Supreme Court judgement

Search warrants should be issued by judge

Search warrants should be issued by judge

Damache -v- DPP

Neutral citation (2012) IESC 11

SUPREME COURT

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Judgment was delivered on February 23rd by the Chief Justice, Mrs Justice Susan Denham, Mr Justice John Murray, Mr Justice Adrian Hardiman, Mr Justice Nial Fennelly and Mr Justice Joseph Finnegan concurring.

JUDGMENT

Section 29 (1) of the Offences Against the State Act 1939, as amended, permitting a search warrant to be issued by a Garda superintendent, is unconstitutional and the search warrant in question therefore invalid.

BACKGROUND

The appellant, Ali Charaf Demache, was arrested arising out of an investigation into an alleged conspiracy to murder Lars Vilks, a Swedish cartoonist who had depicted the prophet Mohammed with the body of a dog, prompting major unrest in Muslim countries.

On March 10th, 2010, the superintendent heading the investigation granted a search warrant for his house, which was searched the next day. The appellant, his wife and child were present and he was arrested for conspiracy to murder. Items, including a mobile phone, were removed from the house. He was subsequently charged with another offence, sending a threatening message by telephone, contrary to the Post Office (Amendment) Act.

The appellant’s solicitor sought a judicial review of the issuing of the search warrant on a number of grounds, including that it was made by a member of the Garda who directed the investigation; that he asserted he had grounds for suspecting the possession of firearms, though it was not clear to what this related; the appellant was entitled to have the decision on the search warrant issued by a judicial personage; and that section 29 (1) of the Offences against the State Act was unconstitutional because it permitted a member of the Garda Síochána who was actively engaged in an investigation to decide on the issuing of the warrant.

The appellant argued that the person making the decision about a warrant should be unconnected with the matter being investigated, independent, impartial and have no material interest in the decision to be made.

He argued that the impugned section of the Act was invalid under the Constitution because it failed to provide for the balance between the requirements of the common good and the protection of individual rights.

The DPP argued that this section was a legitimate part of the States armoury to protect itself, and any diminution of the individual’s rights was proportionate and lawful.

The application failed in the High Court and Mr Damache appealed to the Supreme Court.

DECISION

In most cases, impartial supervision of the issuing of search warrants is exercised by a district judge, although under a limited number of statutes, authority has been given to members of the Garda, usually in cases of urgency and for a very limited time. Ms Justice Denham pointed out that the Constitution stated that the dwelling of every citizen was inviolable.

The procedure for obtaining a search warrant should adhere to fundamental principles encapsulating an independent decision-maker in a process that may be reviewed, although there could be exceptions, for example, where there was an urgent matter.

Outlining the principles to be followed, Ms Justice Denham said: “For the process in obtaining a search warrant to be meaningful, it is necessary for the person authorising the search to be able to assess the conflicting interests of the State and the individual in an impartial manner. Thus, the person should be independent of the issue and act judicially. Also, there should be reasonable grounds established that an offence has been committed and that there may be evidence to be found at the place of search.”

She added that, while the Oireachtas could interfere with the constitutional rights of a person, its actions must be proportionate.

In this case, the warrant was issued by the superintendent investigating the matter, who therefore was not independent on matters relating to the investigation. The circumstances included the fact that the place searched was the appellant’s dwelling, which the Constitution provides is inviolable save in accordance with law. No issue of urgency arose in this case.

She added that it was best practice to keep a record of the basis upon which a search warrant is granted. The court granted a declaration that section 29 (1) of the Offences against the State Act is unconstitutional because it permitted the issuing of a search warrant by a person who was not independent.

The full judgment is on courts.ie.

Paul Anthony McDermott, instructed by the Chief Prosecution Solicitor, for the DPP; Paul O’Higgins SC and Mark Lynam BL, instructed by Caroline Egan, for the appellant.