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'Unconstitutional' search warrant process addressed but retrials, quashed convictions still possible

The new legislation comes after a successful appeal by a man allegedly involved in an international terrorist plot.

File photo
File photo
Image: Alan Diaz/AP/Press Association Images

JUSTICE MINISTER ALAN Shatter has presented a new Bill to the Seanad which will see a change of the rules surrounding the search warrant process.

The main purpose of the revised legislation, the Criminal Justice (Search Warrants) Bill 2012, is to restore and update certain provisions which were found to be unconstitutional by the Supreme Court earlier this year.

The high-profile case of Ali Charaf Damache called for swift action from the Government.

Damache was prosecuted for allegedly making threatening phone calls in connection with an investigation into international terrorism. Accused of activity relating to a conspiracy to murder Lars Vilks, a Swedish cartoonist whose drawings depicted the Islamic prophet Mohammed with the body of a dog and which provoked serious unrest in a number of Islamic countries, Damche’s home was searched after a warrant was issued by a Garda superintendent working his case.

Damache was charged because of evidence gathered under that now-debunked search warrant.

That process allowed for a Garda superintendent involved in an investigation authorise a search of an individual’s home under section 29 of the Offences Against the State Act. The appeal submitted on behalf of Demache argued that it was unconstitutional for a search warrant to be made by someone not independent of the probe.

Shatter noted that there was no suggestion that the investigation in question was not properly carried out. He said the investigators “operated in good faith within the law as it applied at the time”.

The Supreme Court, on appeal, granted the declaration that section 29 was invalid on the ground that it permitted a search of a dwelling on foot of a warrant that was not issued by an independent person.

The court noted a number of things that have now been used to shape the new Bill. The new laws will still provide for senior officers (no lower than superintendent) to issue urgent warrants but only when district court judges are not available. The officer in question must also be independent of the investigation concerned.

Shatter told the House that the Gardaí have still had search powers following the court judgement as they can avail of other statutory powers. However, urgent investigations can be hampered without the full provisions of section 29 when there is insufficient time to contact a judge.

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“It is for this reason that the Government and I have moved swiftly to replace the impugned provision with a constitutionally-robust one which seeks to ensure that the proper balance is struck between the preservation of the security of the State and the constitutional protection afforded to an individual’s dwelling,” he explained to the Seanad.

Is there other possible cases?

Shatter could not be completely conclusive over the number of other cases that could be affected by the 23 February Supreme Court ruling as the Government cannot retrospectively address concerns that may arise in relation to such warrants.

The matter is now with the Director of Public Prosecutions and the Gardaí to see how best to proceed in those small number of cases where suspects await trial. In cases where there have already been convictions, it is a matter for the Courts on whether they should stand, advised Shatter.

“I acknowledge for victims of crime, the possible quashing of convictions that their evidence may have helped to secure will be distressing and difficult to accept,” added the Minister. “I acknowledge also that the possibility that they may be called on to participate in a retrial will bring further anxiety.”

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