New Garda powers to allow access to mobile phones, changes to ‘stop and search’

A person who refuses to surrender a password for a mobile phone or other device to gardaí will be committing a crime and could face up to five years in prison and a fine of up to €30,000 under new legislation being unveiled on Monday.

The move comes as more crime has migrated online where it is carried out on phones, computers and other devices protected by personal logins.

Garda sources said the pandemic had accelerated the commission of large numbers of crimes, including minor offences such as low-value drugs transactions, on messaging apps as in-person contact became restricted. They believed that trend would remain long after the pandemic and that the new power was vital to strengthen Garda searches to include access to mobile phones and other devices.

The general scheme of the Garda Síochána (Powers) Bill, to be published by Minister for Justice Heather Humphreys on Monday, will also for the first time oblige gardaí to make a written record in every case when they stop and search a person.

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The Irish Times understands this measure, when combined with a code of practice to be drawn up, will result in stop and search trends becoming clear over time. This would include the gender and ethnicity of those being stopped. It will also become clear what parts of the country, and in cities in which post codes, stop and search actions happen most frequently and what age groups were stopped most often.

Under the provisions of the Bill, gardaí will also no longer be obliged to make a written record of interviews with suspects and witnesses once other recording options are available. Garda cautions, which mean a person avoids conviction for a crime, are being placed on a statutory footing, as is the right for suspects to have a lawyer present during Garda interviews.

Measures are also being put in place to assist people who are being detained by gardaí but have children to care for or are impaired in some way, including by disability or by being intoxicated. The Minister said the Bill would give gardaí some new powers but it would also clarify and codify existing powers provided for across hundreds of pieces of legislation. The Bill, she noted, was a key recommendation of the Commission on the Future of Policing in Ireland, which published a roadmap for Garda reform in September, 2018.

Complex law

“The law in this area is currently very complex, spread across the common law, hundreds of pieces of legislation, constitutional and EU law,” Ms Humphreys said of the new Bill codifying and clarifying Garda powers and responsibilities.

“Bringing it together will make the use of police powers by gardaí clear, transparent and accessible. 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.”

Security sources said the person refusing to surrender their password would have to be a suspect in a crime and trying to obstruct the investigation of that core offence before they would be convicted over the password refusal.

The new Bill will create the specific new criminal offence of password refusal and the most serious cases would be tried in indictment, before a judge the jury, where the most severe sanctions would apply. However, even in less serious cases where passwords were not supplied, a person could still be summarily prosecuted. On conviction that would carry a sanction of up to 12 months imprisonment and a fine of up to €5,000.

Under the new Bill, gardaí will also have the power to arrest and detain a person until the name and other identity details they have supplied to gardaí are verified as genuine. They will also be given new powers to stop and search vehicles, with random stops to be allowed when child abduction or human trafficking cases were being investigated.