Garda Síochána (Powers) Bill 2026: Committee Stage (Resumed)
Seanad Éireann — 2026-05-26
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Jim O'Callaghan (FF), Dublin Bay South

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 parte basis, 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.

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Record URI: https://data.oireachtas.ie/akn/ie/debateRecord/seanad/2026-05-26/debate/main
Retrieved: 2026-08-14T04:54:59+00:00
Sitting date: 2026-05-26