Maria Byrne (Fine Gael)
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Amendment No. 1, in the name of Senator McDowell, has been ruled out of order.

Lynn Ruane (Independent)
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I move amendment No. 2:

In page 6, lines 25 and 26, to delete “other place at which a person may be held while in the custody of An Garda Síochána” and substitute “vehicle”.

This amendment simply proposes to delete the words "other place at which a person may be held while in the custody of An Garda Síochána" and to insert "vehicle". It seeks to narrow the definition of a "Garda custody facility" in the Bill to a Garda station or a Garda vehicle. We believe that the definition in the Bill as it stands is far too wide. There is no clarity in the current definition of "other place". It could feasibly include any location, including locations that are unmonitored or unregulated.

Current statutory regulations are specified in the Criminal Justice Act 1984 for the treatment of persons in custody in Garda stations. The 1987 An Garda Síochána stations regulations outline clear provisions for the treatment of persons who are held in Garda stations. However, these regulations apply to these settings and no regulations are in place for those outside of Garda stations. Can the Minister give us clarity as to where he envisages these other places to be? Will they be the private detention facilities that will be established under the International Protection Act? How does he anticipate the wideness of the definition that has been applied? I note that we have concerns that the protections granted to persons who are detained in Garda stations will not carry over to other places that might be used for detention. Regardless of what the Minister might say in relation to this, the Bill as drafted does not provide this clarity as it is currently written on paper. Without that clarity in the legislation, we believe that this definition may require amendment.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank Senator Ruane for her amendment. Before dealing with her amendment, I advise the committee of my intention to bring forward amendments on Report Stage. These will primarily provide for the repeal of existing overlapping statutory search warrant provisions to ensure alignment with the broader body of legislation. I also highlight that some amendments may be necessary to address technical drafting issues, as may be agreed between myself and the Attorney General's office for Part 5, concerning persons in Garda custody.

I will now deal specifically with Senator Ruane's amendment, which seeks to remove a section of the definition of Garda custody facility. The definition at present provides that a "Garda custody facility" means a station or other place at which a person may be held while in the custody of An Garda Síochána. Senator Ruane wants to take out the latter part of the definition beyond "station" and replace it with "vehicle". Replacing "other place" with the limited term of "vehicle" would unduly restrict lawful custody.

Senator Ruane has asked for examples of what type of scenario I am talking about. It is important to note that suspects are frequently detained outside Garda stations for reasons unrelated to transit, as Garda custody extends beyond stations and vehicles. For example, individuals requiring medical attention are held under Garda custody within hospital emergency departments. Detainees may also be held in courthouse holding cells or dedicated airport processing facilities. The current wording is therefore necessary to ensure custody operations safely adapt to practical requirements. For that reason, I am unable to support the amendment. There is a benefit in having a broad definition of any "other place" at which a person may be held while in the custody of An Garda Síochána. They obviously still have to be lawfully within the custody of An Garda Síochána. As my examples have illustrated, however, that could be in hospital, in a courthouse or in dedicated airport processing facilities.

Maria Byrne (Fine Gael)
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Amendment No. 3 and amendments Nos. 30 to 33, inclusive, are related and may be discussed together by agreement.

Sarah O'Reilly (Aontú)
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I move amendment No. 3:

In page 6, between lines 34 and 35, to insert the following: “ “journalistic privilege” means the right of a journalist to protect the confidentiality of sources and unpublished journalistic material in accordance with Article 10 of the European Convention on Human Rights;”.

I thank Senators Boyhan and Clonan for co-signing these amendments. I understand Senator Keogan will also be speaking in support of them. It is essential to insert a definition of "journalistic privilege" into the Bill. At first glance, this may appear to be a technical drafting amendment but, in reality, it goes to the very heart of democracy and the protection of freedom of the press in this State. Journalistic privilege is not some special favour granted to reporters. It is a long-recognised democratic safeguard that protects the ability of journalists to receive information from confidential sources without fear that those sources will later be exposed. Without that protection, many stories of enormous public importance would never come to light. Rather than exposing corruption, wrongdoing, abuse of power or institutional failure, potential whistleblowers would simply remain silent.

The Irish courts have repeatedly recognised this principle. In the landmark case taken by the Mahon tribunal against The Irish Times in 2009, the Supreme Court recognised for the first time that journalists enjoy a right under Irish law to protect confidential sources. More recently, Irish courts have repeatedly affirmed the importance of Article 10 of the European Convention on Human Rights and the central role the protection of sources plays in a functional democracy.

This amendment simply puts this principle clearly into legislation. It provides clarity not only to journalists, but to gardaí. If we are to grant extensive powers of search, seizure and digital access under this legislation, we have a duty to ensure strong safeguards exist where press freedom may be affected. The stronger the powers of the State become, the stronger the protections for civil liberties must become. I urge the Minister and the Government to accept this amendment. Doing so would strengthen the Bill, reduce legal uncertainty and demonstrate that this House takes seriously both freedom of expression and the essential role investigative journalism plays in a democracy.

Cathal Byrne (Fine Gael)
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I recognise the purpose behind the amendment being put forward by the Senators. Recognising the importance of the protection of journalists' sources and the recognition afforded to it by the courts over many years, will the Minister clarify whether this matter is already addressed by section 2(2)(b)? The section states that references to material being privileged:

shall be construed as a reference to the material being, by or under any enactment or rule of law—

[...]

(b) the subject of privilege, other than legal professional privilege, where, under the enactment or rule of law concerned, the holder of the material is obliged to disclose it to another person only where a court has directed such disclosure

Where journalists find themselves in situations where they are under pressure to disclose sources, is their privilege already protected by section 2(2)(b)? Will the Minister confirm whether that is the case?

Sharon Keogan (Independent)
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I thank my colleague Senator Sarah O'Reilly for putting down this amendment. I will speak to the grouping, which addresses a clear and important gap in the Bill as it currently stands. At the outset, I will say that I am not approaching these amendments from a position of hostility to Garda investigations. I fully accept that there will be circumstances where journalistic material is relevant to serious criminal inquiries. These amendments do not seek to block investigations but to ensure that when the State interferes with journalistic material, it does so in a way that is careful, proportionate and consistent with long-established constitutional and European principles.

Amendment No. 3, which introduces a definition of "journalistic privilege", is a modest but necessary starting point. The Bill already contains detailed provisions on legal professional privilege but it is largely silent on journalistic privilege. This is despite the fact that Irish courts and the European Court of Human Rights have repeatedly recognised the protection of journalistic sources as a corner-stone of any democratic society. If we value freedom of expression and freedom of the press, it makes sense to recognise that explicitly on the face of the legislation.

Amendments Nos. 30 to 33, inclusive, give practical effect to that principle. They do not create an absolute shield for journalists. Instead, they require applications for search warrants involving journalistic material to be made on notice and heard inter partes by default unless genuinely exceptional circumstances exist. That strikes me as a reasonable and balanced approach.

To put it plainly, searching a journalist's phone, laptop or files is not the same as searching an ordinary premises. Journalists routinely hold unpublished material, communications and information that, if exposed, could have a chilling effect well beyond the individual case in question. A simple hypothetical illustrates this point. Let us say a journalist is investigating alleged wrongdoing by a powerful organisation and An Garda Síochána believes some material held by that journalist may be relevant to the investigation of an offence. Without these amendments, a warrant could be sought and executed without the journalist being heard. By the time the journalist becomes aware of it, confidential sources may already have been exposed. Even if no charges follow, the damage cannot be undone. These amendments introduce an essential pause for judicial scrutiny. Where applications proceed without notice, An Garda Síochána is required to explicitly draw the court's attention to constitutional protection, Article 10 of the European Convention on Human Rights and the requirement for necessity and proportionality. That does not weaken policing. It strengthens oversight and decision-making.

These amendments sit particularly well in the context of the expanded digital powers provided for elsewhere in the Bill. As we have already discussed, modern devices collapse vast amounts of information into a single place. A journalist's device may contain years of work on multiple investigations and numerous sources that are entirely unrelated to the matter under inquiry. Without safeguards of this kind, journalistic privilege risks being recognised in theory but eroded in practice.

This is also about public confidence. A free press does not exist for the benefit of journalists alone. It exists for the benefit of the public. If sources believe that speaking to journalists carries an undue risk of exposure through routine policing powers, fewer people will come forward and matters of genuine public interest may never reach daylight. Supporting these amendments does not create a caste of people who are above the law. It recognises that certain forms of State power can have consequences far beyond the immediate investigation if exercised without sufficient care. For those reasons, I will be supporting this group of amendments. They strengthen both the Bill and the constitutional values it should reflect.

Lynn Ruane (Independent)
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In this grouping, we have amendments Nos. 32 and 33. Section 17 outlines the procedure for applying for a search warrant by a member of An Garda Síochána. Section 17(5) outlines that, if the member suspects that privileged material will be present at the place of the search, he or she must include this information in the application for the search warrant. Section 18 provides for a privilege screening in instances where a judge considers it necessary and proportionate. However, it is not mandated in every instance.

Amendment No. 32 seeks to ensure that, where a member of An Garda Síochána includes in an application that privileged journalistic material might be present at a place that is to be searched, that member will not have access to the material prior to a privilege screening. Without such a provision, the sequencing by which gardaí have access to privileged material could very seriously undermine the confidentiality of that material. The screening process only begins after search warrants have been issued against journalists. Once gardaí are given access to journalistic materials, there is significant risk of improper disclosure of confidential information. A burden is also placed on members of An Garda Síochána. If members were to read privileged information that was in some way associated with a potential crime of any sort, they would have to act on that privileged information. It creates a burden in the other direction too. More generally, this Bill provides a statutory footing in Irish law for the investigation of journalistic material by gardaí, although that footing is constitutionally murky.Currently there is no such provision or clear guidance on how journalistic privilege operates and there has been an ongoing tension between the courts and journalists on whether such a privilege is absolute since the Mahon tribunal sued The Irish Timesin 2009 to recover confidential documents leaked from the tribunal regarding payments to the then Taoiseach, Bertie Ahern. Despite winning the core legal arguments in the case, The Irish Timeswas punished for destroying documents ahead of legal proceedings and the court's decision was to have substantial legal costs awarded against them. The court's message was that journalists do not get to decide what constitutes journalistic privilege, we do. This Bill purports to give the court guidance in how the constitutional right to journalistic privilege can be expressed in practice but the process here is convoluted and unnecessarily complicated.

Amendment No. 33, as the Bill is currently drafted, is probably unworkable. However, as recommended by the Irish Council for Civil Liberties, ICCL, the intention here is that search warrants would not be granted for journalists' homes or places of work without a determination of privilege preceding it. The convoluted way in which the Bill is currently structured does not allow for this and, obviously, a determination of privilege cannot be made from material that is not seized in the course of a search. The fundamental point is that true consideration of journalistic privilege and their associated constitutional rights must be given before the granting of any search warrant. This is simply not the case in the Bill as it is currently drafted.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank Senator Sarah O'Reilly for tabling this amendment and I thank the other Senators for their contributions.

Amendment No. 3 seeks to include within the definitions section of the Bill the definition for journalistic privilege. It is important to remember how this part of the legislation comes before the Houses of the Oireachtas because Senator O'Reilly's amendment, although it is in the definitions section, is to a large extent concerned with Part 3 of the Bill, which deals with the search of premises.

The reason, in part, that this section of the legislation is being brought forward is because of the actions of a journalist back in 2018. Emmett Corcoran was a journalist with The Democrat newspaper and doing his job he covered an incident in Strokestown where some violent disorder took place. Subsequent to that, members of An Garda Síochána went to the District Court and availed of the powers available to An Garda Síochána, which are the powers that still exist today, under section 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997, to seek a search warrant. They wanted to search Mr. Corcoran's house and his premises. When the gardaí went to the District Court they never told the district judge that the person who they wished to search was a journalist or that the premises they wished to search was the office of The Democrat newspaper. In fairness to the gardaí at the time, there is no requirement on them to do that under section 10 of the 1997 legislation, as it exists at present.

Mr. Corcoran, having been served with the search warrant and information being sought from him by the Garda, refused to provide the information. He said that he wanted to assert his journalistic privilege and he was not going to provide information relating to his sources. He went all the way to the Supreme Court and he won. In the decisions of the Supreme Court that came out in 2023, two of the judges, and obviously there was unanimity among the court, Mr. Justice Collins and Mr. Justice Hogan expressly referred to section 10 as it exists at present. They recognised that section 10 does not provide any recognition of the fact that when a garda is searching a premises or applying to the District Court for a search warrant, there is no statutory obligation on the garda to tell the District Court that by the way, the premises we are searching is the home of a journalist or, indeed, using another type of legal professional privilege, would want to search a solicitor's office. In both judgments of the Supreme Court, Mr. Justice Collins and Mr. Justice Hogan said this is an area that requires urgent legislative intervention by the Oireachtas. I repeat: urgent legislative intervention. Implicit in it, and they did not rule it in that case, is that they are sending a message that there is a serious constitutional question mark over section 10 of the 1997 Act because it does not provide for a mechanism for a District Court to be told that the premises being searched may be that of a journalist, a lawyer or an entity that is exercising privilege, or for the process of that privilege to be assessed statutorily.

The primary reason I am bringing forward Part 3 of this legislation is in response to what the Supreme Court said. I am seeking to provide a legislative remedy for the defects in section 10 that were, in my opinion, correctly identified by the Supreme Court. The purpose of the sections that are contained within Part 3 - search of the premises and Senator Ruane referred to some of the provisions - is to set out a statutory mechanism so that if a garda is going to a District Court and he is looking for a search warrant, and he knows that the person he is going to search is a lawyer or a journalist that he has to notify the District Court judge, at the time of making the application, that he believes there may be journalistic privilege or legal professional privilege arising as a result of the search. What I am doing in the legislation is trying to put in place a statutory scheme that respects that. The purpose of this legislation, in terms of Part 3 and the provision in respect of privilege, is that I am giving greater protections to journalists. They do not have those protections at present under section 10. Lawyers do not have that protection at present under section 10. Obviously members of the Garda are aware of the limitations of section 10 but in recent times what in practical terms happens is the gardaí inform the district judge of the fact, if it is a law firm that is being searched, that that obviously should be brought to the attention of the District Court.

I will deal specifically with the amendment tabled by Senator O'Reilly. As I said, she wants, in amendment No. 3, to insert a definition for journalistic privilege. Section 2(2)(b) of the Bill defines privilege as "other than legal professional privilege", a definition which encompasses journalistic privilege as well as other forms. Journalistic privilege is not defined separately because unlike legal professional privilege, it is not absolute and the broad definition is sufficient. This approach permits other privileges, such as public interest privilege, to be considered without needing to define each type individually since the process for handling them is the same. It is the case in Irish law that journalistic privilege is recognised and protected. People have referred to judgments earlier and there is another judgment by Mr. Justice Hogan, which arises from the Cornec case. It is recognised as a form of privilege. However, like many privileges, it is not absolute.

Journalistic privilege is not defined to reflect the absence of any settled legal definition of "journalist" in either EU or domestic law and the long-standing reluctance of courts and legislatures to treat journalism as a fixed legal status. Regulation No. 1083 of 2024, the European Media Freedom Act, does not provide a stand-alone definition of "journalist" but instead focuses on protections for journalistic activities. Likewise, EU jurisprudence has consistently examined whether conduct falls within journalistic purposes or journalistic activities rather than attempting to define journalism exhaustively.

As I said, in the Corcoran case, the Supreme Court adopted the functional understanding of journalism centred on the gathering and dissemination of information in the public interest. The reasoning of the Supreme Court reflects the risk that rigid statutory definitions could exclude emerging forms of media activity in an evolving communications environment, and I agree with that. For those reasons, I am unable to support Senator O'Reilly's amendment.

I will briefly deal with amendment No. 31 since it is being discussed. Article 10 of the convention undoubtedly affords strong protection to journalistic sources and confidential material. However, Strasbourg jurisprudence does not mandate a single procedural model for member states nor does it require that every stage of a warrant process occur inter partes. For those reasons, I do not consider amendment No. 31 necessary. The Garda powers Bill instead establishes a dedicated High Court process for determining claims of privilege before any examination of the material can occur.I will pause there. Using the example of Mr. Corcoran from before, in an instance where that were to apply after this legislation is enacted, the gardaí would be required to inform the court that Mr. Corcoran was a journalist. If there were a dispute between the parties as to what constituted journalistic privilege, Mr. Corcoran would be able to say that he wanted his claim to privilege to be determined. The way it is determined is by the High Court looking at the documents if necessary - if the description is not sufficient - and it will determine whether or not it is journalistically privileged. That is the case with legal professional privilege as well. Just because a lawyer says a document is legally professionally privileged does not mean the other side, the adversary in the case, cannot seek to inspect it. In those circumstances, the court may be required to look at it if the definition as to its privileged status is not sufficiently clear.

The framework in the Bill ensures that the balancing exercise required under Article 10 occurs before any substantive access to the material takes place. That is the critical point of interference for convention purposes. The Court of Appeal in Corcoran stressed the importance of judicial oversight prior to access, save in urgent circumstances. Section 24 gives effect to that requirement by making judicial determination a precondition to examination of the material. While the initial warrant application may proceed ex parte,that reflects the long-standing necessity in criminal investigations to prevent the destruction, concealment or interference with evidence. The subsequent High Court process provides the affected party with a full opportunity to assert privilege before any review of the material can occur. Accordingly, the Bill achieves an appropriate balance between investigative necessity and the protections guaranteed by Article 10.

Section 25 further reinforces those safeguards by providing a suspensive period during which the parties may seek agreement on the scope of any potentially privileged material prior to judicial determination. Having regard to those protections, I do not consider the proposed amendment to be required.

Lynn Ruane (Independent)
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This is for a practical understanding. The screening process only begins after search warrants have been issued. If a screening is done on whether something falls within the realm of journalistic privilege, who, at whatever level of An Garda Síochána, actually carries out the screening process? This is unlike a solicitor with disclosure in court and what can or cannot be considered. Several gardaí could raid a home or use a warrant to remove someone's devices and those gardaí will have access to everything that exists, and they will have to go through it line by line and page by page to determine what is and is not relevant. All of a sudden, a group of people has access to highly privileged information that has nothing to do with the scope intended under the warrant. They are then deliberating on that. This is people's lives and all the data they have gathered over the years, including every time somebody has contacted them about something. There could be personal information about people and things unrelated to a crime. Who exactly is sitting down and screening whether this is to be considered in the context of journalistic privilege? Who exactly has sight of all this and how do they make that determination? What do they do with all that information that has nothing to do with the intended use of the warrant?

Michael McDowell (Independent)
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I first want to remind myself and put on the record that the Emmett Corcoran case to which the Minister referred was one in which I was personally involved as Mr. Corcoran's counsel. I respect the rules of my profession that I am not supposed to comment on cases in which I appeared. Nothing I say now is supposed to compromise in any sense that perfectly sensible rule.

I have a few questions for the Minister. As I understand it, the particulars of the Corcoran case, as outlined to the House by the Minister, appear to be correct. However, there is a slightly wider issue, and I ask the Minister to consider it. Let us suppose the information subject to journalistic privilege is not on a phone. Let us take that case and suppose it is a notebook, a file or something like that. Let us also suppose for a moment that we are dealing with the search of a person or of a vehicle where a member of An Garda Síochána stops a car that belongs to a journalist in which the garda believes documents that could be evidence related to a criminal offence are located. Let us suppose a search takes place under Part 2 of the Act, which does not deal with searches of premises under warrant but with searches carried out of persons and vehicles done without warrant under, say, section 10. That section provides for circumstances in which a member of An Garda Síochána is in a public place or any other place to which power of entry by law is implicitly or explicitly provided, and has reasonable grounds to believe that an offence in Schedule 1 has been, or is about to be, committed. Let us take it that he has reasonable grounds to believe an offence has been committed. The garda:

May require a person to stop a vehicle for the purposes of enabling the member to ascertain whether ... any person in ... the vehicle has committed, is committing or is about to commit [an] offence, or evidence relating to the commission or intended commission of the offence by any person is in or on the vehicle or on any person [occupying] it.

Let us suppose we are dealing with material here like a journalist's notebook or documents given to an investigative journalist relating to the commission of an offence, or which could be so related. Let us suppose a garda suspects that such documentation is in a car, stops the car and finds the file on the back seat or passenger seat of the car. I would like the Minister to explain to me if the journalist can tell the garda that they may not seize a document in his or her possession because it contains material that is the subject of qualified journalistic privilege. The Minister is correct. The jurisprudence of the Irish courts is that journalistic privilege, however defined, is not as absolute as the kind of privilege I have, as a Member speaking in this House, or a witness has in a court case.What happens then? Part 3 deals with searches of premises under warrant issued by a district judge. Suppose we are dealing with the deployment of a member of An Garda Síochána's powers under Part 2. What happens then to the material that is taken from the journalist's possession, effectively, because it is evidence in the eyes of a garda which relates to the commission of an offence? Unlike electronically stored material, there probably will not be a code encrypting the information temporarily from third-party observation. Is the journalist in those circumstances entitled to refuse to hand the garda the file? One the garda reads it, he cannot unknow what he has seen. If a journalist has notes saying that such-and-such an offence was committed by such-and-such a person, of whatever kind, a garda who opens the file and reads it is not in the same position as somebody staring at a phone in which this material may or may not be there and in respect of which a claim of privilege is made. He is looking at actual documents which are the subject of the same kind of journalistic privilege as would be the case for those stored on an electronic device. He is staring at it in written form in front of him and does not have to take any further step, once he opens the file, to know and to invade the journalist's privilege. Are we dealing with such a scenario adequately or at all?

I agree with the Minister that the two members of the Supreme Court in the Emmett Corcoran case said that as a matter of urgency the law should be changed to deal with the protection of invasion of journalistic privilege under warrant, and that section 10 needs reform in that respect. I fully accept that is a fair summation of the recommendations made by the members of the court. However, we are also dealing with searches unauthorised by warrant, say, of a car in which an member of An Garda Síochána believes there is evidence of the commission of an offence of some kind. How does the journalist driver resist handing over his material to the Garda? I do believe that a member of An Garda Síochána did in fact deploy search powers under Part 2 in respect of a car where he thought that there was documentary evidence of the commission of an offence, be it photographs, confessional material, inculpatory material, or statements by somebody who was a witnesses to a crime which indicates somebody's particular involvement in it. That situation is worthy of protection under the ECHR jurisprudence, in like manner to material stored on a journalist's phone, which requires further interference to access it other than simply using one's eyes.

Section 23 deals with treatment of materials seized under search warrant and section 24 deals with privilege. Section 24(1), for instance, provides:

This subsection applies where— (a) material has been the subject of a privilege screening analysis or an examination (including a digital forensic examination),

(b) it is considered that the material concerned may be privileged material, and

(c) the authorised member wishes to have access to the material on the grounds that he or she considers that the material is evidence of or relating to the commission of an offence.

That kind of scenario is dealt with under Parts 3 and 4. The particular scenario that I am putting forward, however, is in respect of material which is privileged, like a journalist's notebook. This seems to have no protection at all under the provisions of this Bill. A garda can in good faith say they believe that so-and-so - a crime correspondent - has just had a meeting with a baddie, and that they are going to search his car and find out if there are any written documents in his possession or evidence of the commission of the indictable offence by the baddie. I wonder what the law would be in such circumstances. Would it be lawful for a garda to deploy his or her power of search of a vehicle to obtain sight of the journalist's notebook in a way which invades a journalist's protected status? In the alternative scenario dealt with in the Emmett Corcoran case, the material would be available to the Garda after opening electronically a phone, computer or other device in the possession of a journalist in respect of whose premises a warrant had issued. I would like the Minister to deal with this issue. Are we dealing satisfactorily with the deployment of search of individuals and vehicles belonging to individuals in a manner which protects journalistic privilege to the same extent as would be required, if this legislation is passed, in respect of material which is stored electronically and which is not immediately visible on a search to members of An Garda Síochána?

Sarah O'Reilly (Aontú)
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I want to speak to amendment No. 31, which the Minister said was not necessary. The amendment seeks to introduce an inter partes hearing where a search warrant is being sought in relation to journalistic material or material capable of identifying a confidential source. In plain language, this means that where the State wishes to search a journalist's home, workplace, phone or files, the journalist or media company employing them should, wherever possible, have the opportunity to be represented before the warrant is granted. At present, the Bill largely maintains an ex parte process where only one side is before the court. The concern with that approach is obvious. A judge may hear extensive arguments in favour of disclosure without hearing any argument at all from the other side. The Minister described that earlier. The Northern Irish Fine Point Films case dealt directly with this issue. In that case, the court made clear that inter partes hearings are an important safeguard in protecting journalistic privilege under Article 10 of the European Convention on Human Rights.The amendment also recognises that there may be genuinely exceptional cases where an ex partehearing is necessary, but in those circumstances it requires the applicant to fully inform the court of the constitutional protections attaching to freedom of expression and freedom of the press. This amendment would strengthen the legitimacy and constitutionality of Garda powers, and would also bring Irish practice closer to best international standards in protecting journalistic freedom.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank the three Senators for their contribution. I will deal with the issues they raised in order.

Senator Ruane inquired about journalistic screening and how this will operate. It is worth pointing out how, in practical terms, this is going to arise. If a garda wants to search the premises of a well-known journalist under the new legislation, he or she will have to notify the District Court judge in advance that the premises is that of a journalist and the person he or she is seeking a search warrant for is a journalist. That will affect the nature of the order that is made by the District Court judge. It is similar when a garda goes to effect the search warrant. We live in a society where we are dependent upon people asserting their rights. If a garda goes into the premises of a well-known journalist and says they have a search warrant, that person is not mute or incapable of stating the garda cannot search their computer because it is protected by journalistic privilege. In practical terms, that is how that is going to operate. The journalist will assert he has an entitlement to journalistic privilege over the computer or notebook the garda seeks to search. Once that happens, there is a statutory procedure in place that will enable the determination of the issue by a High Court judge, who will ultimately probably have to look at the documentation. That is how it will happen in practice.

In terms of the journalistic screening to which Senator Ruane referred, the definition section of the Bill contains a definition of privilege screening. It states:

in relation to material other than material referred to in paragraph (b), means a review of the material for the purpose of ascertaining whether it contains privileged material, and [...] in relation to data contained in, or accessible from, an electronic device or information system, means a review of the data for the purpose of ascertaining whether the data contains privileged material ...

If we move forward to section 19 of the legislation, we see that section 19(1) sets out the procedure in terms of a search of electronic device or information system under a search warrant. It provides that:

a search warrant may be expressed, and operate, to authorise the authorised member, in addition to exercising any power specified in sections 18 or 20, to do such of the following as the issuing judge considers necessary and proportionate having regard to the information provided to him or her by the applicant under section 17 ...

One of the things a judge can do is permit the authorised member seeking the warrant "to conduct a privilege screening of the data (whether captured or not) contained in or accessible from an electronic device or information system ... found at the place of search". The purpose of a privilege screening is in circumstances where the journalist is not asserting there is information. In fact, it generally probably arises in circumstances where the identity of a journalist is not known, or the fact that the person a warrant is being served on is a journalist is not known. If the court believes there should be a privilege screening, there will be an assessment to see if there is anything that could come within the parameters of the protection of privilege. The alternative is that we completely balance the legislation against the interests of the investigation of crime and say that if a garda arrives with a search warrant, a person can say there is journalistic privilege involved and the garda cannot search it. That cannot be the appropriate mechanism to deal with it.

Senator McDowell raised the issue of section 10, which is the power of An Garda Síochána when its members are in a public place and have reasonable grounds to suspect an offence under Schedule 1 has been, is being, or is about to be committed. If we look at what is contained within Schedule 1, we see that the types of offences covered are egregiously serious offences, such as murder, manslaughter, and a whole series of others which are set out.

Senator McDowell went on to section 10(2), which states:

Where this section applies, the member concerned may require a person to stop a vehicle for the purposes of enabling the member to ascertain whether [...] any person in or accompanying the vehicle has committed or is about to commit the offence [That is a reasonable power to give An Garda Síochána, particularly when we look at the schedule of offences set out in Schedule 1] or ... evidence relating to the commission or intended commission of the offence by any person .. in or on the vehicle or on any person in or accompanying it.

When we look at the evidence relevant to the commission of the offence which is about to be committed, it would be stretching credulity to say that a journalist’s notebook in the back seat of the car in some way could be relevant to the commission of the offence. Although I listened to all Senators carefully, I am not as concerned as Senator McDowell is about that. We have to provide powers to An Garda Síochána to conduct searches when it appears to the Garda that a very serious offence is about to be committed. If we look at Schedule 1, we can see it includes murder, manslaughter, firearms offences and other very serious offences, such as child trafficking, pornography and smuggling of persons. There is a whole series of offences, with 16 of them set out there.

Senator O'Reilly referred to the very interesting decision of the Fine Point Films case. That was the decision involving two journalists, Barry McCaffrey and Trevor Birney, who were both arrested in 2018. They were preparing a documentary in respect of the murders in Loughinisland and allegations of RUC collusion with loyalist paramilitaries. The Northern Irish decision in that case was grounded in the statutory framework of the 1989 legislation, which expressly required an inter partes hearing when search warrants were sought against journalists. In 2023, the Irish Supreme Court endorsed the Fine Point Films case as relevant in Irish law. However, it did not definitively determine that Article 10 requires an inter partes hearing in every case, as opposed to an ex parte process accompanied by appropriate safeguards and judicial scrutiny. It does not follow that Article 10 itself requires a pre-seizure inter partes hearing in all circumstances, nor does it follow that it would be applicable in all jurisdictions. Rather, the essential requirement is that there be a meaningful opportunity for independent judicial scrutiny before privileged material is examined or used.

While I am on my feet, as they say, I should have mentioned amendment No. 33 in my opening comments to this group of amendments. I will give Senators my views on amendment No. 33. I am not agreeable to accepting it because I do not think it would operate coherently within the Bill. A determination under section 24 can only arise after material has been seized or captured pursuant to a search warrant and where, following privilege screening or examination, it is considered that the material may be privileged. Section 24 is therefore a post-seizure High Court determination mechanism for material identified as being potentially privileged. Requiring at the warrant application stage under section 18 that a determination of privilege under section 24 has been made would be procedurally impossible, as no material will yet have been seized or examined and, therefore, no section 24 process could yet have been triggered. The Bill instead addresses privilege concerns at the application stage, which require gardaí to notify the District Court of known privilege risks, allowing the judge to impose appropriate limitations, including privilege screening prior to further examination in cases where no such risk was identified at the initial stage, and potentially privileged material is subsequently identified. The material may not be accessed until the section 24 High Court process is completed. For that reason I am not persuaded that the amendment is necessary.

There is a very careful statutory architecture put in place here which first, and importantly, puts into Irish written law statutory protections for journalists, lawyers and others where a privilege may arise.It obviously has to be balanced weighing, on the one hand, the interests of An Garda Síochána in investigating suspected offences and, on the other hand, respecting journalistic privilege, which as Senator McDowell said, is not absolute, as well as other forms of privilege.

The procedure, as set out here, will be very effective because ultimately we will have a judge-supervised process. From the moment a guard appears in the District Court seeking a search warrant on an ex partebasis, the court will be aware if it is a journalist or a lawyer or if there may be other privilege attaching to it. If somebody subsequently says, "Listen, you might not know me but actually I am a journalist" then that person has a statutory mechanism to challenge the Garda search of the material and ultimately that can be appraised by the High Court. What I cannot allow to happen is people simply stating - in order to avoid a Garda investigation - that there is journalistic material on that, it is privileged and you cannot look at it, and us having to go, okay, that is the end of it.

Lynn Ruane (Independent)
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I will remap in steps what has been said to understand the intent. I now understand that there is one scenario where there is awareness that there could be journalistic privilege and that is given as part of the request for a warrant. When a warrant request is given and the judge decides that it is necessary and proportionate for there to be a privilege screening, who conducts the screening?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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The guards.

Lynn Ruane (Independent)
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The guards do the screening. That means the guards have access to lots of privileged information although they might only need-----

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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We do not know at that stage that it is privileged. Nobody has asserted the privilege of it.

Lynn Ruane (Independent)
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Yes but the journalist has, to a degree. My point is there is other journalistic information within that, which will not be relevant to what the warrant was for, that people will still set eyes upon. It is more just stating the fact of it rather than questioning it right now.

I now understand that there is another instance where the guards have a warrant but are not aware that there is potential journalistic privilege and at that stage-----

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Somebody comes forward.

Lynn Ruane (Independent)
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-----they will cease. Will the guards walk away once somebody says that?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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No. The guards are aware, if they are searching a journalist's house, they have to notify the district judge. If they get a search warrant they have no idea that there may be any journalistic privilege involved and the person who is searched says, "Hold on, I am a journalist and I assert journalistic privilege over this." If a person does that then there will be a procedure exercise, for the purpose of the court, looking at it.

Lynn Ruane (Independent)
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The guards will not be required to return to the court for a warrant like the one you would get if you applied for a warrant under the awareness of journalistic privilege. Everything can still be taken and it will go through the process even though the judge has not decided whether it is proportionate or necessary.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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The person is now asserting for the first time. A guard may not know every journalist in the country.

Lynn Ruane (Independent)
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That is fair, yes.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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An individual could just assert that there is journalistic privilege here. If the person does that for the first time then there is a mechanism to assess that under the legislation.

Lynn Ruane (Independent)
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Will the guards assess it like they would with screening or will it go back to the judge?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I suggest that the Senator looks at the provisions contained in section 24. The ultimate determiner, or the person who will assess whether or not material contains journalistic privilege, will be the High Court. That is provided for. If somebody makes a valid claim that this is journalistic material, it cannot be searched. There is a statutory procedure for that to be assessed by the High Court.

Lynn Ruane (Independent)
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I struggle to understand this because, in one sense, we are saying the guards will assess the material and then that the High Court will decide on that material.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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There is a screening and that is the ultimate hearing. There is a privilege screening that can apply.

Lynn Ruane (Independent)
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Am I correct to think that in the case where a guard is not aware and conducts a search and where a person asserts his or her journalistic privilege at that stage, then the Garda, even without the appropriate warrant associated with journalistic privilege, is required to do the screening on the mere mention that this is journalistic privilege?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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The warrant remains. There is only one warrant. In terms of the procedures set out here, a warrant is being applied for but what is contained within the legislation is a statutory mechanism to deal with an instance where the guards suspect that there may be privilege or where somebody, subsequently, asserts that there is privilege.

Lynn Ruane (Independent)
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I thank the Acting Chairperson for allowing a back-and-forth discussion; it is helpful. In the instance where a guard goes to a District Court to request a warrant then, within this legislation, as part of that warrant request, if the guard is concerned that it is a journalist or someone else who has privilege, then the guard lets the judge know.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Yes.

Lynn Ruane (Independent)
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Is the Minister telling me that the warrant that a guard will receive from that judge will be the exact same warrant, with the exact same criteria and powers as a normal search warrant if the guard did not realise it was a journalist? What is the point in the judge setting out the parameters of the search warrant and he or she needing to know if there is already an automatic assertion of journalistic privilege, which then would have to go through a screening because somebody has said he or she has journalistic privilege? What is the point of the judge? Does he or she set parameters for how that material is handled? Why would it not go back to the judge? Is it the judge who would decide, where the person then asserts that he or she has privileged information? Why would that not go back to the judge for that particular type of search warrant that encompasses journalistic privilege? I do not understand the point of the judge if a person can simply assert that there is journalistic privilege.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I suggest that the Senator looks at Part 3, which deals with the search of premises. Section 16 deals with the definitions.

Section 17 deals with an application for a search warrant to the District Court and sets out the offences specified in respect of it.

Section 18 then deals with the issue of a search warrant. Section 18(1) states: "A judge of the District Court ... may, on an application, issue a search warrant ... if satisfied by information provided by ... the application that—

(a) there are reasonable grounds for suspecting ... and

(b) the issuing of the search warrant is necessary ...

They are the general provisions.

Section 19 then deals with the search of electronic device or information system under a search warrant. That section is specifically included because of another Supreme Court Decision, called Quirke, where Mr. Justice Charleton said that an electronic or computer system, a phone or a computer is a separate space for which you require a separate search warrant. At present we do not have that. Section 19 deals with that effect.

Section 20 provides that the "Search warrant may authorise examination of material subject to section 2(2)(b) privilege in certain circumstances". We know what section 2(2)(b) privilege is because it is already defined. I suppose that allows for a warrant to examine material where it is necessary for the purpose of protecting the life or personal safety of people. If somebody is sort of saying there is journalistic privilege, then this section gets around that if there are circumstances where the life or safety of people is threatened. It is an exceptional provision but I think it is necessary and it is not one, I would have thought, that is regularly going to be used.

Section 21 deals with the right to be informed of search pursuant to the search warrant. Obviously when the guards go to the house they are obliged to tell the person that they have an authorised warrant to search the premises.

Section 22 deals with the exercise of powers under a search warrant and details what it is permitted to do in terms of exercising the powers under the search warrant.

Section 23 deals with the treatment of material seized under a search warrant. Section 23(1) states "An authorised member who ... seizes material, shall ensure that following its removal", the material is recorded and stored appropriately.

Section 24 deals with the issue as the determination as to privilege. Section 24(1) states:

This subsection applies where— (a) material has been the subject of a privilege screening analysis or an examination ...

(b) it is considered that the material concerned may be privileged material, and

(c) the authorised member wishes to have access to the material on the grounds that he or she considers that the material is evidence of or relating to the commission of an offence.

It sets out in section 24 what happens in terms of the determination as to privilege. There can also be, as provided for in section 25, agreement between the parties. This is where gardaí and the person being searched agree that one part is privileged, while the other sections are not, and that they are the ones dealing with search privilege. I should have referred the Senator earlier to section 19(1)(d), on the search of an electronic device, which includes a is specific reference to conducting "a privilege screening of the data (whether captured or not) contained in or accessible from an electronic device or information system ... found at the place of search".

At the beginning of section 19, it states:

a search warrant may be expressed, and operate, to authorise the authorised member [the garda], in addition to exercising any power specified in sections 18or 20, to do such of the following as the issuing judge considers necessary and proportionate having regard to the information provided to him or her by the applicant under section 17

Section 17 also provides a requirement in terms of identifying where there may be information which is privileged. That is correct. If Senator McDowell reads section 17, he will see "application for a search warrant" and in section 17(5) it states:

Where an applicant [the garda] suspects that privileged material may be present at the proposed place of search, or contained in, or accessible from, any electronic device or information system that may be present at that place, his or her application shall [meaning it is a mandatory requirement] include such information as is known to him or her relating to— (a) the nature of the privileged material concerned, and

(b) any other matter relating to the privileged material that the applicant considers relevant to the issuing of the search warrant.

There is, therefore, a procedure set out in Part 3 in respect of a search warrant. Obviously, a search warrant is a warrant. The same warrant is issued to search, say, my house or the house of an editor of The Irish Times. It is the same warrant but the circumstances will be different and the provisions will be different. The order of the District Court may be different because in a certain instance there may be journalistic privilege and the court may set out in those circumstances what is or is not appropriate to be done in terms of the ultimate determination of it.

We are dependent to a large extent on people asserting their rights. If somebody knows they are going to be the subject of a search warrant, their premises is being searched and they have been informed about it, they have to assert their rights. If they assert their rights, there is a mechanism here for their assertion to be determined.

Similarly, it puts a greater obligation on An Garda Síochána. There was a criticism of the gardaí involved in the Corcoran case. If a garda knows or suspects they are searching the house of a solicitor, a barrister or a journalist, they suspect that there is going to be privileged material there. Under section 17, as I just showed the Senator, there is now a statutory obligation on a garda to tell the District Court that the warrant is for the purpose of, for example, searching a solicitor's house who the garda thinks is involved in the commission of criminal offences and that, because it is a solicitor's house, there may be privileged material there, and the garda wants to search the solicitor's computer, seize their phone on which there is probably privileged material and therefore the garda wants to inform the court about it. There is a mechanism put in place to determine that. This is not a good defence of it but, obviously, it is far better than what is contained in section 10 at present. As regards the point I just made, when we look at section 10 there is no statutory duty imposed upon the Garda, whereas now there is a statutory mechanism put in place that recognises and allows for the determination of claims of privilege.

Michael McDowell (Independent)
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The Minister said that the offences in the Schedule are all serious offences, and many of them are, but if he looks at paragraph 14 of the Schedule of offences he will see it states that any "offence under section 4 ... of the Criminal Justice (Theft and Fraud Offences) Act 2001" is an offence for the purposes of the Act. When I look at section 4 of the 2001 Act, I discover that any offence of theft is covered by the Schedule. It is not all at the level of murder or anything else. That is the first point I want to make.

Second, it is all very well to provide, for journalists' places of business, places of residence or whatever, that a search warrant cannot be applied for without incurring the obligation to inform the District Court, at the time the warrant is applied for, that there is a potential privilege issue. That is a necessary protection but I go back to the point I made to the Minister on instances where there is no search warrant required. Where there is a stop-and-search power deployed, there is no premises involved at all. The whole warrant procedure and the obligations, which are rightly being provided for in this legislation, simply have no application. What happens then? If a member of An Garda Síochána stops a journalist and seizes his notebook in his car, what happens then? No warrant is involved. No obligation to tell any District Court judge anything is activated by this necessary legislation in respect of search warrants. However, we are now saying that any garda can stop any car in which he believes there is any evidence of the commission of a theft and he can seize anything in that car without any protection for journalistic privilege of any kind whatsoever.

This is not pedantic or theoretical. If a member of An Garda Síochána has a choice between stopping a journalist's car and finding material in it which is evidential of the crime of theft or, alternatively, waiting until the journalist gets home and applying to a District Court judge, with an elaborate protection procedure for the journalist's recognised rights of qualified privilege, why would the garda not stop his or her car? Why would they not do that give that this legislation allows them to do that?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Journalistic privilege still exists. We have got into this habit of-----

Michael McDowell (Independent)
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I fully accept that the privilege still exists but what is the consequence if the file can be read by a garda who, bona fide, believes the file is there and is evidence relating to the commission of an offence? There is no protection at all for the journalist in those circumstances. The garda has actually taken the file out of the car, read it, shut it and put it back in the car and knows precisely what is in it. The garda has invaded the journalist's privilege successfully and, because no warrant was involved, he now knows what he could not have achieved if he had waited for that file to get back to the journalist's house.

If we are going to protect journalists in the circumstances referred to by the Supreme Court in the Emmett Corcoran case, why are we not going to say that a member of An Garda Síochána shall not deploy the powers under section 10 of a stop and search with a view to getting or seeing material which would be privileged if it were the subject of a search warrant?The Minister has not dealt with that issue. Under the Schedule, we are dealing with any offence of theft of any kind whatsoever. That is not something that is going to bring down the State or which amounts to murder, manslaughter or an offence under the Offences Against the State Act. Any offence of theft is covered by this. If I believe that a journalist has any material in his possession which, if I see it, will enable me to effectively breach his or her privilege, and I deploy my powers under sections 9 or 10 of this Bill of stop and search, there is no protection at all for the journalist to say, "Sorry, you cannot look at the notebook in the car". Worse still, there is nothing there to say that a garda who decides to do that is acting unlawfully. There is nothing there to effectively protect the journalist who is stopped on the street or is in a car that is stopped on the street, whether as the driver or the passenger, and who has documentary material in his or her possession, having it read by the Garda on a deliberate basis. There is nothing there to prevent that situation.

I fully understand that the Minister is meeting the Emmett Corcoran decision in the Supreme Court, and that he rightly says members of the Supreme Court said this should be urgently addressed, but what about the point I am making? The Minister referred to the fact that a defence lawyer leaving court could resist his brief being grabbed by a member of An Garda Síochána with a view to just nosing through it on the basis that there could be evidence of an offence committed in it. I fully understand that but a journalist is given no right to resist a search of his or her documents in a stop-and-search situation as envisaged by section 10. It does not appear there is any law in Ireland that says the fruits of such a search, if conducted lawfully, cannot be used to mount or pursue an investigation such as there is in the United States. I am not suggesting we should have exclusionary rules such as those the United States has, but I do think the Minister is not facing up to the searches of journalists, or of documents that are in their possession or power, which are not the subject of a prior warrant application to a District Court judge. We should cover that situation.

I am mindful of one other thing. There is a whole crowd of yahoos going around now with their cameras up claiming to be journalists. For some of them, if it was not so ridiculous it would be absurd and perhaps harmful. There are people posting stuff on social media and claiming to be a journalist whose function is to go around harassing people by putting a phone camera in their faces. They then claim they are journalists. I fully appreciate that the claim to be a journalist is a difficult one. Maybe, in the context of a warrant for a search being applied for, a court would say that this is not a journalist at all but a local gouger wandering around with a camera phone in his pocket, and that it is not what the European Convention on Human Rights is concerned with at all.

However, I ask the Minister to deal with the question regarding what protection a journalist has, who might have their papers, notebooks and things like that in his or her car as they drive in public. What effective protection have they in a stop-and-search situation, when sections 9 and 10 are so open to their use by gardaí to look at particular materials and invade the journalist's journalistic privilege? If a garda can look at a journalist's papers on foot of a power of search not requiring a warrant of any kind, it will happen. As sure as night follows day, when confronted with the difficulties of getting at such material by means of a search warrant, it would be so easy to just stop the journalist on the street and see if they can get that material from them under a power of search that is not the subject matter of a warrant, as arose in the Emmett Corcoran case.

Joe Flaherty (Fianna Fail)
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As we discuss privilege and the pros and cons on both sides, I am very taken by the debate. I think there are adequate safeguards there to protect it but I am reminded of the late Vincent Gill, a notorious journalist in Longford provincial papers in the 1950s, who was probably one of Senator McDowell's "yahoos". He was also an alcoholic who frequently had run-ins with An Garda Síochána. They got him barred from Granard one time and he decided to just publish a page of black ink that said "Granard at night". He had another swipe back at the Garda when he was particularly aggrieved by a local sergeant who was promoted to inspector. Mr. Gill published details of his promotion but the headline was "Town Improvements". It would be interesting to see how the Garda would use its powers if Vincent Gill was still here.

On a more serious note, the Bill does seek to consolidate modernised policing powers, specifically in relation to search warrants, stop-and-search procedures and the treatment of suspects in custody. It is certainly a response to many of the supports and policing powers long sought by serving members of An Garda Síochána and the general public.

If Senators will indulge me, I will make some points that will speak to all amendments to and sections of the Bill. Before I say what I have to say, I will preface it by saying that I heartily welcome the recent appointment of Justin Kelly as Garda Commissioner. I passionately believe he is the right man for the job but I worry he has inherited a disillusioned, frustrated and far from motivated police force. I will elaborate on the point later but it is important. I understand there is a very clear divide between the Minister's office and his capacity and the management of An Garda Síochána, which is ultimately the responsibility of the Garda Commissioner, but we are seeing a drip-feeding of court cases in regard to personnel issues and mismanagement within An Garda Síochána. That is very concerning and disconcerting.

I would welcome if the Minister could tell us whether he is aware of all outstanding disciplinary issues within the Garda, and of all civil court cases pertaining to HR issues within the Garda, and also any-----

Shane Curley (Fianna Fail)
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I am not sure it is 100% relevant to the amendment.

Joe Flaherty (Fianna Fail)
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It is relevant to the amendment and also-----

Shane Curley (Fianna Fail)
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On journalistic privilege.

Joe Flaherty (Fianna Fail)
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I dealt with that at the outset and I am dealing with this issue now. It is relevant to all sections of the Bill. The recent Limerick court cases involving serving members of the force, which led to their unilateral acquittal, cast doubts on the decision-making of senior management at that time, as did the famed Athlone case, where a serving garda loaned a bicycle to an elderly man during the Covid era.These were not isolated cases and there are several instances of good rank-and-file gardaí being ostracised through the machinations of a managerial style that has no place in modern policing. There is no Garda station where we will not find rank-and-file members who are frustrated and disillusioned about how they have been treated, managed, sometimes sidelined and, at other times, humiliated. There has been a drip feed of court cases. One that is particularly relevant occurred last week at Longford Circuit Court where Edward 'Blondie' Stokes was jailed for 15 months after pleading guilty to a charge of endangerment, production of a slash hook, criminal damage-----

Sharon Keogan (Independent)
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On a point of order-----

Shane Curley (Fianna Fail)
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Naming people in particular court cases-----

Joe Flaherty (Fianna Fail)
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The court case has been dealt with and is a matter of public record.

Shane Curley (Fianna Fail)
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It is just not advisable to name people who cannot defend themselves.

Joe Flaherty (Fianna Fail)
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I am well aware of that but it is a matter of public record.

Shane Curley (Fianna Fail)
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First, I am not sure it is 100% relevant to journalistic privilege within the confines of Garda powers, and second, naming someone like that-----

Joe Flaherty (Fianna Fail)
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What I am speaking about is relevant to morale within An Garda Síochána and giving gardaí additional powers.

Shane Curley (Fianna Fail)
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I appreciate that.

Joe Flaherty (Fianna Fail)
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It involves my genuine concerns and those of many others, including many people within An Garda Síochána, about morale within the force.

Shane Curley (Fianna Fail)
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We have a point of order.

Sharon Keogan (Independent)
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On a point of order, this has nothing to do with the amendments we are discussing. We dealing with amendments Nos. 3, 30 and 31.

Shane Curley (Fianna Fail)
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We are loosening the boundaries of what is relevant to an amendment. Unless it has some relevance to journalistic privilege, can we deal with it later on a more relevant amendment? Is that fair enough?

Joe Flaherty (Fianna Fail)
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I will come back in at a later date.

Lynn Ruane (Independent)
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We have gone back and forth on this a few times. If a Garda makes an application for a search warrant and makes the judge aware that there is a risk to journalistic privilege as part of that search warrant and at that point, the judge decides to go ahead with the search warrant and the gardaí carry out the screening assessment. Having insight and understanding regarding An Garda Síochána's protection of data rights over the years and data leaks, it is very concerning that the assessment of privilege would happen at that level. There is also the question of what Garda rank it happens at. Is it at a certain rank? Will there be a designated office that decides to search that? I am just imagining for a moment that I am a journalist. I have my laptop taken and on that laptop, I have several files. One file is called "Confidential sources", another file is called "Whistleblowers" and another file is called something else. A Garda or an authorised person under this Bill assessing whether or not that is relevant material now has information on confidential sources for various different cases. They could have been confidential sources or a Garda whistleblower. Imagine if somebody came across that information. Confidential sources are confidential for a reason so even if there is a threshold set around what can be considered relevant, there is a risk with regard to the volume of data that could be seen by gardaí as part of that risk assessment and how that is a held and handled. If it is a USB key they have to plug that into their internal system to assess its relevance, what happens to that data? Do they have so many days to delete all that data? How do we know they delete all that data? Do they hold on to files and files that are unrelated? It is hard for me to understand. We want to ensure that there is legislation to protect that journalistic privilege where I understand there are grey areas and it is not absolute and all those conversations but what is really scary to me is the thought of gardaí just having access to files upon files upon files and going "Okay, they're under journalistic privilege" and then handing them back. They will still have seen them. There are people who might have divulged high levels of abuse or neglect and gardaí actually will have access to this. Whatever about protecting one confidential source, we are actually exposing many other confidential sources in the effort to do a screening access. I am still finding it hard to understand how that data is treated, handled, minded and protected during the screening process because we are going to expose many things to the eye of An Garda Síochána that have nothing to do with the warrant.

Definitions bring us back into what is a very wide sweep. Senator McDowell referred to the other stop-and-search powers. Regarding asserting journalistic privilege when a garda already has a search warrant, gardaí arrived at a community project a few weeks back and said they had a search warrant. Those in the community project had no idea why they were there. They asked why and whether they could come back because there were people there receiving confidential services from the project. The gardaí did not care about the anonymity of the people availing of an addiction service in that moment. These were people in very vulnerable positions. No crime had taken place on the site, no call had previously been made, and the gardaí just said they had the search warrant, this was what it said and they were coming in and taking the camera, and they wanted that camera because it might have picked up something somewhere else. They did not pay any heed to the fact that there were people in there receiving care. Without detailing what the process of screening is, the rank of Garda and how it is held, it is really concerning. What we are going to see is a huge amount of secrecy and silence where people become incredibly terrified to share any sort of information with a journalist, especially like when we look at the North, which has inter partes, as mentioned by Senator Sarah O'Reilly. We do not even allow for the journalist in question to be able to be in the court to make the case at that level and for the screening to happen then before the search warrant so for me screening is a serious issue. Even though the Minister is referencing all the other parts, I still have a scenario in my head involving a garda of whatever rank with a rake of information. Regardless of whether that is determined relevant or is under journalistic privilege, that Garda has still seen it, still has it and still has all those confidential sources. Whether the Garda can use them is another thing.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank Senators for their contributions. Senator McDowell referenced section 10, which is in Part 2 dealing with stop and search. Part 3 deals with search of a premises. Regarding the type of scenario that stop and search deals with, I am trying to give statutory powers and statutory limits to gardaí when they find themselves encountering the commission of an offence. The Senator referred specifically to section 10. It is about a power to search persons and vehicles for evidence of an offence. The section applies when a member of An Garda Síochána is in the public place or any other place authorised by law and has reasonable grounds to suspect that an offence has been, is being or is about to be committed. The Senator will be aware that when gardaí suspect a person is involved in the commission of a serious offence or there is an offence and they want to search their premises, they have to apply under Part 3. This arises when they are in a public place, there is a vehicle and there are persons in vehicles. It can arise in practical terms where an offence has been committed and the gardaí want to apprehend somebody who they think has been involved in the commission of the offence or the gardaí lawfully stop a car because they believe it is associated with the commission of an offence. Section 10(2) states that where this section applies, the member concerned may require a person to stop a vehicle for the purposes of enabling the member to ascertain whether any person in or accompanying the vehicle has committed, is committing or is about to commit the offence.Let us remember the offence is what is set out in Schedule 1. Senator McDowell is correct. There are a lot of serious offences but he is right that there is a theft offence there as well. I think it is appropriate that the Garda should have the power to require a person to stop a vehicle for the purpose of enabling it to ascertain whether the person in the vehicle, or somebody with them in the vehicle, has committed theft or is committing theft. That is a perfectly legitimate statutory provision the Oireachtas can absolutely stand over.

The section also provides for enabling them to ascertain whether "evidence relating to the commission or intended commission of the offence by any person is in or on the vehicle or on any person in or accompanying it." Again, this is seeking evidence in respect of the commission or intended commission of the offence. I always listen very carefully to Senator McDowell but it is very adventurous of him to suggest that this could be availed of by a garda to stop a car on the basis that there is an offence being committed, but in fact that garda wants to get the notebook in the back seat because it belongs to a journalist. That is not what this statutory provision is about. It is about gardaí stopping a vehicle because they believe somebody has committed an offence or is in the process of committing an offence and that the car has relevant evidence, whether it be a weapon or a stolen item. It is not for the purpose of gardaí stopping a journalist's car a number of days or weeks after an event and saying, "We believe you have information in respect of the commission of an offence that has been committed or is about to be committed and we are going to seize your notebook". Even if that fanciful scenario did arise, the journalist still has appropriate constitutional protections because the journalist, much the same way as Senator McDowell successfully brought the case on behalf of Emmett Corcoran, would be able to say that this is an abuse of the statutory procedure, and that journalistic privilege is a right recognised under the European Convention and under the Constitution, which deserves to be and has been recognised by our courts. If the highly unlikely scenario that Senator McDowell suggests arose, there is still constitutional protection there for the journalist. Any invocation of such powers by a member of An Garda Síochána would clearly be an abuse of the statutory scheme, since it is apparent from Part 3 of the statutory scheme that journalistic privilege is protected. It is not just journalistic privilege; all privilege is protected and can be determined. That is my response to Senator McDowell.

I will not go into detail in respect of what Senator Flaherty said. I will respond to him personally in due course because the issues he raised would take up too much time here. I will just say that morale in An Garda Síochána is very high at present and the Commissioner is doing an excellent job.

To Senator Ruane's point, privilege screening is not an examination of each of the documents. Privilege screening is the limited examination of captured material for the sole purpose of identifying potentially privileged material without permitting a general analysis of the data for evidential purposes. This process is typically authorised by a judge when privileged material is likely to exist. The review is strictly confined to identifying the presence of such material. Beyond this no further examination is permitted. It is not looking at the content of the material. We talk about journalistic privilege here all the time. Legal professional privilege is also a form of privilege we should be appraising and considering. If there is a warrant to search a solicitor's premises, or a solicitor's mobile phone or email, and you are able to look to see whether there is correspondence between the solicitor and his or her client, that is the type of screening that would be done. You would not read the letter but if it is apparent there are communications between the solicitor and his client, which are clearly or probably protected by legal professional privilege, that is the purpose of the screening process.

Again, I have to emphasise that we live in a society where people assert their rights. As was the case of Emmett Corcoran, the strong likelihood is that if the Garda seek to effect a search warrant on a person who claims that the material it is seizing has the benefit of journalistic privilege, then he or she will assert that and it will be asserted promptly before the court. This will then invoke section 24, which is the most important part in the determination of privilege because it sets out the very detailed procedure by which the High Court will determine claims to privilege. Just because a lawyer says, "That is legally privileged" or just because a person says, "I am a journalist and that is journalistic privilege" does not mean we all have to genuflect before it. There has to be an assessment of it and the way we assess it is that the High Court objectively looks at it. Obviously, it is taken into account whether somebody is a registered lawyer, for example, and has communications with the client. That clearly will get the benefit of legal professional privilege. Whether somebody is a journalist, a recognised journalist involved in investigative journalism or whatever type of journalism, is where it gets difficult in terms of defining what a journalist is because it can be very vague. People like those Senator McDowell was talking about would then seek to avail of it, but the courts know what journalistic privilege is when they see it and there is a mechanism here for the first time in statute to recognise that privilege.

Michael McDowell (Independent)
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I do not see anything fanciful at all about a member of An Garda Síochána, who knows there is evidence in a car relating to the commission of an offence, stopping and searching that car and looking at the evidence. I do not think there is anything fanciful about that. Section 4 the theft Act is so wide it could deal with somebody who stole from their employer or stole from their place of work. Evidence relating to that could consist of photocopies of documents in the possession of a journalist. I am not against the Minister's proposals. I am saying that we should look at what is available to a journalist by way of protection if a member of An Garda Síochána decides to invoke the stop and search powers, as opposed to going to a District Court judge and getting a warrant to stop and search the journalist or the journalist's car with a view to gaining access to evidence.

I will give an example. Let us suppose there is a non-digital camera sitting in the back of a car, or a photocopied document that is suspected by the Garda to be the kind of material that will give it the lead they need in an investigation, and it suspects it is most likely in the possession of a journalist who they have seen talking to somebody who knows something about a case. What protections are we putting in place for a journalist to say, "No. You cannot search the file in the back of my car or the notebook I keep as a journalist to see who I was speaking to in such and such a pub down the road". We are not doing that in this legislation but we are doing it in the case of a garda who thinks that the journalist's notebook is back at home in his or her house. In those circumstances, we are saying that a District Court judge has to be warned, all of the assessments and all the rest of it come into play, and the protections for the journalist come into play. Apart from saying that there is something "unlikely" about the scenario I am outlining, I am not hearing the Minister saying what the consequences would be.I do not regard it as in any way demonstrated in Irish law that a prosecution would be stopped because a garda had at some point, in order to give himself or herself a good indication of who the offender was, seized a journalist's papers. I do not see there being anything unlikely about that.

I fully support what the Minister is saying about electronic devices, the protections and the situation that arose in the Emmett Corcoran case. I fully understand that that needs to be addressed. I am making a different point. I am saying that we are introducing stop-and-search powers for any offence of theft of any kind whatsoever and there is no protection at all for journalists in that context. There is no protection whatever that corresponds to a search of a journalist's home, office or workplace. Why should the situation be dramatically different relating to a journalist's home or workplace, on the one hand, and, on the other, a journalist in a car on the public highway? Why should there be such a two-tiered approach to the protections available to journalists? That is the point I am making.

Mark Daly (Fianna Fail)
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Before proceeding, I remind Members from the Midlands-North-West constituency that all five MEPs representing the constituency will be in the Chamber from 2 p.m. to 4 p.m. tomorrow. I hope Members will be able to attend, especially in view of Ireland's upcoming Presidency of the European Union.

Mark Daly (Fianna Fail)
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Amendments Nos. 4, 5 and 54 are related. Amendment No. 5 forms a composite proposal with, and is consequential on, amendment No. 4, with amendment No. 54 also being consequential on amendment No. 4. The three amendments may be discussed together.

Michael McDowell (Independent)
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I move amendment No. 4:

In page 8, between lines 27 and 28, to insert the following: "Implementation guidelines

6. (1) The Minister shall make regulations governing the exercise of powers by members of An Garda Síochána in respect of the following matters and those regulations are referred to in this Act as "implementation guidelines":

(a) the use of covert human information sources, and

(b) the use of covert investigative activities involving the use of pretence or subterfuge with the purpose of facilitating other persons to commit or attempt to commit criminal offences.

(2) It shall be the duty of members of An Garda Síochána to comply with the provisions of implementation guidelines made under this section.

(3) The Minister shall consult with the Commissioner of An Garda Síochána and with the Policing and Community Safety Authority in relation to implementation guidelines which the Minister proposes to make or amend under this section.

(4) Before making regulations for implementation guidelines under this section the Minister shall publish the proposed regulations in draft form and should not make such regulations unless each House of the Oireachtas has passed a resolution approving the proposed regulations in such draft form.".

This amendment proposes to require the Minister for justice to make regulations, which will be referred to in the legislation as "implementation guidelines", for the exercise of powers by members of An Garda Síochána in respect of, first, the use of covert human information sources and, second, the use of covert investigative activities involving the use of pretence or subterfuge with the purpose of facilitating other persons to commit or attempt to commit criminal offences.The proposed amendment also provides that it would be the duty of members of An Garda Síochána to comply with the provisions of implementation guidelines that the Minister would make. Prior to making the regulations, the Minister would consult with the Commissioner of An Garda Síochána and with the Policing and Community Safety Authority on the implementation guidelines he proposes to make. The guidelines should be submitted to both Houses of the Oireachtas for approval.

Since we are dealing in this legislation with police powers, there is a significant case for the basis on which members of An Garda Síochána can use, for instance, covert human information sources and the use of covert investigative activities involving the use of pretence or subterfuge with the purpose of facilitating other persons to commit or attempt to commit criminal offences to be the subject of publicly understood guidelines by which members of An Garda Síochána would be bound to act. We are giving them significant powers in this legislation. We are doing it - as the Minister said earlier - in response to the Emmett Corcoran case, and other cases. When we look at what happens in the neighbouring jurisdiction in respect of members of their police forces acting covertly, real ethical problems do arise. I refer, for instance, to members of An Garda Síochána infiltrating protest groups and the like, pretending to be part of a movement and creating false alibis for themselves in terms of their identity and the like so that they can internally spy on a movement. I am not against that in every circumstance but there should be guidelines as to when and how it can be done and at what level it can be authorised in An Garda Síochána. For instance, let us take a current example. Let us suppose An Garda Síochána is concerned that the pro-Palestine, pro-Gaza movement in Ireland was being infiltrated by extremists. What steps is it entitled to take to infiltrate the movement with a view to effectively gather intelligence about what it is doing? How far can someone go in infiltration? At what point does it become unlawful to appear to be encouraging other persons to take steps which could give rise to a criminal prosecution? For instance, we know that there have been criminal proceedings in respect to people interfering with certain aeroplanes at Shannon Airport, but is it legitimate for members of An Garda Síochána to pretend to be involved in planning such escapades? If it is necessary, at what level in An Garda Síochána must there be authority for such steps to be taken? It has been uncovered in England that there were some pretty hair-raising activities by infiltrating members of their relevant police forces involving not merely befriending but actually engaging in sexual relations with some members of protest movements. We have no published code in Ireland on such matters. I do not want to rehearse matters that have got quite a deal of publicity, but the difference between being an agent provocateur on the one hand and a credible infiltrator on the other hand is very narrow. At the very least, if those tactics are regarded as necessary I would like to see that there was some ethical code as to how far people could and could not go in creating situations where other people are enabled to take steps which amount to offences.

What I am really suggesting here is that it is about time there is a publicly known code, which binds members of An Garda Síochána when using covert investigative techniques not to trespass over the line of entrapment on the one hand or to act as agent provocateurs on the other hand in a manner that breaches what most people would consider to be decent ethical standards of policing. That is the purpose of this amendment. It is a fairly straightforward purpose, but what worries me is that we have examples in the neighbouring jurisdiction of what can and cannot happen in the absence of clear guidelines that are understood and which are enforced at least within An Garda Síochána by a hierarchy of authority that is understood.

I remember one particular case where a member of An Garda Síochána was subject to discipline for failing to disclose his source in respect of informers. There did not appear to be at that time, although I believe there are protocols in existence, regulating how far you could go in guaranteeing immunity for persons who are involved in criminality in order to spy on other persons who are equally or more guilty. I refer to those kind of situations. It is with that in view that this amendment has been tendered. It is not demanding that all of these activities stop; it is simply demanding that there are ethical standards beyond which one cannot go, in using covert policing, of an agent provocateur, entrapment or encouragement. The public should be satisfied that members of An Garda Síochána may not cross the line without sanction if they breach what most people would consider decent investigative techniques.

I fully understand that the security of the State sometimes requires covert activity by our security forces and that they cannot all the time operate on the basis of utterly transparent engagement with those who are suspected of wrongdoing of a very serious kind.It also seems there is a very strong case for a code of conduct to be laid down by the Minister to ensure people who might not otherwise commit crimes do not find themselves being encouraged by members of An Garda Síochána to do so in order to obtain convictions or intelligence. That is what this amendment is intended to do.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank the Senator for tabling the amendment. I will not support it. The main reason I will not support it is the guidelines he asks that the legislation should implement should also be published and only approved if the Houses of the Oireachtas agree to them. We need to recognise that policing is a complicated and professional task. It requires expertise. There are many people out there, whether they want to threaten the security of the State, are organised criminals, drug dealers, who want to import weapons to Ireland or are involved in child sexual abuse and human trafficking. There are dangerous people out there and we need to make sure the public are protected from them. The people we use to protect us from them are An Garda Síochána; the only lawful entity in the State that can investigate the commission of criminal offences.

It is an essential part of Garda work that members have access to and use covert human information sources. If we try to restrict An Garda Síochána in gaining access to covert human information sources we are undermining the protection that all of us in this House want to have the people protected by. That also applies in respect of covert investigative activities.

It is the case, however, and I fully agree with the Senator McDowell, that there must be ethical standards operated by An Garda Síochána. However, ethical standards do not require regulations made by a Minister and then approved by politicians in both Houses of the Oireachtas. We have a very stringent oversight system for review of the behaviour of An Garda Síochána in terms of the Policing and Community Safety Authority, Fiosrú and I as Minister, as the Senator will know as well, having oversight over the activities and methods of An Garda Síochána.

The Bill seeks to codify the Garda powers of stop, search and seizure as well as search warrants, and the remaining Garda powers will be codified at a later stage. Legal issues in relation to covert human intelligence sources, or controlled deliveries, are addressed regularly in the courts. Operations that involve the use and conduct of a covert human intelligence source must be conducted in accordance with law and must be carried out in compliance with human rights obligations under the Constitution and the principles of the ECHR. The management and use of covert human intelligence sources is already governed within An Garda Síochána by detailed policy and operational procedures, which provide that operations involving such covert human intelligence sources must be conducted in accordance with law and in compliance with constitutional and ECHR obligations. The policy framework also provides for internal Garda oversight and external independent oversight. The admissibility of evidence obtained during covert operations is ultimately a matter for the courts, including in circumstances where issues relating to entrapment, proportionality or fair procedures are raised. Operational policies in this area must remain capable of being updated quickly in response to court judgments, operational learning and evolving criminal activity. For those reasons, it is not appropriate to create a new statutory, regulatory regime for such matters in this Bill. In fact, it would be damaging to the public interest and to the work being done by An Garda Síochána seeking to investigate and ensure those involved in serious criminality are prosecuted.

I will also speak briefly to amendment No. 5, which is in this group. This amendment is out of scope because it establishes an exclusionary rule of evidence tied to the proposed section 6 guidelines, which are not relevant to this legislation. Therefore I cannot support amendments Nos. 4 or 5.

Finally, in respect of amendment No. 54, I believe this amendment is also out of scope. The 2023 revised general scheme explicitly narrowed the scope of this legislation to address urgent specific gaps regarding stop and search, digital access and custody safeguards following Supreme Court rulings in Quirke and Corcoran, expanding the Long Title to include general governance guidelines goes beyond this expedited mandate and introduces requirements that do not align with the focused statutory fixes now being advanced.

I assure the Senator that when it comes to covert human information sources and activities that there are strict policies in place within An Garda Síochána as to how those sources and activities can operate. Any time they go before the courts, they are subject to the supervisory conduct of the courts. Any unethical behaviour or behaviour seen to be in breach of constitutional or convention rights will not be tolerated and as well as that, the Garda Commissioner, Fiosrú, the Policing and Community Safety Authority and I would not permit covert activities that were unethical or in breach of convention or constitutional rights.

However, we need to recognise that when it comes to investigating and trying to stop serious criminals, it is a difficult and tough business and sometimes it does require members of An Garda Síochána to engage in undercover work. Sometimes it does require them to send human resources into a dangerous situation to find out information about serious criminal activity. If I were mandated by legislation to draft and sign regulations that would set out the circumstances the Garda can use covert investigative activities and covert human information sources and if I were to come to the Seanad or the Dail to get approval for them, the Garda would come to a standstill in investigating serious crime. For that reason, I cannot accept the amendment.

Michael McDowell (Independent)
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I thank the Minister for his reply. I sympathise with a number of the points he has made. It does seem that some things should be declared off limits, publicly. The Minister said that the courts, rules of admissibility of evidence and the like are sufficient to deal with a lot of these matters. Up to a point, I agree with him. His answer presupposes that unethical behaviours will have their comeuppance through the judicial and courts systems. I am not quite clear in my own mind that is always the case. People can be compromised by unethical behaviour who are never charged with anything. If you want to get at Mr. Big you might get at Mr. Big's niece or nephew, get them into trouble and put them in the position that they fear being exposed to criminal prosecution, or to retribution by Mr. Big, in circumstances where they would not have ever put themselves in that position if they were left alone in the first place. It is not the case that every instance of covert policing or use of deception and the like, of an unethical kind, always ends up with the safeguard that evidence, which is the fruit of such behaviour, comes to light in the criminal justice system and the courts, the Minister, or a supervisory judge are in a position to know that has happened.I believe there is a strong case for minimum ethical standards to apply, so that a person who is no danger to anybody but would be a useful informant is not led into a situation by deception which exposes that person to retribution by criminal elements, on the one hand, or brings to their mind a fear of prosecution, on the other hand. To me, that is a basic proposition of decency and ethics which may never ever come to light at all, yet members of An Garda Síochána are not, as I understand it, really prevented from using such unethical tactics on the basis that the end justifies the means. There is not a public statement even of minimal standards of ethical behaviour involving recruitment of informants, management of informants, methods used to get people to be informants, and the extent of deceptions which can be employed.

I think of the woman in England who had an affair with an undercover police officer for many years and thought that she had a boyfriend. She discovered that she did not have a boyfriend, but a police spy pretending to be her boyfriend for a number of years. That would not necessarily come to a court case, but it is behaviour which is very unethical. The guidelines that I had in mind were not designed to stop the gardaí from being effective, but merely to state basic principles that anybody who wishes to deploy such methods should bear in mind, having regard to standards of decency and ethical behaviour, whether there is a likelihood that it will ever come to public notice.

Mark Daly (Fianna Fail)
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Amendments Nos. 6 to 13, inclusive, are related. Amendments Nos. 10 and 11 are physical alternatives to amendment No. 9. Amendments Nos. 6 to 13, inclusive, may be discussed together, by agreement. Is that agreed? Agreed.

Lynn Ruane (Independent)
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If I want to resubmit them at Report Stage, would I be better off speaking to them?

Mark Daly (Fianna Fail)
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If the Senator does not speak to them, they cannot be brought back in.

Lynn Ruane (Independent)
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I move amendment No. 6:

In page 9, to delete line 5.

Amendments Nos. 6, 7, 9, 12, and 13 relate to stop-and-search powers. Obviously, many of the exceptions referenced are hugely important to relevant articles, but not necessarily in terms of recodifying some very concerning stop-and-search powers within this legislation. This suite of amendments seeks to narrow the definition of what constitutes a relevant article under this Bill, which we believe is far too wide as drafted. Given how invasive, degrading and humiliating an experience it can be to be stopped and searched by gardaí, it is absolutely essential that there are sufficient guardrails and robust safeguards in place to prevent abuse of these powers. Under the proposed legislation, An Garda Síochána will be able to stop and search individuals where they have reasonable grounds to suspect that a person is in possession of a relevant article. This will become the foundational basis for An Garda Síochána to exercise stop-and-search powers and the circumstances under which a significant number of interactions between the public and the gardaí will take place.

At the moment, the vast majority of stop-and-searches by gardaí are undertaken under the Misuse of Drugs Act 1977. Under this Act, gardaí are empowered to stop and search someone in a public place or in a vehicle if they reasonably suspect that a person is in possession of a prohibited substance as an offence under section 3 of the Act. It has been demonstrated in Ireland that the courts are usually quite deferential to the legal thresholds for police searches set out by the Oireachtas, meaning that the gardaí currently have wide discretion to exercise their stop-and-search powers. Those who observe stop-and-searches rightly assume that the person subject to a stop-and-search has done something wrong, but research demonstrates that in the overwhelming majority of instances of stop-and-search, no criminal wrongdoing is detected. Subsequently, those subject to stop-and-search develop a highly negative view of the interaction, which feeds into the negative perceptions of policing in the community, undermining police and community relations.

Contact with the criminal justice system is shaped partially by behaviour, but also by visibility and enforcement. In particular, the experience of being stopped and searched by gardaí is effectively normalised. This is because people are more likely to be stopped indiscriminately by the gardaí if they are from a community that is overpoliced or where police-community relations are under strain than if they are from a far more affluent community where there is a greater sense of trust between the community and the police. It is not the case that working-class communities or minority communities are inherently more violent or more prone to criminal activity, yet they bear the brunt of the State's policing responses.

We should facilitate a discussion at another stage on the social determinants of crime, and the social, economic and environmental factors, which we know to be the most significant drivers of criminality, but we must also recognise the stigma that comes from being part of an under-served or under-represented community, and how this shapes interaction between the gardaí and the community. Research demonstrates that under-served and under-represented communities recognise frequent, routine contact with gardaí as part of everyday life in their areas, but it is not the case that the presence of An Garda Síochána in these communities has made them any safer, or even provided a feeling of safety for the community. Rather, it serves to undermine relations between the community and police, and erodes trust which effective policing relies on.

According to a recent report published by the Irish Penal Reform Trust, IPRT, called From Punishment to Prevention, place-based factors such as income inequality, labour market conditions, housing insecurity, social exclusion and weak community infrastructure contribute to higher levels of crime, victimisation and greater justice system contact, with more frequent and more intrusive policing. For many of the IPRT's research participants, being known in their local community meant being stopped repeatedly by gardaí while going about ordinary activities, even when no offence had been committed.

Victor Boyhan (Independent)
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It is now 9 o'clock.

Sorry, I am looking at a clock with a different time. The Senator has about a minute.

Lynn Ruane (Independent)
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I have lost my flow. Time is a construct. Very briefly, section 3 is most concerning to me. It is used and abused so much. You cannot take section 3 of the stop-and-search powers alone. Sections 2, 3, 15 and 23 of the drugs Act are obviously all inter-related, so when we mention them with regard to this Bill, it is hard not to take them as a suite of stop-and-search powers in relation to possession. I grew up in a community where we were stopped and searched daily, even as children. You began to run from the police even if you saw them just drive by, even though you had not done anything, as a form of resistance to being stopped and searched consistently and constantly, whether you were walking through a park or standing outside an estate. Apparently, if you are in a group of people in a community like mine, you are a gang. If you are a group of people in a community that is not overly policed, maybe you are just hitting a ball with a hurl or doing things as a group.All of a sudden, when people come into a community like mine and they profile others in a perfect way, a group becomes a gang. People standing around together is not a gang but they get stopped and searched all of the time under this power.

Victor Boyhan (Independent)
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As it is now 9 p.m., the debate must be adjourned in accordance with the order of the Seanad today.

Victor Boyhan (Independent)
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When is it proposed to sit again?

Robbie Gallagher (Fianna Fail)
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At 10.30 a.m. tomorrow.

Victor Boyhan (Independent)
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Is that agreed? Agreed.