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Sweeping new powers for Gardai (and no opposition)

  • 15-06-2021 7:30am
    #1
    Registered Users Posts: 5,192 ✭✭✭ Elessar


    Surprised this hasn't been covered here yet.

    On Monday the Minister for Justice published the Garda Síochána (Powers) Bill which sees incredible new changes to search warrants and detention for Gardai. The changes here are enormous and have really shocked me as a normally easy going kind of citizen. What's worse is that there seems to be little if any opposition from politicians.

    Here are some of the main points:

    - The new powers mean 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. You don't even have to be charged to be asked. You need only be a suspect.

    - The presence of an lawyer at an interview is no longer guaranteed. If the Gardai don't like the lawyer, they can get rid of him.

    - A breach of the law under this bill cannot result in either a civil or criminal prosecution. Additionally, any such breach does not affect the admissibility of evidence. Previously, the Gardaí had to at least obey the law in assembling a case. That would no longer be the case. ("Oh we didn't follow the law when we arrested you? Doesn't matter you're still going to jail!")

    - Search warrants can now be written by Superintendents, they don't even need to go before a judge anymore. It is supposed to be in "exceptional circumstances" but nowhere are these circumstances defined. This is a massive and glaring red flag in my book.

    These new powers are quite alarming. The requirement to hand over your device passwords, without being charged, is hugely alarming and a smack in the face to privacy. I could forsee a situation where it could be self-incriminating if they found an old .mp3 or tv show you downloaded years ago, and they could then use that as leverage to pressure a suspect. Not to mention personal private records, transcripts, photographs etc.

    Whats more, there doesn't seem to be any opposition to this and it will likely fly through the Dail. Whereas I feel if this was any other EU country, it would get the proper scrutiny it deserves and there would be privacy and personal liberty campaigners opposing it and demanding changes. Here, its like us Irish don't really care about these things and will just go along with it "ah sure it'll be grand" kind of attitude.

    https://www.irishexaminer.com/news/arid-40313759.html


«1345

Comments

  • Subscribers Posts: 35,954 ✭✭✭✭ sydthebeat




  • Registered Users Posts: 23,323 ✭✭✭✭ Peregrinus


    Elessar wrote: »
    Surprised this hasn't been covered here yet.
    There's this thread, and this one.


  • Posts: 0 [Deleted User]


    People don't really understand the consequences and as most are law abiding people they don't see it affecting them.

    If what you say about being denied a solicitor under questioning is true that is a huge problem.


  • Registered Users Posts: 5,601 ✭✭✭ Jinglejangle69


    Just say you've forgotten your password.

    Everyone does at some stage.


  • Posts: 0 [Deleted User]


    What about biometric fingerprint-based passwords, for example? Is it now legal to open devices by forcibly placing the suspect's finger on the scanner?


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  • Registered Users Posts: 1,460 ✭✭✭ WrenBoy


    Did I read also that Gardaí wont be required to take notes during an interview. What is the new format ? Audio recorder ? or are we to just believe the Garda's account of an interview from memory or what ? With the number of cases of Garda misconduct over the years I would be very sceptical of these changes.


  • Registered Users Posts: 23,323 ✭✭✭✭ Peregrinus


    What about biometric fingerprint-based passwords, for example? Is it now legal to open devices by forcibly placing the suspect's finger on the scanner?
    No, it's not. And the Bill won't make it so.

    There's an existing power, under search warrants issued in connection with theft and fraud offences, to require production of passwords and also to require somebody on the premises being searched "to enable the member to examine the information accessible by the" device. The Bill mirrors this power, but extends it to search warrants issued iin connection with any indictable offence, and with certain summary offences.

    You could argue that this means the guards could require someone to unlock a phone by having their fingerprint scanned, but I don't know of any case which considers whether the power extends so far. But, even if the person can be required to do this and refuses, I don't think the guards can forcibly apply their fingers to the phone; all they can do is charge them with the offence of failing to compy with a search warrant, try them, convict them, sentence them. If the Oireachtas wants to create a power for the guards to manhandle people in this way, it would need to do so explicitly. And I would expect a Bill containing such a provision to be, um, constitutionally questionable, to put it no higher.


  • Registered Users Posts: 18,536 ✭✭✭✭ Akrasia


    The password issue is a funny one

    If there is a search warrant issued for the gardai to search a building for evidence of a specific crime for example, armed robbery, and they find a dead body on the floor of the sitting room, they are allowed to record this in evidence even if the warrant was for a different offense because a judge would find it reasonable in this case to charge the offender with a serious crime

    If someone is forced to surrender their password for their phone, in relation to a drug offense, and the gardai see a bunch of images of child abuse or other serious crimes, then the same principle should apply?

    If the gardai get a warrant to search a house, and the door is locked, they don't spend all day negotiating with the owner to get he key, they ram the door down. If the door was made of reinforced steel, they'd go through a different door or window

    Phone security is so advanced now, that the only way to access a device is with the password, so why should criminals be able to hide their crimes in an encrypted device, when in the past, they would have had the evidence of crime in paper records in their home


  • Registered Users Posts: 2,320 ✭✭✭ Nermal


    Akrasia wrote: »
    why should criminals be able to hide their crimes in an encrypted device, when in the past, they would have had the evidence of crime in paper records in their home

    I couldn't have been forced to show the police where the paper records were. It's up to the police to find them, I don't have to help.

    These powers amount to forcible self-incrimination. Seems to me they'll fail as soon as they are tested.


  • Registered Users Posts: 18,536 ✭✭✭✭ Akrasia


    I am very concerned about the changes in how warrants are issued. I think the superintendent is way too close to the ground to make an independent decision on the issuing of warrants, there needs to be oversight and it should definitely not be within the remit of the gardai to issue and execute warrants

    If the bill is giving more rights to the gardai, and taking rights from the suspect/witness then there needs to be a corresponding increase in oversight and regulations on how the gardai can operate

    There is big risk that the gardai will use these powers to intimidate and coerce people to cooperate with them without any external oversight or even charges being brought against them, and there can be many items in a phone/computer that are not illegal but are of a very sensitive nature, eg, intimate photographs, or evidence of infidelity or unrevealed sexual preference, or sensitive information relating to business activities. Gardai should all be required to sign a NDA before accessing anyone's private device and only items relating to serious criminal offenses can be disclosed and only for the purpose of prosecuting a criminal conviction


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  • Banned (with Prison Access) Posts: 22 ✭✭✭ Onion Bahji


    Shhhure if you’ve done nothing wrong then you have nothing to fear


  • Registered Users Posts: 1,338 ✭✭✭ JayRoc


    Elessar wrote: »
    - The presence of an lawyer at an interview is no longer guaranteed. If the Gardai don't like the lawyer, they can get rid of him.

    Since when could solicitors be present during interviews??


    (Edit: having looked it up, they have been allowed since some time after 2014, apparently! News to me)


  • Closed Accounts Posts: 98 ✭✭ NoLuckLarry


    Shhhure if you’ve done nothing wrong then you have nothing to fear

    A nonsense argument, everybody has a right to privacy. If the gardai wanted to install a camera in your house you'd be fine with that too? Sure if you're not doing anything wrong you have nothing to fear right?


  • Registered Users Posts: 18,536 ✭✭✭✭ Akrasia


    Nermal wrote: »
    I couldn't have been forced to show the police where the paper records were. It's up to the police to find them, I don't have to help.

    These powers amount to forcible self-incrimination. Seems to me they'll fail as soon as they are tested.

    If you leave your incriminating documents in a folder in your 'My Documents' folder or don't clear your internet history, then it's the same as leaving your documents in the waste paper basket or on your coffee table

    The gardai won't invest the resources to get your device forensically examined for hidden files and folders if you're not being investigated for a serious crime

    Gardai used to be able to request phone records, for very serious crimes, they could get the context of your text messages and emails from a phone company or ISP, but with end to end encryption that's less useful now unless the device is unlocked, the data is illegible

    For very serious crimes, I think this may be necessary. In the arms race between the ability for criminals to hide their criminal activity, and the ability for the police to investigate and prosecute crimes, where the gardai suspect that there is evidence in a device that will incriminate a criminal, and they do not supply the password to access the device, then the options are to either hack into the device, force the manufacturers to have a back door in, or to make it compulsory for the device owner to supply the password to unlock the device

    The criminal penalties for not supplying the device password need to be high enough to be an adequate incentive to cooperate
    What is the point of a 100 euro fine for not supplying a password, if there are millions of euros of criminal assets linked to the device? Or a 2 week jail sentence, if the device holds evidence of a crime that could result in a multi year jail sentence if convicted?


  • Closed Accounts Posts: 98 ✭✭ NoLuckLarry


    Akrasia wrote: »
    If you leave your incriminating documents in a folder in your 'My Documents' folder or don't clear your internet history, then it's the same as leaving your documents in the waste paper basket or on your coffee table

    The gardai won't invest the resources to get your device forensically examined for hidden files and folders if you're not being investigated for a serious crime

    Gardai used to be able to request phone records, for very serious crimes, they could get the context of your text messages and emails from a phone company or ISP, but with end to end encryption that's less useful now unless the device is unlocked, the data is illegible

    For very serious crimes, I think this may be necessary. In the arms race between the ability for criminals to hide their criminal activity, and the ability for the police to investigate and prosecute crimes, where the gardai suspect that there is evidence in a device that will incriminate a criminal, and they do not supply the password to access the device, then the options are to either hack into the device, force the manufacturers to have a back door in, or to make it compulsory for the device owner to supply the password to unlock the device

    The criminal penalties for not supplying the device password need to be high enough to be an adequate incentive to cooperate
    What is the point of a 100 euro fine for not supplying a password, if there are millions of euros of criminal assets linked to the device? Or a 2 week jail sentence, if the device holds evidence of a crime that could result in a multi year jail sentence if convicted?

    And what about when the gardai start abusing this power, and asking fellas caught with 25e of weed for their pin numbers so they can find out who they got it from? If this power is even a possibility, then it needs to have clearly explicit limitations on when it can be used.


  • Registered Users Posts: 18,536 ✭✭✭✭ Akrasia


    A nonsense argument, everybody has a right to privacy. If the gardai wanted to install a camera in your house you'd be fine with that too? Sure if you're not doing anything wrong you have nothing to fear right?

    If the Gardai had a warrant to have 24 hour surveillance on your home, then that's the same thing

    The issue with this bill is that warrants should not be easy, they should require that the gardai have a probable cause and that they can convince an independent judge that a warrant is justified due to the negative impact it would have on that person's right to privacy


  • Registered Users Posts: 4,948 ✭✭✭ Allinall


    And what about when the gardai start abusing this power, and asking fellas caught with 25e of weed for their pin numbers so they can find out who they got it from? If this power is even a possibility, then it needs to have clearly explicit limitations on when it can be used.

    How would it be abuse of power?

    Why should the Gardai not have powers to find out details of a supplier of illegal drugs?


  • Registered Users Posts: 18,536 ✭✭✭✭ Akrasia


    And what about when the gardai start abusing this power, and asking fellas caught with 25e of weed for their pin numbers so they can find out who they got it from? If this power is even a possibility, then it needs to have clearly explicit limitations on when it can be used.

    I agree, I said this in a post above. I am very very concerned about the changes to how warrants are issued, and the reduction in the legal responsibility for the gardai to fully follow the correct procedures.
    This is a much more serious development than the ability to require criminals to hand over passwords. The gardai need to operate within the law at all times, and even to have a much higher standard than the general public given the position of power they are in.


  • Banned (with Prison Access) Posts: 991 ✭✭✭ ineedeuro


    And what about when the gardai start abusing this power, and asking fellas caught with 25e of weed for their pin numbers so they can find out who they got it from? If this power is even a possibility, then it needs to have clearly explicit limitations on when it can be used.

    That's exactly what they should be doing, not getting the guy with 25 euro and arresting them but moving up the chain to stop the supply.

    If people are unwilling to give the information, get it off the phone, track that person, get that persons phone, track the next person and that leads them to the supplier and gets drugs off the street. Perfecto


  • Registered Users Posts: 4,203 ✭✭✭ JeffKenna


    Shhhure if you’ve done nothing wrong then you have nothing to fear

    Indeed, the guards have definitely showed that over the last few years.


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  • Registered Users Posts: 41,300 ✭✭✭✭ SEPT 23 1989


    Ministerium für Staatsicherheit approves of this development


  • Banned (with Prison Access) Posts: 991 ✭✭✭ ineedeuro


    Akrasia wrote: »
    I agree, I said this in a post above. I am very very concerned about the changes to how warrants are issued, and the reduction in the legal responsibility for the gardai to fully follow the correct procedures.
    This is a much more serious development than the ability to require criminals to hand over passwords. The gardai need to operate within the law at all times, and even to have a much higher standard than the general public given the position of power they are in.

    It is clear the general public in the majority have no regards for the law anymore or trying to catch criminals. Too busy trying to record the Garda on their phone so they can share on social media.

    Ireland is quickly turning into a kip, large sections are no go areas and they are getting worse and not better. Unless we start to clean up the place then it will just get worse, especially if we are hoping for the Gardai to get help from the general public

    I couldn't give two hoots if the Garda scrolls through my phone, if he can find anything exciting on it he can let me know. He will be bored to death


  • Banned (with Prison Access) Posts: 22 ✭✭✭ Onion Bahji


    A nonsense argument, everybody has a right to privacy. If the gardai wanted to install a camera in your house you'd be fine with that too? Sure if you're not doing anything wrong you have nothing to fear right?

    Thought it was clear I was joking lol


  • Posts: 0 [Deleted User]


    Been a long time since I read such an incorrect post. The op pretty much got every single part wrong.

    Primarily, this bill just takes a lot of different laws al/ court decisions and places them in the one spot with clear guidelines. Like the UK PACE did for them

    The new password power requires a warrant. Gardai can currently get a warrant to seize and forensically access your laptop.

    Self incrimination. The power compels ACCESS just as Gardai have powers to demand intimate samples and fingerprints. Gardai can demand your breath sample. Compelling suspects to provide something is not new.

    Superintendent warrant. Has existed since 1939 and yet it's only a concern now for some reason. Only applies in certain circumstances and situations. If the difference between a victim being alive or dead is waiting for a judge at 3am then it's on your conscience to deny this.

    Restriction of solicitor. Well your just twisting now. At present the courts have said that solicitors should be present. This bill will actually make it a legal right.

    Recording of interviews. All interviews and digitally recorded on DVD but Gardai still need to make hand written notes. A 30 minute interview is a 90 minute interview and not fluid as a result. This bill places garda interviews in line with pretty much the entire world by moving from the 19th century into the 21st.

    The liability of Gardai from personal claims is established already. You sue the organization, not the person. The bill does not in any manner way allow Gardai to knowingly break the law or avoid Criminal prosecution.

    Admission of evidence. The supreme court itself made this rule. What Gardai acting in good faith obtain evidence and that action is found too be outside the technical specifications of the warrant, the evidence may be allowed if the transgression is minor, not directly involved and Gardai could have obtained the evidence legally to begin with.

    The op either hasn't read the bill or has a clear anti garda bias


  • Registered Users Posts: 3,606 ✭✭✭ stoneill


    I'll tell you what I learnt from the bill, there is such a thing as "citizens arrest".
    I though that was just a made up thing.

    Head 25 – Arrest without warrant by other persons
    Provide that:
    (1) Subject to subheads (3) and (4), any person may arrest without warrant anyone who is or
    whom he or she has reasonable grounds to suspect to be in the act of committing a serious
    offence.
    (2) Subject to subheads (3) and (4), where a serious offence has been committed, any person
    may arrest without warrant anyone who is or whom he or she has reasonable grounds to suspect
    to be guilty of the offence.
    (3) An arrest other than by a member of the Garda Síochána may only be effected by a person
    under subhead (1) or (2) where he or she has reasonable grounds to suspect that the person to
    be arrested by him or her would otherwise attempt to avoid, or is avoiding, arrest by a member
    of the Garda Síochána.
    (4) A person who is arrested pursuant to this Head, or Head 24, by a person other than a member
    of the Garda Síochána shall be transferred into the custody of the Garda Síochána as soon as
    practicable.


  • Posts: 0 [Deleted User]


    stoneill wrote: »
    I'll tell you what I learnt from the bill, there is such a thing as "citizens arrest".
    I though that was just a made up thing.

    Head 25 – Arrest without warrant by other persons
    Provide that:
    (1) Subject to subheads (3) and (4), any person may arrest without warrant anyone who is or
    whom he or she has reasonable grounds to suspect to be in the act of committing a serious
    offence.
    (2) Subject to subheads (3) and (4), where a serious offence has been committed, any person
    may arrest without warrant anyone who is or whom he or she has reasonable grounds to suspect
    to be guilty of the offence.
    (3) An arrest other than by a member of the Garda Síochána may only be effected by a person
    under subhead (1) or (2) where he or she has reasonable grounds to suspect that the person to
    be arrested by him or her would otherwise attempt to avoid, or is avoiding, arrest by a member
    of the Garda Síochána.
    (4) A person who is arrested pursuant to this Head, or Head 24, by a person other than a member
    of the Garda Síochána shall be transferred into the custody of the Garda Síochána as soon as
    practicable.

    How did you think security guards arrested shoplifters?


  • Registered Users Posts: 2,320 ✭✭✭ Nermal


    Akrasia wrote: »
    In the arms race between the ability for criminals to hide their criminal activity, and the ability for the police to investigate and prosecute crimes, where the gardai suspect that there is evidence in a device that will incriminate a criminal, and they do not supply the password to access the device, then the options are to either hack into the device, force the manufacturers to have a back door in, or to make it compulsory for the device owner to supply the password to unlock the device.

    We have the right not to self-incriminate.

    The power to compell production of passwords unquestionably infringes that right.


  • Posts: 0 [Deleted User]


    Nermal wrote: »
    We have the right not to self-incriminate.

    The power to compell production of passwords unquestionably infringes that right.

    You actually don't in all situations and It absolutely does not in any way infringe upon that right where it exists

    The power to demand a password is absolutely identical to the current powers for Gardai to demand;

    Drivers license
    Insurance
    Fingerprints
    DNA sample
    Photograph
    Breath sample
    Urine sample
    Blood sample
    Account for actions
    Entry to property
    Bodily search

    So, of all of those can be demanded, why do you think a password is different?


  • Closed Accounts Posts: 98 ✭✭ NoLuckLarry


    ineedeuro wrote: »
    That's exactly what they should be doing, not getting the guy with 25 euro and arresting them but moving up the chain to stop the supply.

    If people are unwilling to give the information, get it off the phone, track that person, get that persons phone, track the next person and that leads them to the supplier and gets drugs off the street. Perfecto

    Yeah because the "war on drugs" is going to be won by going through text messages from a guy with a 25 bag :rolleyes:

    You should be very very careful about what rights you flippantly want to have removed because once one goes, more will follow.


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  • Registered Users Posts: 2,314 ✭✭✭ paw patrol


    The bill is draconian it's more police state stuff on top of the covid emergency laws that are still in place makes for grim reading


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