Yavor Poptoshev v The Director of Public Prosecutions, The Commissioner of an Garda Síochána, Ireland and The Attorney General

• Jurisdiction: Ireland
• Judge: Mr. Justice Conleth Bradley
• Judgment Date: 11 December 2024
• Neutral Citation: [2024] IEHC 721
• Court: High Court
• Docket Number: Record No. 2024/155JR

Between/

Yavor Poptoshev

Applicant

and

The Director of Public Prosecutions, The Commissioner of An Garda Síochána, Ireland and The Attorney General

Respondents

[2024] IEHC 721

Record No. 2024/155JR

AN ARD-CHÚIRT

THE HIGH COURT

Constitutionality – Privilege against self-incrimination – Criminal Justice (Theft and Fraud Offences) Act 2001 – Applicant seeking declaratory relief that ss. 48(5)(b)(i), 49(1)(c) and 49(2) of the Criminal Justice (Theft and Fraud Offences) Act 2001 were unconstitutional – Whether ss. 48(5)(b)(i), 49(1)(c) and 49(2) of the Criminal Justice (Theft and Fraud Offences) Act 2001 amounted to a disproportionate interference with the applicant’s asserted right to the privilege against self-incrimination

Facts: Detective Garda Barton of the Garda National Economic Crime Bureau (GNECB), on 8th January 2024, as part of a garda investigation in relation to suspected alleged criminal offences, made an application to the District Court for a search warrant pursuant to s. 48(2) of the Criminal Justice (Theft and Fraud Offences) Act 2001 to search the home address of the applicant, Mr Poptoshev, at Apartment 7, Saint Raphaela’s Apartments, Saint Raphaela’s Road, Kilmacud Road Upper, Stillorgan, County Dublin. It was during the course of that search on 9th January 2024 that the Gardaí seized various items, including: a Google Pixel 4 mobile smartphone, a Google Pixel 6 mobile smartphone and an Asus laptop. The applicant confirmed that he owned those devices and that a password was required for each device. When asked by the Gardaí for the passwords, the applicant refused, which led to him being charged and prosecuted. The applicant applied to the High Court on 15th April 2024 for an order of prohibition in relation to three charge sheets regarding the three devices and declaratory relief that s. 48(5)(b)(i) (which conferred the power to require the applicant to provide the passwords), s. 49(1)(c) (which creates the offence of failing to comply with that requirement) and s. 49(2) (which provides for the power of arrest in such circumstances) of the 2001 Act are respectively invalid having regard to the provisions of the Constitution. The applicant contended that those statutory provisions amounted to a disproportionate interference with his asserted right to the privilege against self-incrimination.

Held by the Court that the privilege against self-incrimination was not engaged in this case; the devices were computers as envisaged in s. 48 of the 2001 Act and the passwords in relation to each of the three devices existed independent of the will of the applicant. The Court found that the devices came within the express parameters of the sworn information and search warrant issued in the case and comprised ‘computers’ as referred to in ss. 48 and 49 of the 2001 Act. The Court did not consider that the powers in ss. 48(5)(b)(i), 49(1)(c) and 49(2) of the 2001 Act are invalid, having regard to the Constitution, or that they amounted to a disproportionate interference with the applicant’s asserted right to the privilege against self-incrimination.

The Court refused the applicant’s application for the reliefs claimed by way of judicial review.

Application refused.

REDACTED

JUDGMENT of Mr. Justice Conleth Bradley delivered on the 11 ^th day of December 2024

INTRODUCTION

Preliminary

1 In this application for judicial review, Mr. Poptoshev (“the applicant”) seeks to challenge the provisions of section 48 of the Criminal Justice (Theft and Fraud Offences) Act 2001 (“the 2001 Act”), 1 which, in summary, allows a member of An Garda Síochána acting under

the authority of a warrant to operate any computer at a place which is being searched, 2 and to require any person at that place, who has lawful access to the information in any such computer, to furnish any password necessary to operate it

2 The applicant contends that this requirement and the offence created by any failure to comply with it, together with the consequential power of arrest, constitute a disproportionate interference with the privilege against self-incrimination.

3 The background to these proceedings concerns a complex investigation by the Serious Economic Crime Investigation Unit of the Garda National Economic Crime Bureau (“GNECB”) in relation to suspected alleged criminal offences, including suspected revenue offences, Companies Act offences, social welfare fraud and suspected offences of making gain or causing loss by deception, contrary to section 6 of the 2001 Act which arose consequent upon the conviction of Mr. Michael Lynn in December 2023.

4 As part of this ongoing garda investigation, on 8 ^th January 2024, Detective Garda Laura Barton of the GNECB made an application to the District Court for a search warrant pursuant to section 48(2) of the 2001 Act to search the applicant's home address at Apartment 7, Saint Raphaela's Apartments, Saint Raphaela's Road, Kilmacud Road Upper, Stillorgan, County Dublin.

5 It was during the course of this search on 9 ^th January 2024 that the Gardaí seized various items, including the following three devices: a Google Pixel 4 mobile smartphone, a Google Pixel 6 mobile smartphone and an Asus laptop.

6 The applicant confirmed that he owned these devices and that a password was required for each device.

7 When asked by the Gardaí for the passwords necessary to operate the devices, the applicant refused, which led to him being charged and prosecuted and, ultimately this application for judicial review in which leave was granted by this court (Hyland J.) on 15 ^th April 2024 for an order of prohibition in relation to three charge sheets regarding the three devices and declaratory relief that section 48(5)(b)(i) (which conferred the power to require the applicant to provide the passwords), section 49(1)(c) (which creates the offence of failing to comply with this requirement) and section 49(2) (which provides for the power of arrest in such circumstances) of the 2001 Act are respectively invalid having regard to the provisions of the Constitution.

8 Mark Lynam SC and Paul Comiskey O'Keefe BL appeared for the applicant. Kieran Kelly BL appeared on behalf of the Director of Public Prosecutions (“the DPP”). Remy Farrell SC

and Joe Holt BL appeared on behalf of the Garda Commissioner, Ireland and the Attorney General (“the State respondents”)

Statement of Grounds

9 Whilst the ultimate objective of this judicial review application (reflected in the prohibitory relief claimed) is to restrain the prosecution of the applicant on foot of Dundrum charge sheets numbers 25468486, 25468461 and 25468494 (in the context of the three devices) and notwithstanding the reference to the ‘declaration of incompatibility’ in section 5 of the European Convention on Human Rights Act 2003, in the Statement of Grounds, the gravamen of the applicant's challenge centred on his contention that the powers in sections 48 and 49 of the 2001 Act – which (i) confer the power to require the applicant to provide passwords for the three devices; (ii) create an offence when failing to comply with this requirement; and (iii) provide for a consequent power of arrest – are respectively invalid, having regard to the Constitution, in that it is claimed that they amount to a disproportionate interference with the applicant's asserted right to the privilege against self-incrimination.

10 While this is examined in more detail later in this judgment, these proceedings, therefore, come within that category of a judicial review application which seeks to challenge (in this case, part – but not all – of) the underlying legislative provisions in section 48 of the 2001 Act which create an offence for failing to comply with a request to furnish a password in relation to computers.

11 In Damache v DPP [2012] IESC 11, [2012] 2 I.R. 266, at paragraph 12 of her judgment, Denham C.J. described this type of challenge, when dealing with the issue of prematurity in that case, as follows:

“ This case is brought in advance of a trial. No evidence has yet been given. This is well illustrated by the grounding affidavit in these proceedings, deposed by the appellant's solicitor, based on a statement in the book of evidence of a member of An Garda Síochána. This is an unsatisfactory basis for analysis. However, the appellant has been affected by the section: his home was searched pursuant to a warrant issued under the section. This is not a case about the validity of the warrant. The sole issue is the constitutionality of s. 29(1) of the Act of 1939. In the circumstances the Court did not require to hear counsel on the issue of prematurity”.

12 The applicant's Statement of Grounds is dated 1 ^st February 2024 and the facts referred to therein are set out in his Affidavit sworn on 1 ^st February 2024. The applicant also exhibits a précis of the evidence proposed to be led by the prosecution at his summary criminal trial in an Affidavit sworn on 29 ^th February 2024. The Notice of Motion is dated 17 ^th April 2024.

Statement of Opposition

13 The State respondents' Statement of Opposition is dated 2 ^nd July 2024 and is grounded and verified on the Affidavits of Detective Sergeant Wayne Donnelly sworn on 3 ^rd July 2024, Detective Garda Anthony Woods sworn on 5 ^th July 2024 and the Affidavit dated 9 ^th July 2024 of Detective Sergeant Michael Ryan of the Garda National Cyber Crime Bureau addresses inter alia technical matters in relation to the Google Pixel 4 and 6 mobile smartphones. Mr. Michael Durkan, Senior Prosecutor in the Judicial Review Section of the Office of the DPP, swore a verifying Affidavit on 8 ^th July 2024, insofar as the Statement of Opposition related to matters concerning the DPP.

THE STATUTORY PROVISIONS

Section 48 of the 2001 Act

14 Section 48 of the 2001 Act provides for ‘ search warrants’ as follows:

“ 48(1) This section applies to an offence under any provision of...