The High Court has refused Yavor Poptoshev’s challenge to legislation allowing gardaí acting under a search warrant to require passwords for computers, including mobile phones. Mr Justice Conleth Bradley held that the powers did not unconstitutionally interfere with the privilege against self-incrimination in the circumstances of the case.
The case arose from a Garda National Economic Crime Bureau investigation into suspected offences, including alleged revenue, Companies Act and social welfare offences. On 8 January 2024, a District Court judge issued a search warrant for the applicant’s home in Stillorgan, County Dublin. The warrant and the sworn information supporting it referred to electronic devices, including mobile phones, and to the provision of passwords.
During the search the following day, gardaí seized two Google Pixel smartphones and an Asus laptop. The applicant confirmed that he owned them and that each required a password or PIN. He refused to provide the passwords after gardaí explained the statutory requirement and the potential consequences. He was arrested and charged with three alleged offences under section 49(1)(c) of the Criminal Justice (Theft and Fraud Offences) Act 2001, relating to his refusal to provide passwords for the devices.
The applicant sought to challenge sections 48(5)(b)(i), 49(1)(c) and 49(2) of the Act, which respectively provide for requiring a password, create an offence for failing to comply without lawful authority or excuse, and permit arrest in specified circumstances. He argued that the provisions disproportionately interfered with the privilege against self-incrimination. He also argued that mobile phones were not “computers” covered by the legislation.
The judge concluded that the passwords, like the data they unlocked, existed independently of the applicant’s will. He found that the three devices were computers within the meaning of the Act and fell within the scope of the sworn information and warrant. He also held that the statutory provisions were proportionate in the circumstances and that the privilege against self-incrimination was not engaged.
The court refused all relief sought by way of judicial review, including the requested declaration that the provisions were unconstitutional. It also refused a declaration of incompatibility under the European Convention on Human Rights Act 2003; the question of damages therefore did not arise. The judgment proposed that the case return to court on 20 December 2024 to deal with final orders, including costs. The decision did not determine the applicant’s guilt on the three criminal charges.