The Minister for Justice, Equality and Defence, Mr. Alan Shatter, T.D., announced that the Criminal Justice (Search Warrants) Bill 2012 has, today, completed its passage through the Houses of the Oireachtas.
In making the announcement, Minister Shatter said "I am very pleased that this important piece of legislation has been passed with the broad support of members of the Oireachtas and thank them for their cooperation in ensuring its passage before the summer recess. Once this piece of legislation comes into force it will restore, in a constitutionally-robust form, the full range of Garda search powers necessary to deal with the very real threat posed by those groups engaged in despicable terrorist activities and other serious crime.”
The Bill was brought forward to address the implications of the Supreme Court judgment in the case of Ali Charaf Damache v The Director of Prosecutions, Ireland and the Attorney General (23 February 2012), which found section 29 of the Offences against the State Act 1939 to be repugnant to the Constitution because it allowed a person who was not independent of the investigation concerned to issue a search warrant in relation to a dwelling.
The replacement for section 29 of the 1939 Act is designed to be in conformity with the Supreme Court judgement. In particular, it provides that an application for a warrant may be made to a District Court judge and limits the circumstances in which a superintendent (or officer of higher rank) may authorise a warrant to circumstances of urgency requiring the immediate issue of a warrant and where it would be impracticable to apply to a District Court judge. Such superintendent-issued warrants will be of short duration and may only be authorised by a superintendent who is independent of the investigation.
The Bill also makes some amendments to the search powers that apply in relation to investigations into suspected drug offences.
The Bill is available at www.oireachtas.ie
Note for Editors
1. Section 29(1) of the Offences against the State Act 1939 (as substituted by section 5 of the Criminal Law Act 1976) allowed a member not below the rank of superintendent to issue a warrant for any place where they were satisfied that evidence of, or relating to, the commission or intended commission of the following offences was to be found:
· an offence under the 1939 Act,
· an offence for the time being scheduled for the purposes of Part V of the 1939 Act,
· an offence under the Criminal Law Act 1976, or
· treason, and
· the inchoate offences of attempting, conspiring, or inciting.
The offences under the Criminal Law Act 1976 include: inciting / inviting a person to join an unlawful organisation; aiding an escape from custody; conveying something into a prison contrary to prison rules; prohibition of giving certain false information.
2. The scope of the Bill is confined to future Garda investigations as there is no retrospective legislative action open to the Minister to deal with existing cases where the use of section 29 may be at issue. It is not possible for legislation to make something constitutional which the Supreme Court has declared to be unconstitutional.