Poptoshev v Director of Public Prosecutions & Ors [No. 2] (Approved)

Factual and Procedural Background

This opinion concerns a costs ruling following a prior judgment in which the Applicant challenged specific sections (48(5)(b)(i), 49(1)(c), and 49(2)) of the Criminal Justice (Theft and Fraud Offences) Act 2001. The Applicant contended that these provisions, which empower a member of An Garda Síochána to require passwords for computers during a search and criminalize non-compliance, disproportionately interfered with the privilege against self-incrimination and thus violated constitutional rights. The underlying judicial review was dismissed, and this opinion addresses the subsequent question of costs.

Legal Issues Presented

1. Whether the court should exercise its discretion to award costs to the Respondents following the Applicant's unsuccessful public law challenge to the statutory provisions.
2. How the principles governing costs in public interest litigation, as restated by the Supreme Court in Little v Chief Appeals Officer [2024] IESC 53, apply to this case.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Little v Chief Appeals Officer [2024] IESC 53	Restatement of principles governing costs in public interest litigation, including the court’s discretion to award or withhold costs based on the nature and circumstances of the case.	The court applied the principles to assess whether the Respondents were entitled to costs, considering factors such as the novelty and importance of the legal issues, strength of the claim, systemic importance, and deterrent effect on others.
Saunders v UK (1996) 23 EHRR 313	Referenced in relation to the argument that the law was in a state of confusion regarding privilege against self-incrimination.	The court rejected the argument that the law was confused following this precedent, supporting the dismissal of the Applicant’s constitutional challenge.

Court's Reasoning and Analysis

The court exercised its discretion on costs by weighing several factors derived from the principles restated in Little v Chief Appeals Officer. It found that the constitutional challenge did not involve a novel or unclear point of law of general public importance warranting special treatment on costs. The complexity of the case related to factual investigations rather than legal uncertainty. The challenge was not a test case intended to clarify unsettled law for a broader group, and the Applicant sought to restrain his own prosecution, not merely advance public interest.

The court noted that the search warrant authorizing the seizure of the Applicant’s devices was not legally challenged and was supported by detailed sworn information. The devices were lawfully seized, and the statutory provisions requiring passwords were rationally connected to legitimate objectives, proportionate, and did not infringe the privilege against self-incrimination as the passwords existed independently of the Applicant’s will.

Moreover, the availability of legal aid schemes meant the decision was unlikely to deter others from pursuing similar challenges. Balancing these considerations, the court concluded that the Respondents were entitled to their costs.

Holding and Implications

The court’s final decision is that the Attorney General and the Director of Public Prosecutions are entitled to their costs against the Applicant. This includes reserved costs, which if not agreed upon, will be adjudicated by the Office of the Legal Costs Adjudicators.

The court ordered a stay on execution of the costs orders in the event of an appeal until the appeal is determined or otherwise ordered by the Court of Appeal. No new precedent was established; the decision applies the established framework for costs in unsuccessful public law challenges and confirms the Respondents’ entitlement to costs under the circumstances of this case.