Minister closes loophole of flawed search warrants

Sat, Jun 9, 2012, 01:00

MINISTER FOR Justice Alan Shatter has moved to address a problem in the law that has led to a number of successful appeals to criminal convictions because search warrants issued during some investigations were found to be unconstitutional.

In March the Supreme Court rendered unconstitutional section 29 (1) of the Offences Against the State Act.

It did so after a man took an appeal against his prosecution, claiming that a Garda superintendent working on the investigation should not have issued a warrant allowing a search of his property. Ali Charaf Damache argued the law stated that only a person independent of the Garda inquiry could issue a search warrant. He claimed that the superintendent leading the investigation could not be regarded as being independent of the inquiry.

The court agreed. It meant any evidence gathered under the warrant was inadmissible, derailing the prosecution of Mr Damache.

Subsequent appeals based on the Damache ruling have been successful in having criminal convictions quashed. Co Cork businessman Ted Cunningham, who was convicted of laundering the alleged proceeds of the Northern Bank raid, has also had his convictions quashed. While retrials have been ordered in these cases, the future of those retrials is unclear now that evidence discovered under the defective warrants could not be used again.

Mr Shatter yesterday published the Criminal Justice (Search Warrants) Bill 2012. It will replace the section of the Offences Against the State Act deemed unconstitutional.Under these provisions warrants needed quickly may be granted by a District Court judge or a Garda superintendent who is not directly involved in the inquiry.

Mr Shatter said the legislation struck a balance between preserving State security and respecting the constitutional protection afforded to an individual’s dwelling. The Irish Times understands there are fewer than 10 appeals based on the Supreme Court ruling in the Damache case.