the effect that a smartphone is not a computer, would succeed even in other contexts.
For further information in relation to this topic, please contact Katie O'Connor, partner, Joe Kelly, partner, Mairead O’Brien, senior associate, Rachel Kemp, Senior Knowledge Lawyer, or any member of ALG's White Collar Crime team.
Date Published: 1 April 2025
[1] Section 6 of the Interpretation Act 2005
[2] [2023] IESC 5
[3] The People (DPP) v Quirke [2023] IESC 5 per Charleton J at paragraph 85
[4] Cases referred to by the Court included Saunders v UK (Application No. 19187/91) and DPP v Gormley; DPP v White [2014] IESC 17
[5] [2009] 1 WLR 1489
[6] Ibid at para.20
[7] [1994] 3 I.R. 593
