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Give us your password or go to jail!
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That will have been the police having an off the record chat with the media to give them context for the story. This happens all the time...I was referring to the responsibilities of both forces to keep private information private, rather than the legislation he was convicted of.
The article does not say he was arrested for not providing his password. Admittedly I was wrong also, it just says he was arrested "by police tackling child sexual exploitation", they could have been working on a different case for a while, although it certainly implies that's what he was arrested for.But the police would have had a warrant for the computer on the back of evidence implicating him in a crime
Did you say something about hearsay before? :P
The police will have had evidence to suspect him in a crime. The standard of evidence required for a warrant is very different than the standard of evidence to convict someone of something, of course. To be honest, we can't read anything into that the police had a warrant.Trevor Sargent - I fail to see the relevance. Were the Gardaí legally required to keep the letter Sargent sent confidential? Is there any evidence the Gardaí leaked it (keeping in mind they had no apparent motive to do so)?
PJ Sheehan - Again, I fail to see the relevance. Were the Gardaí legally required to keep the report confidential? Or was it a matter of public record once someone actually knew where to look? And where did the leak come from?
The relevance is that you were saying that the police keep information in investigations private, and that the individual potentially paranoid about the legal, but private, material they had on their hard drive leaking out, was an unreasonable fear.
These cases are relevant because they are two high profile examples, off the top of my head, where gardai have been leaking information to the media.
Both matters were confidential; neither was a matter of public records - I deduce this from the fact that the gardai started internal investigations into the sources of the leaks in both matters.
No, you don't understand the working relationship between the media and the gardai (unless I'm very much misinformed).Which is a condemnation of the media, not the Gardaí. It's a phrase which means nothing, but fills column inches. I'm "known to the Gardaí", it's where I applied for my passport. It's bad, lazy journalism, but I don't see what it has to do with the discussion.
What that phrase means is that there is no evidence that can be used to convict or trial someone of wrong doing, but that a garda has had a chat with the journalist covering the case, and told the journalist 'yes this person is a criminal', on the condition they won't be quoted.
The journalist then has a sourced, privileged, confidential statement, so is allowed say 'was known to the gardai' without fear of libel.
Its a way of the police communicating information to the public that they aren't actually allowed communicate, and it happens all the time.
I don't think this is necessarily a terrible thing; Im not sure, and it depends on the circumstances a lot - but its naive to assume that everything that should legally be completely secret is in fact completely secret.Speech is not objective evidence. It is open to a huge range of interpretation and varies massively depending on the precise circumstances, and it may not be informed speech.
You did not answer the question about whether people should have a right to remain silent.
He can't give them access to his computer without revealing the passphrase, clearly.Also, one thing I should have made clearer: I don't believe the suspect should be required to give up his password. He should be required to give access to his computer though. It's the difference between opening a locked door for the police (with a search warrant) and giving them a key. He can give them a key if he wants, but he has to at least open the door
In most progressive countries we recognise that someone has a right not to be compelled to act against their own interests in criminal proceedings.
Its hard to administer a just justice system without it.Can you tell me your response to this scenario I posted earlier?A suspected arms dealer is arrested and a warrant is issued to search his home, where there is believed to be a weapons shipment. The police search the home, finding nothing, except for a walk-in safe which they can't access. Should the suspect be required to give up access to the safe?
It's not clear what you mean to 'give up access to the safe'?
The suspect shouldn't be allowed stand in front of them or get in their way. The police should be allowed move the suspect if the suspect does.
The police should have the power to search the suspect for keys to the safe. They should have the power to go through all the suspects stuff and look for any such keys. They should have the power to question the suspect, and any and all accomplices.
But they shouldn't have the power to force the suspect to do tell them how to open the safe, and potentially self-incriminate.
If the suspect won't talk to the police, they should have the power to open the safe with a drill. If they aren't able to open the safe - lets say they cant find it - then thats tough luck.
The police shouldn't be allowed to ask 'Where have you hidden the bodies' resulting in the suspect either A) Admitting the murder charge, which the suspect is entitled to a fair trial on or
committing the further hypothetical offence of 'refusing to talk to the police'
The right to silence is important, and jailing someone for refusing to say something is not right.
There's two other observations to make:
1) If he had instead said he had forgotten his password, would he have been jailed? Probably - in which case its a serious crime to forget something? Why? Have you ever forgotten a password?
2) This is supposed to be counter terrorism legislation, brought in to fight terrorists, which this guy has not been accused of.
Like I said, I don't know whether this guy is guilty or innocent. I think we should not presume guilt, on the basis of his silence, like some here are doing. And I also think the RIP legislation is not compatible with a right to silence.0 -
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With sufficient time, and in the absence of countermeasures, or encryption, then yes.
Just to clarify, in the case being discussed, there apparently was encryption.0 -
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Trevor Sargent citation:You can't possibly make a statement like that without backing it up. The arresting officer will have been named in the court case. I don't know what the requirements are for obtaining the information on which officer is assigned to which department, but I don't believe it would be particularly difficult to find out.
I was using the term implicate in its weaker sense i.e., it suggested he had something to do with it. And we can read into the fact that a magistrate looked at the evidence and issued a warrant on that basis. Just because it's a lower standard does not mean that it's no standard, or an unreasonable standard. The guidelines for warrants are very specific
I never said it was an unreasonable fear. I said the victim (and it would be a victim, it is illegal) has recourse to legal action. There have been instances of police brutality in cells, should you resist arrest so?
Have you a source for the starting of internal investigations? I've seen reports saying that the initial handling of the incidents prompted investigations but nothing about investigations into the 'leaks'. In Sargeant's case alone, dozen's of people would have had the opportunity for leaking the letter, before it even got to the Gardaí.
http://www.rte.ie/news/2010/1006/sargentt.html
The only source I have is the national broadcaster reporting that the Garda Commissioner ordered an investigation.The DPP does not give reasons for deciding not to prosecute but his decision marks the end of the inquiry set up by the Garda Commissioner after the Minister for Justice was accused of being the source of the leak.
Yes, it apparently was against the law, but no prosecution will be brought, and we don't know the reasons why.
Sheehan leak:
http://www.independent.ie/breaking-news/national-news/report-into-leaking-of-sheehan-file-2347420.htmlGarda Commissioner Fachtna Murphy has demanded a report into the leaking of a file on a TD who was allegedly prevented from drink-driving away from the Dail.
This is presumably on-going.
I'm not even sure it was bad to leak that, if there was anything that should be leaked, its evidence of a sitting TD trying to lean on someone for preventing them committing a crime, but thats another discussion.
I'm not saying its legal.And if the Gardaí had started an internal investigation, wouldn't that tell you that a leak would be illegal?
I'm saying it happens.
I'm saying that something being illegal isn't the same as something never happening, and I'm saying that you are naive to think otherwise.
These are just two high profile political events that came off the top of my head. I'm sure there are many more, but I kind of consider this point closed - stuff does get leaked by the police, whether its legal or not.
They might be, thats quite a subtle point - but thats beside the point. They dont seem to get prosecuted for it. And anyway, I'm just arguing that it happens, not whether or not its legal.That entire paragraph is based on your suppositions. You're deriving a whole lot of specific assumptions based on one phrase that is a catch-all.
Out of curiosity, what does the garda gain from leaking that a person was "known to the gardaí"?
But the people who leak it are breaking the law.And so are the journalists who publish it
Eh, no.
Journalists that publish leaked documents have a completely different set of laws and rules to the people that originally leak them, especially if they can argue its in the public interest.
In many jurisdictions journalists even get special legal protection for this that means they can't be compelled to reveal where they got information from.
I'm not going to go into it, as I'm absolutely no expert in this, but if you look up 'journalistic privilege' and similar terms you'll find lots of info.
Journalists are frequently immune from having to reveal their sources, and typically don't get prosecuted for publishing information they obtained from individuals that had a burden of confidentiality.I thought it was implied: yes, people should have that right
Why not? They can sit him down at a (copy of) his hard-drive and get him to insert the passphrase. I already gave the analogy of a locked door, a suspect doesn't have to give the police the keys to give them access.
Ah, come on.
You aren't going to enter your passphrase into a computer someone else provides you with, or has physical access to. Compelling someone to do that would be the same as compelling them to reveal their passphase.
And if it's in there own interests to destroy evidence, that's ok? If they lie on the stand, they won't get done for perjury?
In most progressive countries we recognise that someone has a right not to be compelled to act against their own interests in criminal proceedings.
Its hard to administer a just justice system without it.
Do you not see the difference between telling a lie on the stand, and saying nothing on the stand?
The difference between destroying evidence, and failing to say something that could provide evidence?Then I fully disagree with you. What if their whole house is an impregnable bunker? A magistrate issues a warrant for a search, and the suspect locks the door and hides the key. Should he not be required to provide access? And should he not go to jail if he doesn't?
I think that if the police think the suspect has hidden the key, and ask the suspect where the key is, the suspect should not have to say anything.
I mean, I don't think this is the best thing in each local single situation.
It'll be possible to construct examples where I think the best thing to do would be force the suspect to yield the key.
But I think that overall, you have to have a 'right to silence' to run a justice system fairly.
If this is too subtle of a point, imagine that the policeman (lets call him Harry) is convinced that Fred is a murderer. But there is no evidence. Why not just lock up Fred on Harry's word? Why not just let Harry, the policeman, shoot Fred, and be done with it? Thats the way 'justice' works in some places.
And the answer to the question is that while requiring evidence might sometimes let a bad thing happen (a guilty person go unpunished), requiring evidence also stops other bad things happening (a completely innocent person getting locked up).
And so it is with the right to silence.
Its a cornerstone of any just legal system. We can't just throw it out because "ah well, we reckon hes guilty and just wont tell us".If the police can show that he should reasonably be able to remember it (e.g. access dates, common usage), then yes, he should be jailed. Equally, if he deliberately mangled the keyboard so he couldn't remember it, he should be charged with destruction of evidence.
It was brought in to help counter terrorism, not solely for the purpose of it. If it was brought in solely for that, it would say it in the legislation e.g. "If a suspect is suspected of terrorism...". There are examples of this already in the law. Legislation is legislation, not what people think it should be used for, or what it was originally brought in to tackle.
I don't presume his guilt of the initial crime, and certainly don't think he should be jailed for it. But he wasn't. And won't be til he's found guilty of it. He is guilty of a variation of obstruction of justice/withholding evidence
He is guilty with violation the RIP act. That is clear. I am not arguing otherwise.
I am arguing that such an act is incompatible with a right to silence, which is necessary for a just justice system, and indeed a democracy.
Thankfully, in this country, for our other legislative faults, we don't have equivalent legislation to the RIP (afaik; Damn it Jim, I'm a computer scientist, not a lawyer); hopefully it stays that way.0 -
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? and then copy and paste the home folder? Physical access is root access no?
? and then copy and paste the home folder? Physical access is root access no?
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