The Minister for Justice, Equality and Defence, Mr Alan Shatter, T.D.,
today announced the publication of the Criminal Justice (Search Warrants)
Bill 2012.
The Bill is to replace, in updated form, section 29 of the Offences against
the State Act 1939, which was found to be repugnant to the Constitution by
the Supreme Court in the case of Ali Charaf Damache v The Director of
Prosecutions, Ireland and the Attorney General (23 February 2012), 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.
Making the announcement the Minister said that “It is essential that Garda
investigations into terrorist activities are not hampered by an inability
to act in urgent circumstances. 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. The Minister added that he hoped that Members
would cooperate with the speedy passage of the Bill through the Houses of
the Oireachtas to ensure its enactment before the Summer recess.
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.oireachas.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. Pending the enactment of this legislation, the 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 members of An Garda
Síochána to enter premises, including dwellings, for the purpose of
carrying out an arrest or to protect the life of a person within.
3. 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.