Supreme Court allows appeal on self-incrimination but awards costs against appellant for procedural errors.

An Chúirt Uachtarach

The Supreme Court

O’Donnell C J Charleton J Hogan J Collins J Donnelly J Supreme Court appeal number: S:AP:IE:2025:000030 [2026] IESC 24 High Court record number: 2024/155JR [2024] IEHC 721 Dublin District Court charge number:

25468461, 25468486, 25468494

Between

Yavor Poptoshev Applicant/Appellant

AND

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

Respondents

Costs Ruling of the Court, delivered by Mr Justice Charleton, on 25 March 2025

1. This ruling as to costs should be read together with the judgment of the Court dated 20 November 2025; [2025] IESC 47.

2. In that judgment, the Court upheld the constitutionality of section 49(1)(c) of the Criminal Justice (Theft and Fraud Offences) Act 2001; the offence being of failing to comply with a lawful requirement to provide passwords to computer devices, or to otherwise cooperate in accessing it, where computers are seized on a valid warrant. Yavor Poptashev had been charged with that offence in the circumstances outlined in the judgment. He sought: 1) to prohibit his trial on this offence; 2) to declare the relevant sections of the 2001 Act unconstitutional; and 3) have a ruling in advance of trial that mobile phones did not fit the relevant definition of computer in the 2001 Act.

3. In the High Court, Bradley J held that the right to silence was not engaged by the section; [2024] IEHC 721.

4. This court granted a direct appeal; [2025] IESCDET 57.

5. The judgment of the Court dismisses the contention that a mobile phone or smart phone is not a computer as so defined by the 2001 Act and notes that the forum for deciding admissibility is the trial and not judicial review. Prohibition was also refused.

6. As to constitutionality, the Court held that the privilege against self-incrimination was engaged by the section, since for a person to be required to reveal that a computer carried a particular password for access or was only to be operated by fingerprint, face or other biometric recognition could enable an inference at trial of possession of the relevant device. Hence, that particular exchange, as between demand to operate the computer or for the password and the reply or action in opening it biometrically, could not be adduced in evidence at trial. What the authorities could validly do, however, was to obtain the data to operate the computer and to search its contents, which contents as already existing evidence could be constitutionally used at trial.

7. Hence, the judgment of the Court clarified that it was the compulsion of information that may incriminate for the purpose of use against a suspect at trial that embraced the privilege.

8. Consequently, the ruling of the Court was an important clarification of the law in this area.

9. Here, the Director of Public Prosecutions, The Commissioner of An Garda Síochána, Ireland and the Attorney General seek their costs on the basis of their success in the High Court, where costs were awarded against Yavor Poptashev, and in this Court. Yavor Poptashev could have availed of the custody scheme for costs, it is contended as important, but choose not to do so from the outset. Yavor Poptashev contends that the importance of the case should result in no order as to costs in either court. Both parties, as is now usual, rely on section 167(1) of the Legal Services (Regulation) Act 2015 as to costs ordinarily following the event and on the decision in Little v Chief Appeals Officer [2025] IESC 53.

10. What is contended to be germane from the State parties is that there was no reliance on the legal aid scheme, that seeking a declaration of unconstitutionality through plenary proceedings would have been preferable, as not necessarily prohibiting the trial, added to the risk associated with seeking prohibition due to it being an exceptional remedy in interfering with the criminal process.

11. Yavor Poptashev counters with the grant of leave ordinarily suggesting in proceedings against the State that a benefit arises from a judgment of this Court and, here, exceptionally so since that appeal was, by leave of the Court, direct. What is sought is no order in either court.

12. The state of the law as to self-incrimination has been clarified by the judgment. Central to the Court’s ruling is the concept of use: that while information which exists may be searched for and accessed through judicial warrant under legislation, and that powers of compulsion to enable entry into computers are valid, in addition to forensic testing whereby a computer may lawfully be hacked, what the privilege embraces is compulsion for the use of such compelled information as evidence in a penal process. Hence, what is in the computer, if accessed through the cooperation of the suspect or through forensic testing, is admissible, but a compelled statement or action which furthers a contention of possession, whether that is the specific charge or not, in court infringes the prohibition against self-incrimination.

13. Several prior cases were considered and analysed by the Court in pursuit of a modern and workable ruling as to self-incrimination. This was in consequence of the appeal.

14. At the same time, these proceedings were entirely in the self-interest of Yavor Poptashev and were ones which sought evidential rulings in advance of a trial, contrary to standard law, and the effective end to an important investigation that might have led to a prosecution apart from this one of refusal to reveal a password or engage biometric data.

15. The order against Yavor Poptashev as to costs in the High Court must stand. As to the appeal to this Court, that was necessary in clarification of the law.

16. Hence, the order will be: costs against Yavor Poptashev in the High Court, limited to one order in respect of the State parties collectively; and no order as to costs in the Supreme Court.