New laws to help courts in other EU states order 'e-evidence' from here lack safeguards, says Oireachtas committee

Concerns raised by Matt Carthy include the lack of clarity on whether Ireland will be facilitating the prosecution of someone who had committed acts that wouldn’t be a criminal offence here, whether artificial intelligence (AI) will be used, and a lack of oversight for this new office in reviewing data prior to its transfer. File photo: SAM BOAL/Collins Photos

New Irish laws to transpose EU directives on cross-border “e-evidence” lack transparency, safeguards, and may come at a “very large and unquantifiable potential cost” to the State, it has been warned.

The EU’s regulation allows a judicial authority in one member state to order a service provider in another member state to produce electronic evidence it possesses for the purposes of a criminal investigation.

This is done without the need for a court order. In reality, it will mean that Ireland needs a dedicated office to facilitate these requests.

In a letter to the justice minister, Oireachtas Justice Committee chair Matt Carthy expressed concerns with the general scheme of the Criminal Justice (International Cooperation Office) Bill 2025 and also highlighted issues raised by University College Dublin (UCD) associate professor in law TJ McIntyre around the legislation.

“Given the department’s own admission that this is the first time a system of this nature has been done, and the significant issues that remain unresolved, the committee is of the view that the general scheme would benefit from more thorough scrutiny, especially from a human rights perspective,” Mr Carthy said.

'e-evidence'

The proposed legislation gives effect to the EU’s e-evidence — evidence held in electronic form — directive.

At a committee hearing earlier this month, department officials said social media and electronic communications such as emails are now relevant in most criminal investigations.

In the EU, such services are provided by one of the large service providers who may only have a physical presence in one member state. In the case of many of the big tech firms, their European headquarters are in Ireland.

“However, a person residing in Belgium, for example, who commits a crime in Belgium may now be using some form of electronic communication or social media that the police want to access and what would formerly have been a domestic investigation suddenly has an international dimension,” department assistant secretary Jimmy Martin said.

“The traditional forms of judicial mutual assistance in gathering evidence from another country are quite complicated and take some time.” 

Concerns

Concerns raised by Mr Carthy include the lack of clarity on whether Ireland will be facilitating the prosecution of someone who had committed acts that wouldn’t be a criminal offence here, whether artificial intelligence (AI) will be used, and a lack of oversight for this new office in reviewing data prior to its transfer.

“In addition, the committee is particularly concerned with the ability to process a potential 300,000 cases per year (or 1,000 per day) [and] whether a budget of €2.8m and 30 staff will be sufficient in terms of resourcing, and whether this will negatively impact existing staff levels within the Department of Justice.” 

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He also highlighted the concerns of Mr McIntyre, which include the “lack of fundamental rights safeguards" for those whose data is sought, and it’s particularly concerning given “democratic backsliding in EU Member States and increasing evidence of surveillance abuses, including use of spyware to target opposition politicians, journalists and civil society”.

Mr Carthy added: “The committee recommends that serious consideration be given to the concerns raised in the course of its engagement on this matter as outlined in this correspondence.”