merrion street

The Government on 27 March approved the priority drafting of the Criminal Justice (Search Powers) Bill to restore, in updated form, the search warrant provision in section 29 of the Offences against the State Act 1939 which was struck down by the Supreme Court in its judgment in the case of Ali Charaf Damache v The Director of Public Prosecutions, Ireland and the Attorney General (delivered on 23 February 2012).

The Bill will replace section 29 of the Offences Against the State Act, 1939 with a search warrant provision which takes account of the Supreme Court Judgement.  In particular, the Bill will provide that an application for a warrant may be made to a District Court judge and will limit the circumstances in which a superintendent (or officer of higher rank) may authorise a warrant in 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 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.

The Bill is expected to be published shortly and enacted before the Summer recess.

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.