Police Have a Duty to be Clear in Scope of Search Warrants, Argues Human Rights and Equality Commission

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

The Commission argued that this “duty of candour” ensures that the person deciding whether to issue the warrant can properly assess the merits of the application.

In its legal submissions to the Supreme Court in the case of DPP vs Patrick Quirke, published today, the Commission acting as amicus curiae (or ‘friend of the court’) stated: “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.”

Earlier this week, the Commission 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 are robust, and lead to effective and fair investigations.

To assist the Court to explore whether a duty of candour is required of the Gardaí when seeking warrants, the Commission cited international case law from other common law jurisdictions and from the European Court of Human Rights. 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 Commission goes on to say that an interpretation of this section “which does not require such disclosure would at a minimum lead to doubts over the constitutionality of the section.”

The power to apply to the High Court, Court of Appeal or the Supreme Court for permission to appear as amicus curiae is an important legal power of the Commission, as set out in Irish Human Rights and Equality Commission Act 2014. It allows the Commission to address the court in a non-partisan role on issues concerning human rights and equality that have wider consequences for society in general.

Sinéad Gibney, Chief Commissioner of the Irish Human Rights and Equality Commission stated:

“There is no doubt that search warrants are a key tool for policing. The law that governs their use should be precise and clear on how warrants are sought and used, and should 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. This is particularly important where there is an intention to search for and seize electronic devices”

For further information, please contact:
Sarah Clarkin, IHREC Communications Manager,
01 852 9641 / 087 468 7760
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Editor’s Note

Read the full written submissions made by the Irish Human Rights and Equality Commission as Amicus Curiae (Friend of the Court) in DPP vs Patrick Quirke

Irish Human Rights and Equality Commission

The Irish Human Rights and Equality Commission is an independent public body, appointed by the President and directly accountable to the Oireachtas. The Commission has a statutory remit set out under the Irish Human Rights and Equality Commission Act (2014) to protect and promote human rights and equality in Ireland, and build a culture of respect for human rights, equality and intercultural understanding in the State.
The Irish Human Rights and Equality Commission is Ireland’s national human rights institution and is recognised as such by the United Nations. The Commission is also Ireland’s national equality body for the purpose of a range of EU anti-discrimination measures.