Alan Shatter (Dublin South, Fine Gael)

I move: "That the Bill be now read a Second Time."

I am pleased to present the Criminal Justice (Search Warrants) Bill to the House. The aim of the Bill is to address the implications of the judgment of the Supreme Court in the case of Ali Charaf Damache v. the Director of Public Prosecutions, Ireland and the Attorney General, which was delivered on 23 February this year. In the case the court found that the search warrant provision in section 29 of the Offences against the State Act 1939 was unconstitutional. As a consequence, there is a gap in the State's armoury to tackle the threat posed by terrorism and other serious crime. It is important we move quickly to close this gap, and I ask for the co-operation of the House in the speedy passage of this Bill in order that it may become law before the summer vacation.

It would help Deputies in their consideration of the Bill if I outlined the background to the judgment and its main elements. The proceedings challenging the constitutionality of section 29 were initiated by an individual awaiting trial on a charge of making threatening telephone calls in connection with an investigation into alleged international terrorism. The alleged terrorist activity related to a conspiracy to murder Lars Vilks, a Swedish cartoonist whose drawings depicted the Islamic prophet Mohammed with the body of a dog and which provoked serious unrest in a number of Islamic countries. The individual was charged on foot of evidence gathered under the authority of a search warrant issued under section 29. For the information of Deputies I will read the relevant part of section 29:

Where a member of the Garda Síochána not below the rank of superintendent is satisfied that there is reasonable ground for believing that evidence of or relating to the commission or intended commission of an offence ... is to be found in any place ... he may issue to a member of the Garda Síochána not below the rank of sergeant a search warrant under this section in relation to such place.

The warrant at the centre of the proceedings was issued by the superintendent who was not only in charge of the investigation but actively involved in it. It authorised the search of the individual's home. The individual was arrested for the offence of conspiracy to murder and was subsequently prosecuted on a charge of making a telephone call of a threatening character. I wish to say for the record that there is no suggestion of any impropriety on the part of any member of the Garda Síochána involved in the investigation. The superintendent who authorised the warrant did so in good faith within the law as it was understood at the time.

The case submitted on behalf of the applicant was that section 29 was repugnant to the Constitution as it permitted a member of the Garda Síochána who had been actively involved in a criminal investigation to determine whether a search warrant should issue in relation to his or her own investigation. The defence submitted that as a matter of constitutional justice, a decision authorising interference with an individual's right to privacy should, at a minimum, be made by someone independent of the investigation. The Supreme Court, on appeal, granted the declaration that section 29 was invalid on the ground that it permitted a search of a dwelling on foot of a warrant that was not issued by an independent person. The court identified a number of important aspects to the issuing of search warrants which have assisted in shaping the approach adopted in the Bill before the House this afternoon.

First, for the process of obtaining a search warrant to be meaningful, it is necessary that the person authorising the search is able to assess the conflicting interests of the State and the individual in an impartial manner. Of note in this regard is that the court accepted that the issuing of a warrant is an administrative act rather than the administration of justice and therefore is not required to be performed by a judge. Of course, irrespective of whether the decision maker is a judge, he or she must, as restated by the court, act judicially, that is having full regard for the principles of natural justice.

Second, the court emphasised that the dwelling is afforded special constitutional protection. Article 40.5 expressly provides that the dwelling "is inviolable and shall not be forcibly entered save in accordance with law". As pointed out by the court, any such interference by law must adhere to the fundamental legal norms postulated by the Constitution. The court concluded that section 29 did not incorporate the fundamental principle of an independent decision maker and accordingly fell foul of the Constitution. The court also stated that it was deciding the matter on the case before it and that it had not considered or addressed situations of urgency. This is an important statement as the Statute Book contains a small number of other provisions which permit senior officers of the force to issue warrants. For the most part, these other provisions can be distinguished from the impugned section as they are restricted to circumstances of urgency requiring the immediate issue of a warrant that would render it impracticable to apply to a District Court judge. I will return to those provisions later.

In the period since the judgment was handed down, my efforts have been directed towards seeking to ensure the Garda Síochána has all the legislative back-up it requires to investigate terrorist and other serious criminal activity. That is the aim of the Bill before the House. I reassure Deputies that it is not the case that the Garda Síochána is without search powers following the court judgment. The Garda can avail of other statutory powers which allow applications for search warrants to be made to District Court judges. In addition, the law allows gardaí to enter premises, including dwellings, for the purpose of carrying out arrests or to protect the lives of persons within. The striking down of section 29 does, however, have the potential to hamper Garda investigations in situations of urgency where there is insufficient time to contact a judge. It is for this reason the Government has moved swiftly to replace the impugned provision with a constitutionally robust one that seeks to ensure the proper balance is struck between the preservation of the security of the State and the constitutional protection afforded.

Before turning to the provisions of the Bill, I would like to say a few words about its scope. In particular, I want to emphasise that it is focused on future investigations and does not - indeed, it could not - have any effect on existing section 29 warrants. Deputies will be aware that there is no legislative option open to the Government to address retrospectively any concern that may arise in respect of such warrants. Clearly, it is not possible for legislation to make something constitutional that the Supreme Court has declared to be unconstitutional. However, cases that might be affected by the terms of the judgment will be the subject of examination by the Director of Public Prosecutions, DPP, and the Garda Síochána to decide how to proceed. In cases where prosecutions are being considered, it is a matter for the DPP to decide whether to proceed. Where convictions have already occurred, it is a matter for the courts in the event of a challenge to such convictions to consider whether they should stand.

I acknowledge that, for the victims of crime, the possible quashing of convictions that their evidence may have helped to secure is distressing and difficult to accept. I acknowledge also that the possibility that they may be called on to participate in retrials will bring further anxiety. However, at the heart of any criminal justice system in a democracy is a requirement to try accused persons in due course of law. This necessarily includes a requirement to secure convictions on the basis of evidence gathered in conformity with the Constitution.

I will now outline the provisions of the Bill. It is a short Bill comprising just four sections. Section 1 directly addresses the judgment. It substitutes section 29 in its entirety to establish a new procedure for the issuing of search warrants under the 1939 Act that adheres to the principles set out by the court. In addition, I have taken this opportunity to update the section by incorporating some elements that have become standard in more recently enacted search warrant powers.

Before outlining the new procedure, let me say that the offences to which this section will apply remain almost unchanged and comprise any offence under the 1939 Act itself; any offence that is for the time being a scheduled offence under Part V of the 1939 Act, that is to say, which may be tried before the Special Criminal Court, examples including firearms and explosives offences and the offences of directing an unlawful or criminal organisation; any offence under the Criminal Law Act 1976, which includes inciting or inviting a person to join an unlawful organisation; and treason. Also covered are the inchoate offences of attempting or conspiring to commit or inciting the commission of one of the offences I have mentioned. The only change is the inclusion of the offence of incitement. I have included it to ensure all forms of criminal liability are covered.

The new procedure for the issuing of search warrants in respect of these offences is founded on the premise that, absent exceptional circumstances, applications for search warrants are best made to District Court judges. This is provided for in subsection (2). While the issuing of a search warrant does not constitute the administration of justice and need not, therefore, be restricted to judges, it is the case that judges are demonstrably independent of criminal investigations and their involvement provides the necessary impartial supervision emphasised in the Supreme Court judgment.

That said, circumstances may arise where a warrant is required immediately to prevent the destruction of vital evidence or to prevent the commission of a serious crime. In such circumstances and in the event that the District Court judge for the particular district cannot be contacted within the time available, it is necessary to provide a fall-back option while continuing to adhere to the fundamental principle of an independent decision maker. Such urgent circumstances may not arise frequently, but this does not absolve us of the responsibility of ensuring the Garda has the power to act when necessary.

Subsection (3) provides for this fall-back option. It allows a senior officer of the Garda Síochána to issue a warrant. By "senior officer", I am referring to a member not below the rank of superintendent. I would emphasise that an investigating garda will not simply be able to choose whether to apply to a District Court judge or a senior officer. He or she must apply to a District Court judge unless the very limited circumstances that permit an application to a senior officer are present.

Before detailing these limited circumstances, I should mention that the basic test for the grant of a search warrant applies to both judge-issued warrants and Garda-issued warrants under this section. In each case, before issuing a warrant to a sergeant, the issuer must be satisfied that "there are reasonable grounds for suspecting that evidence of, or relating to, the commission of an offence to which the section applies is to be found in any place". I have chosen the standard of "reasonable grounds for suspecting" as it mirrors the standard for obtaining search warrants contained in more recent statutes. For the purposes of this section, "place" is defined in non-exhaustive terms in subsection (12) and includes a dwelling.

I have decided not to carry forward the wording of the original section 29, which allowed a warrant to be issued in respect of "the intended commission of an offence". Instead, warrants under the replacement section may only be issued in respect of "the commission of an offence to which th[e] section applies". Deputies will recall that the offences to which the section will apply include attempts, conspiracies and incitement. I am concerned that to go further than this and to retain the concept of "intended commission" would give rise to a perception that search warrants could be authorised in circumstances where no overt act in furtherance of an offence had been committed.

Returning to the limited circumstances in which a senior officer may issue a warrant, these are set out in subsections (4) and (5). Subsection (4) contains the key two-part test that must be met before a senior officer may issue a warrant. First, the officer may not issue a warrant unless he or she is satisfied it is necessary for the proper investigation of an offence to which the section applies. Second, the circumstances of urgency giving rise to the need for the immediate issue of the warrant must be such as to render it impracticable to apply to a District Court judge. The short duration of such a Garda-issued warrant - 48 hours compared with the seven day duration of a judge-issued warrant - further emphasises that this option is restricted to genuinely exceptional circumstances.

Subsection (5) adds a further critical condition and addresses the heart of the Supreme Court judgment. It requires the senior officer to be independent of the investigation concerned. I would draw the attention of Deputies to subsection (12), which defines the meaning of "independent of" as it relates to an investigation. It is defined as "not being in charge of, or involved in, that investigation". In the context of the command structures within the Garda Síochána, this means an officer who is not in a position to issue directions in respect of that investigation. Essentially, what will be required in practice is that the investigating garda will apply to a senior officer in a parallel chain of command to his or her own.

Clearly, there are other persons who could potentially fulfil this fall-back role. For example, during the debate in the Upper House, the possibility of extending the role of peace commissioners so that they might step into the breach in urgent circumstances was mooted. Peace commissioners continue to have powers to issue warrants under a small number of statutes, but the policy in more recent times has been to limit the issuing of warrants in respect of serious crime to judges and, exceptionally, to senior gardaí. This is the approach I have followed in the Bill. I am satisfied it meets the requirements of the judgment and is further bolstered by subsection (11), which places a statutory obligation on the senior officer issuing the warrant to record in writing, either at the time or as soon as reasonably practicable thereafter, the grounds on which he or she did so. The making of such a record was identified specifically by the Supreme Court as best practice.

The remaining subsections deal with the execution of the warrant and the conduct of the search. A distinguishing feature as regards other search warrant provisions is that members of the Defence Forces may accompany members of the Garda Síochána during the search. This is a long-standing feature of section 29 and is an example of the Defence Forces being expressly authorised to act in aid of the civil authorities.

As is generally the case with search warrants, a warrant under this section will authorise the entry of the place named in the warrant, the search of both the place and any person found there and the seizure of anything found at the place or in the possession of a person present at the place. The right to enter is subject to the obligation to produce the warrant or a copy of it, if requested. This requirement is new to the 1939 Act and is intended as an added safeguard. The entry may be achieved by use of reasonable force, if necessary. The qualification of the force permitted as "reasonable" is new.

As is also generally the case with search warrants, subsection (8) provides that a warrant under this section will allow members of either force acting under the authority of the warrant to require any person present at the place where the search is being carried out to give to the members his or her name and address. An arrest power is provided in the event that any person obstructs or attempts to obstruct a member in the carrying out of his or her duties, fails to give a member his or her name and address or gives a false or misleading name or address.

The final element of section 1 that I would highlight is subsection (9). It creates an offence of obstructing or attempting to obstruct a member, refusing to give a name or address on request or giving a false or misleading name or address. The maximum penalties on conviction are a class A fine, which is a fine not exceeding €5,000, or imprisonment for a term not exceeding 12 months or both. Deputies will note this offence is summary in nature. This represents a change from the impugned section which allowed the offence to be tried on indictment with a maximum penalty on conviction of a term of imprisonment of five years. As this offence is ancillary to the search rather than a principal offence, I am satisfied it is appropriate that it be summary in nature. I will conclude my remarks on section 1 by saying that its contents represent very careful consideration of the Supreme Court judgment in consultation with the Attorney General and I am satisfied the new procedures incorporate the fundamental principle of an impartial decision maker as required by the Constitution.

Deputies will have noted that sections 2 and 3 concern search warrant provisions relating to suspected drug offences. As I mentioned, there are a small number of other statutory provisions which allow for Garda-issued warrants, generally in circumstances of urgency. One such important provision is that contained in section 8 of the Criminal Justice (Drug Trafficking) Act 1996, which permits a member not below the rank of superintendent to issue a warrant under section 26 of the Misuse of Drugs Act 1977. Certain conditions must be met, including that circumstances of urgency that require the immediate issue of a warrant arise that would render it impracticable to apply to a District Court judge or a peace commissioner.

The purpose of the amendments to the 1996 Act contained in section 3 of the Bill is to apply two further safeguards to the issuing of such warrants, first, to require the senior officer who issues a warrant to be independent of the investigation, and second, to require the issuing officer to record the grounds on which the warrant is issued. These amendments will bring Garda-issued warrants under section 26 of the 1977 Act into line with those issued under the replacement for section 29. Section 2 makes a minor consequential change to section 26 of the 1977 Act.

Section 4 is the final section of the Bill and includes the Short Title and the commencement arrangements. As Deputies will appreciate from my earlier remarks, I am anxious to ensure there is no undue delay in the commencement of this Bill once it is passed. For this reason section 4(2) provides that the Bill will come into operation the day after its passing.

Before concluding my remarks I would like to say a few words about search warrants generally. There is a complex series of approximately 300 Acts and statutory regulations, some dating from before the foundation of the State, that confer powers of search and seizure. There is no doubt that there is great variation between these provisions in each step in the search warrant process, including applications, issuing, execution and safeguards. At a very practical level there is no standard search warrant form. These are all matters which impact on operational effectiveness and efficient use of resources.

I referred in my earlier remarks to the consultation paper on search warrants prepared by the Law Reform Commission. That paper contains a lengthy list of provisional recommendations on reforming this area of the law. Of particular interest in the context of the Bill before the House is the commission's consideration of the extent to which technology could be used to apply for and to issue warrants, thereby possibly overcoming some of the difficulties that arise where a warrant is required immediately. I look forward to the Commission's final report in this regard and have asked officials to conduct a comprehensive review taking account of the commission's report when it is published.

I reiterate my call for the support of this House in ensuring the passage of this important Bill in order that it may become law before the summer vacation. I commend this Bill to the House.

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