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Minister Shatter publishes legislation to plug gap in Garda search powers

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.