Professor Geoffrey Shannon said police should also have the power to search suspects and to seize mobile devices, when conducting such investigations.
The Special Rapporteur on Child Protection’s position is contained in a report on cybercrime, published by the Association for Criminal Justice Research and Development.
In his paper, Prof Shannon said Ireland has been “slow” to address online threats to children, but recognised that the Criminal Law (Sexual Offences) Act, 2017, has “vastly expanded” existing laws and has created new offences.
“In light of these new offences, it is submitted that further powers need to be granted to An Garda Síochána,” he said.
He said technology giants, such as Facebook, Google, Yahoo, Adobe and Microsoft, have offices, indeed headquarters, in this country. He said many of them store their Irish data here, but some claim it is stored in the US or elsewhere.
“For the investigation of child pornography and sexual offences cases against children, where ICT [information and communications technology] is involved, An Garda Síochána should be provided with the power to obtain a production order, in respect of data that is either ‘held or accessible’ by content providers based in Ireland,” he said.
“This order could then be served on any such provider registered in Ireland, requiring production of ICT evidence: photos, chat, account information, and IP addresses.”
He said an order similar to that in section 15 of the Criminal Justice Act, 2011, for fraud and banking, is worthy of consideration.
“It seems anomalous that powers introduced to deal with the banking crisis should not be available to protect vulnerable children,” Prof Shannon said.
He said mobile devices play a powerful role in sharing child pornography, as well as in grooming, solicitation, and sexual exploitation.
He said the historic position, whereby child pornography was held on a home computer, does not reflect modern technology.
Prof Shannon said gardaí should be provided with a power similar to section 23 of the Misuse of Drugs Acts. This power allows gardaí to search a person and seize anything of evidential value.
Professor Anne-Marie McAlinden, of the School of Law at Queen’s University, Belfast, said the “complexities of grooming”, regarding the nature of the victim-offender relationship, have “potential consequences” for the credibility of victims as witnesses and in prosecutions. This is particularly so when the two people are peers.
She said that sexting also poses difficulties for police: firstly, in “identifying the ‘victim’ and the ‘perpetrator’,” where the initial sending of the image is unsolicited or sent on a consensual basis, but then disseminated further without the subject’s complaint; and, secondly, in classifying the image as harmful or illegal.
In relation to peer-to-peer grooming and child sexual exploitation, there are difficulties in “separating out ‘normal’, problematic and harmful sexual behaviour,” particularly if there is a relationship.
Professor Clare McGlynn, of Durham Law School, at Durham University, said revenge porn should be defined and punished as ‘image-based sexual abuse’ and not just as a harmful communication.
She said the crimes are ‘gendered’, in that they mainly affect women and girls.