The Supreme Court’s judgment on Patrick Quirke’s appeal involves an important first – an in-depth engagement by the country’s top court with digital privacy issues.
While considered unlikely to significantly impede investigations or prosecutions by An Garda Síochána, the judgment has potential implications for other cases raising data privacy issues including, possibly, the appeal of convicted murderer Graham Dwyer.
Judgment on Dwyer’s appeal is due to be given by the Court of Appeal on Friday but, depending on the outcome, he or the Director of Public Prosecutions (DPP) could seek a further appeal to the Supreme Court.
Because the Supreme Court’s judgment in the Quirke case has set down markers for making applications for search warrants without going as far as requiring search protocols, legal and academic sources believe it will not seriously effect other investigations or prosecutions.
Requiring search protocols upon the valid seizure of a computer for the judicially authorised purpose of a search into online spaces is “not demanded by any aspect of the right to privacy”, the court said. It noted that such protocols are not required in the US and Canada, since the practicality of limiting in advance what might be relevant is difficult and more so than in a house search.
“This is an important judgment for online privacy and it sets a marker for other cases coming up shortly,” said Eoin O’Dell, associate professor at Trinity College Dublin’s Law School and a specialist in data privacy law. “It recognises the online world raises lots of additional questions for privacy rights that have to be answered.”
The judgment sets “a baseline” from which a standard practice for seeking search warrants is likely to quickly develop and is unlikely to have any major impact on future investigations and prosecutions, he said. Some existing prosecutions may be affected and may require a change in prosecution strategy, he added.
The judgment’s impact on the status of Quirke’s conviction will be decided at a later stage.
The core finding by the court is that, when seeking search warrants from the District Court under section 6 of the Criminal Justice Act 2006, gardaí must provide sworn information they have an objectively founded reasonable suspicion that the search could yield information for a criminal investigation.
If gardaí anticipate that electronic devices may be of relevance, they should say so. The information put before the District Court must be sufficient to allow it to consider the application with appropriate care as to the affected person’s rights.
If gardaí come across other items during their search relevant to another crime, those can be seized. If a computer is included among those other items, gardaí can seek a separate warrant to search that.
Because gardaí had not specifically included electronic devices among the information put before the District Court when seeking the warrant to search Quirke’s home, they could not lawfully search a computer seized from there, the court ruled.
The warrant issued concerned itself only with physical objects, particularly those that might establish a connection with the deceased, Bobby Ryan.
The court drew a distinction between a “physical” and a “virtual” space and said intrusion into a virtual space leads to a more significant intrusion of privacy rights. In Quirke’s case, the intrusion into the virtual space was unlawful because the District Court did not have sufficient information to engage in the necessary prior judicial analysis as to whether the warrant should be authorised.
The DPP, in opposing Quirke’s arguments concerning the warrant, had argued that police searches had remained lawful despite, for instance, personal diaries being read.
Mr Justice Peter Charleton, who gave the court’s judgment, disagreed, saying certain features of computers make them “fundamentally different” from diaries and other physical objects.
Computers store immense amounts of information and affect users’ ability to control the information available about them in two ways – they create information without the users knowledge and retain information users have tried to erase, he said.
Privacy interests are “markedly stronger” when it comes to computers because of how modern society lives through devices that record every communication and passing thought that inspires a search.
The Law Reform Commission, he noted, had in 2015 recommended gathering together, in “accessible” legislation, a general and necessary set of powers of search, including for computers.