The Department of Justice, Home Affairs and Migration has published a draft Garda Síochána (Powers) Bill, with huge implications for digital searches in Ireland.
This follows on from a Heads of Bill originally put forward in 2021. There were clear problems with that proposal, which I discussed in the Irish Times at the time. Many of these were borne out by subsequent judgments which derailed the Bill for some years and ultimately forced a change of approach. In particular, the Supreme Court decisions in Corcoran and Quirke are clearly reflected in the revised Bill. Between them, these judgments have forced much greater emphasis on judicial authorisation of searches and handling legal privilege/journalist source protection, and Parts 3 and 4 are radically changed as a result.
The Bill appears to offer a much improved set of safeguards in relation to digital searches. However the devil is very much in the detail and the text will require close scrutiny. In particular, it will be interesting to see whether the Bill fully takes account of the CJEU judgment in CG v Bezirkshauptmannschaft Landeck, which seems to impose greater procedural safeguards than domestic law. At first glance the Bill also seems to duck the comity and proportionality issues presented by remote searches - which Maria Murphy and I discuss here (p.25).
A summary of the Bill is here.
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