Criminal Justice (Search Warrants) Bill 2012
Second Stage (Seanad)
Speech by Alan Shatter, T.D., Minister for Justice, Equality and Defence
Tuesday 19 June 2012
A Chathaoirligh,
I am pleased to be here today to present the Criminal Justice (Search
Warrants) Bill 2012 to this House.
This is a short Bill but an important one. As its title suggests, it
concerns search warrants, an essential tool in the effective investigation
of crime. The primary purpose of the Bill is to restore, in updated form,
the search warrant provision in section 29 of the Offences against the
State Act 1939 which was found to be repugnant to the Constitution by the
Supreme Court. The relevant judgment was delivered on 23 February this year
in the case of Ali Charaf Damache V the Director of Public Prosecutions,
Ireland and the Attorney General.
I think it would help the House in its consideration of the Bill if I
outlined the background to the judgment and its main elements. The
proceedings challenging the constitutionality of section 29 were initiated
by an individual awaiting trial on a charge of making threatening telephone
calls in connection with an investigation into alleged international
terrorism. The alleged terrorist activity related 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. The individual was charged on foot of
evidence gathered under the authority of a search warrant issued under
section 29.
For the information of Members I will read the relevant part of section 29.
It states as follows:
“Where a member of the Garda Síochána not below the rank of
superintendent is satisfied that there is reasonable ground for
believing that evidence of or relating to the commission or intended
commission of an offence …. is to be found in ….. any place … he
may issue to a member of the Garda Síochána not below the rank of
sergeant a search warrant under this section in relation to such
place.”
The warrant at the centre of the proceedings was issued by the
superintendent who was not only in charge of the investigation but actively
involved in it. It authorised the search of the individual’s home.
I should say for the record that there is no suggestion that the
investigation was not properly carried out – the investigators operated in
good faith within the law as it applied at the time.
The case submitted on behalf of the applicant was that section 29 was
repugnant to the Constitution as it permitted a member of the Garda
Síochána who had been actively involved in a criminal investigation to
determine whether a search warrant should issue in relation to his or her
own investigation. The defence submitted that as a matter of constitutional
justice a decision authorising interference with an individual’s right to
privacy should, at a minimum, be made by someone independent of the
investigation.
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 identified
a number of important aspects to the issuing of search warrants which have
assisted in shaping the approach adopted in the Bill before the House
today.
Firstly, in order for the process of obtaining a search warrant to be
meaningful it is necessary that the person authorising the search is able
to assess the conflicting interests of the State and the individual in an
impartial manner. Of note in this regard is that the Court accepted that
the issuing of a warrant is an administrative act rather than the
administration of justice and therefore is not required to be performed by
a judge. Secondly, the Court emphasised that the dwelling is afforded
special constitutional protection. Article 40.5 expressly provides that the
dwelling is “inviolable and shall not be forcibly entered save in
accordance with law”. As pointed out by the Court any such interference by
law must adhere to the fundamental legal norms postulated by the
Constitution. The Court concluded that section 29 did not incorporate the
fundamental principle of an independent decision-maker and accordingly fell
foul of the Constitution.
The Court also stated that it was deciding the matter on the case before it
and that it had not considered or addressed situations of urgency. This is
an important statement as the statute book contains a small number of other
provisions which permit senior officers of the Force to issue warrants. For
the most part these other provisions can be distinguished from the impugned
section as they are restricted to circumstances of urgency requiring the
immediate issue of a warrant that would render it impracticable to apply to
a District Court judge. I will return to these provisions later.
In case there is a perception that the finding of unconstitutionality
should have been anticipated and addressed proactively I would say the
following. In the first instance it must be recalled that this particular
search power formed part of the panoply of legislation designed to prevent
terrorist groups from subverting the institutions of the State and indeed
the State itself.
It is regrettable that we have to have such provisions on our statute book
but they are there as a response to a real threat posed by self-appointed,
self-seeking groups and individuals who have no ambitions for the State or
its systems apart from a destructive one.
Members of this House may be aware that the Supreme Court referred in its
judgment to the recommendation of the Morris Tribunal in relation to
section 29. It is the case that the Morris Tribunal considered the
proportionality of section 29. Unlike a number of other recommendations
where Mr. Justice Morris recommended that specific action be taken, his
recommendation in relation to section 29 warrants called for “urgent
consideration” to be given to changes in this area, rather than making an
absolute recommendation that those changes be made.
It is fully accepted that in fulfilling his role as a Tribunal
of Inquiry
it was not a matter for Mr Justice Morris to adjudicate on the
constitutionality of legislative provisions. But it is worth noting that
in the relevant part of his report, Mr. Justice Morris not only did not
raise the prospect of the section being found unconstitutional, but, in
fact, pointed out that the issuing of a search warrant by a Garda officer
rather than by a judge in relation to a citizen’s dwelling “is an exception
allowed by our Constitution”.
The potential for section 29 to be found unconstitutional did not feature
in the recommendation made by Mr Justice Morris. The fact is that the
provision had been operating for many decades, in its original form since
1939 and in its amended form since 1976.
I acknowledged that Mr Justice Morris recommended that “urgent
consideration” be given to vesting the power to issue warrants under
section 29 in judges of the District or Circuit court. However,
significantly he also stated that a residual power could, perhaps, still be
vested in a senior officer of the Garda Síochána to be used in exceptional
circumstances. It would be quite wrong, therefore, to make any causal link
between the provision being found unconstitutional and the action which was
taken in response to that recommendation.
Legislative amendment was, as recommended by Mr Justice Morris, urgently
considered at the time. However, it was not proceeded with as the
Minister, at that time, was advised by the Garda Commissioner that to
change the system would undermine the operational effectiveness of the
Garda Síochána, particularly in situations where urgent action is required
to save lives or to react rapidly to serious crime or terrorism.
In conclusion on this particular point I would mention that the Law Reform
Commission, following a submission from the Department, included an
examination of search warrants in its work programme. The Commission
published its Consultation Paper on Search Warrants and Bench Warrants in
December, 2009. That Consultation Paper - which was published after the
Morris Tribunal recommendation - dealt specifically with the question of
the constitutionality of search warrants issued by persons other than
judges. It concluded that:
'In light of … case law, it appears to be well established that issuing
search warrants is an administrative, as opposed to a judicial,
function. Therefore issuing can be carried out by a person other than
members of the judiciary, such as peace commissioners and members of the
Garda Síochána, and this does not offend the Constitution'.
In the circumstances there was clearly no basis for advising Ministers that
there were grounds for concern about the constitutionality of section 29
warrants.
In the period since the judgment was handed down my efforts have been
directed towards seeking to ensure that the Garda Síochána has all the
legislative back-up it requires to investigate terrorist activity and other
serious crime. That is the aim of the Bill before the House. I would take
this opportunity to reassure Members that it is not the case that the Garda
Síochána is without search powers following the Court judgment. Gardaí can
avail of other statutory powers which allow applications for search
warrants to be made to District Court judges. In addition, the law allows
Gardaí to enter premises, including dwellings, for the purpose of carrying
out arrests or to protect the lives of persons within. The absence of
section 29 does, however, have the potential to hamper Garda investigations
in situations of urgency where there is insufficient time to contact a
judge. 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.
Before turning to the provisions of the Bill I would like to say a few
words about its scope. In particular, I would emphasise that it is focused
on future investigations and does not, and indeed could not, have any
effect on existing section 29 warrants. Members will be aware that there is
no legislative option open to the Government to retrospectively address any
concerns that may arise in relation to such warrants – clearly it is not
possible for legislation to make something constitutional which the Supreme
Court has declared to be unconstitutional. However, cases that might be
affected by the terms of the judgement will be the subject of examination
by the Director of Public Prosecutions and the Garda Síochána in order to
decide how to proceed. In cases where prosecutions are being considered it
is a matter for the DPP to decide whether to proceed or not. Where
convictions have already occurred, it is a matter for the Courts, in the
event of a challenge to such convictions, to consider whether they should
stand.
I acknowledge that for the victims of crime, the possible quashing of
convictions that their evidence may have helped to secure, will be
distressing and difficult to accept. I acknowledge also that the
possibility that they may be called on to participate in a retrial will
bring further anxiety. But at the heart of any criminal justice system in
a democracy is a requirement to try accused persons in “due course of law”.
This necessarily includes a requirement to secure convictions on the basis
of evidence gathered in conformity with our Constitution.
I will now outline to the House the main provisions of the Bill.
Section 1 substitutes section 29 in its entirety in order to establish a
new procedure for the issuing of search warrants under the 1939 Act that
will adhere to the principles set out by the Supreme Court. In addition, I
have taken this opportunity to update the section by incorporating some
elements that have become standard in more recently enacted search warrant
powers.
Before outlining the new procedure let me say that the list of offences to
which this section will apply remains almost unchanged and comprises: any
offence under the 1939 Act itself; any offence that is for the time being a
scheduled offence under Part V
of the 1939 Act, that is to say which may be
tried before the Special Criminal Court, examples include such offences as
directing an unlawful or criminal organisation; offences under the Criminal
Law Act 1976 which include inciting or inviting a person to join an
unlawful organisation or aiding a person’s escape from prison; and finally
treason. Also covered are the inchoate offences of attempting or conspiring
to commit or inciting the commission of one of the principal offences. The
only change is the inclusion of this latter offence, that of incitement. I
have included it to ensure that all forms of secondary liability relating
to the principal offences are covered.
The new procedure for the issuing of search warrants in relation to these
offences is founded on the premise that, absent exceptional circumstances,
applications for search warrants are best made to District Court judges.
This is provided for in subsection (2). While, as I have said, the issuing
of a search warrant does not constitute the administration of justice and
need not, therefore, be restricted to judges, it is the case that judges
are demonstrably independent of criminal investigations and their
involvement provides the very necessary third party supervision emphasised
in the judgment.
That said, circumstances may arise where a warrant is required immediately
to prevent the destruction of vital evidence or to prevent the commission
of a serious crime. In such urgent circumstances, and in the event that
the District Court judge for the particular district cannot be contacted
within the time available, subsection (3) allows a senior officer of the
Garda Síochána to issue a warrant. By senior officer I am referring to a
member not below the rank of superintendent. I would emphasise that an
investigating Garda will not simply be able to choose whether to apply to a
District Court judge or a senior officer. He or she must apply to a
District Court judge unless the very limited circumstances which permit an
application to a senior officer are present.
Before detailing these limited circumstances I should mention that the
basic test for the grant of a search warrant applies to both judge-issued
warrants and Garda-issued warrants under this section. In each case before
issuing a warrant to a sergeant the issuer must be satisfied that “there
are reasonable grounds for suspecting that evidence of, or relating to the
commission of an offence to which the section applies is to be found in any
place.” I have chosen the standard of “reasonable grounds for suspecting”
as it mirrors the standard for obtaining search warrants contained in more
recent statutes.
I have decided not to carry forward the wording of the original section 29
which allowed a warrant to be issued in relation to “the intended
commission of an offence”. Instead, warrants under the replacement section
may only be issued in relation “to the commission of an offence to which
the section applies”. Members will recall that the offences to which the
section will apply include attempts, conspiracies and incitement. I am
concerned that to go further than this and to retain the concept of
“intended commission” would give rise to a perception that search warrants
could be authorised in circumstances where no overt act in furtherance of
an offence had been committed.
Search warrants relate to places. For the purposes of this section “place”
is defined in non-exhaustive terms in subsection (12) and includes a
dwelling. The language of the original section 29 regarding the meaning of
place was the subject of some criticism. It referred to “any place
whatsoever” and in doing so gave rise to the perception in some quarters
that it was unusually broad. While that was not the case, I have taken this
opportunity to update the language.
Returning to the limited circumstances in which a senior officer may issue
a warrant, these are set out in subsections (4) and (5). Subsection (4)
contains the key two-part test that must be met before a senior officer may
issue a warrant: firstly the officer may not issue a warrant unless he or
she is satisfied that it is necessary for the proper investigation of an
offence to which the section applies, and secondly that circumstances of
urgency giving rise to the need for the immediate issue of the warrant
would render it impracticable to apply to a District Court judge. The short
duration of such a Garda-issued warrant – 48 hours compared to the 7 day
duration of a judge-issued warrant further emphasises that this option is
restricted to exceptional circumstances.
Subsection (5) adds a further crucial condition and addresses the heart of
the Supreme Court judgment. It requires the senior officer to be
independent of the investigation concerned. I would draw the attention of
Members to subsection (12) which defines the meaning of “independent of” as
it relates to an investigation. It is defined as “not being in charge of,
or involved in that investigation”. In the context of the command
structures within the Garda Síochána this means an officer who is not in a
position to issue directions in relation to that investigation.
Essentially, what will be required in practice is that the investigating
Garda will apply to a senior officer in a parallel chain of command to his
or her own.
A final safeguard arising from the judgment is contained in subsection (11)
. This places an obligation on a senior member who authorises a warrant
under the section to either record the grounds at the time or as soon as
reasonably practicable thereafter. As noted by the Supreme Court it is best
practice to keep a record of the basis on which a search warrant is
granted.
The remaining subsections deal with the execution of the warrant and the
conduct of the search. A feature that distinguishes a warrant under this
section from other warrants is that members of the Defence Forces may
accompany members of the Garda Síochána during the search. This is a long
standing feature of section 29 and is an example of the Defence Forces
being expressly authorised to act in aid of the civil authorities.
As is generally the case with search warrants, a warrant under
this section
will authorise the entry of the place named in the warrant, the search of
both the place and any person found there, and the seizure of anything
found at the place or in the possession of a person present at the place.
The right to enter is subject to the obligation to produce the warrant or a
copy of it, if requested. This requirement is new to the 1939 Act and is
intended as an added safeguard. The entry may be achieved by use of
reasonable force, if necessary. Again the qualification of the force
permitted as “reasonable” is new.
As is also generally the case with search warrants, subsection (8) provides
that a warrant under this section will allow members of either Force acting
under the authority of the warrant to require any person present at the
place where the search is being carried out to give to the member his or
her name and address. An arrest power is provided in the event that any
person obstructs or attempts to obstruct a member in the carrying out of
their duties, fails to give a member his or her name and address, or gives
a false or misleading name or address.
The final element of section 1 that I would like to highlight is subsection
(9). It creates an offence of obstructing or attempting to obstruct a
member, refusing to give a name or address on request or giving a false or
misleading name or address. The maximum penalties on conviction are a class
A fine, which is a fine not exceeding €5,000, or imprisonment for a term
not exceeding 12 months or both. Members will note that this offence is
summary in nature. This represents a change from the impugned section which
allowed the offence to be tried on indictment with a maximum penalty on
conviction of a term of imprisonment of 5 years. As this offence is
ancillary to the search rather than a principal offence, I am satisfied
that it is appropriate that it be summary in nature.
I would conclude my remarks in relation to section 1 by saying that its
contents represent very careful consideration of the Supreme Court judgment
in consultation with the Attorney General. And I am satisfied that the new
procedures incorporate the fundamental principle of an impartial
decision-maker as required by the Constitution.
Members will have noted that sections 2 and 3 of the Bill concern search
warrant provisions in relation to suspected drug offences. As I mentioned
earlier there are a small number of other statutory provisions which allow
for Garda-issued warrants, generally in circumstances of urgency. One
important such provision is that contained in section 8 of the Criminal
Justice (Drug Trafficking) Act 1996 which permits a member not below the
rank of superintendent to issue a warrant under section 26 of the Misuse of
Drugs Act 1977. Certain conditions must be met including that circumstances
of urgency that require the immediate issue of a warrant arise that would
render it impracticable to apply to a District Court judge or a peace
commissioner. The purpose of the amendments to the 1996 Act contained in
section 3 of the Bill is to apply two further safeguards to the issuing of
such warrants. Firstly, to require the senior officer who issues a warrant
to be independent of the investigation, and secondly to require the issuing
officer to record the grounds on which they issued the warrant. These
amendments will bring Garda-issued warrants under section 26 of the 1977
into line with those issued under the replacement for section 29. Section 2
makes a minor consequential change to section 26 of the 1977 Act.
Section 4 is the final section of the Bill. It includes the short title and
the commencement arrangements. As Members will appreciate from my earlier
remarks, I am anxious to ensure that there is no undue delay in the
commencement of this Bill once it is passed. For this reason section 4(2)
provides that the Bill will come into operation the day after its passing.
No commencement order will be required.
Before concluding my remarks I would like to take the opportunity to refer
to a general review of search warrants that is to be conducted by my
Department. This Bill is limited to addressing the implications of the
Supreme Court judgment. There is, however, a complex series of Acts and
statutory regulations, in the region of 300, some dating from before the
foundation of the State, that confer powers of search and seizure. It is, I
believe, timely to conduct a general review of such powers. This review and
any subsequent legislative proposals will be informed by the forthcoming
report of the Law Reform Commission on the subject.
In conclusion, I would ask for the cooperation of this House in the passage
of this Bill as speedily as possible in order that it may become law before
the Summer recess.
I commend this Bill to the House.