With the rise of use of electronic devices and social media, there has also been a rise in offences involving child exploitation material.
Recently, there have been significant changes to the Summary Offences Act 1953, relating to suspects possessing child exploitation material which may be contained on electronic devices.
What Are The Changes To The Act?
Part 16A of the Summary Offences Act, 1953 now mandates that where criminal intelligence indicates that a child exploitation offence may have been committed, a specified person may be required to provide information or assistance to Police for the purpose of investigation into the suspected offences.
What Information Is A Specified Person Required To Provide?
Information may include the provision of fingerprints, retinal and facial scans, or access codes to computers. This includes tablets, mobile phones or any other electronic storage device or data storage device (such as a disc or file server) that is reasonably suspected to contain or have evidence related to child exploitation offences.
It is important to note that pursuant to s74BR(6), an Order may be made in respect to an offence suspected of having been committed or alleged to have been committed before or after the commencement of these amendments to the Act. That is, the Order may be made to retrospectively access computers or storage devices of those people suspected of or having committed child exploitation offences.
A person is not excused from compliance with an Order on the basis that information provided or obtained may incriminate that person and evidence obtained regarding a child exploitation offence may be admissible, even though the Order was obtained for a different child exploitation offence.
Under What Circumstances Will An Order To Provide Information Be Made?
An Order for the specified person to provide information will be made if a Magistrate is satisfied on reasonable grounds to suspect that data held on a computer or data storage device may afford evidence of a child exploitation offence and a specified person is:
- Reasonably suspected of having committed a child exploitation offence in relation to which the Order is sought;
- The owner or lessee of the computer or data storage device; or
- An employee of the owner or lessee of the computer or data storage device; or
- A person engaged under a contract for service by the owner or lessee of the computer or date storage device; or
- A person who uses or has used the computer or data storage device; or
- A person who is or was a system administrator for the system including the computer or data storage device; and
- The specified person has relevant knowledge of:
- The computer data storage device or a computer network on which the computer or device forms a part of; or
- Measures applied to protect data held on the computer or data storage device.
The Order need not particularise the computer in which the Order applies or specify the information sought. It may specify the period in which the person must provide the information on the system, dictate that the specified person provide the assistance at a specified place and conditions upon which the requirements to provide information or assistance is subject.
Compliance and Penalties
A person may be detained for as long as necessary or four hours (whichever is the lesser) for an urgent application to be made to a Magistrate. If a person refuses to comply with a police officers’ request to comply, then that person may be arrested without warrant for an application to be made. Non-compliance with an order may see a specified person subject to heavy penalties, including for impeding an investigation, of up to 5 years imprisonment.
If served with an Order and a person alters, conceals or destroys data or causes another to alter, conceal or destroy data imprisonment of up to 10 years.
Under s74BW, if a person is served with an Order and fails to comply without reasonable excuse, contravenes or fails to comply with the Order be subject to imprisonment of up to 5 years.
It is no defence to that charge for non-compliance on the ground that the device may contain evidence which may incriminate the specified person.
As can be seen from the above, these new offences introduced into the Summary Offences Act, 1953 carry heavy penalties and require strict compliance.
If you need further advice, please contact Caldicott Lawyers.