Thomas Pringle (Donegal South West, Independent)

I am glad to have the opportunity to contribute to this debate. As the Minister said, this is a short Bill which was introduced as a reaction to the striking down by the Supreme Court of section 29 of the Offences Against the State Act 1939. The Minister has described it as a necessary weapon for gardaí in their armoury in fighting serious crime. This language in itself indicates that the intention is that these provisions will be used, and probably used frequently.

The principle on which this section was struck down is very important and goes to the heart of natural justice. Much has been said in the past about bodies investigating themselves and the same principle should apply in regard to the issuing of search warrants. When an organisation investigates itself, whether it is a political or professional body, it can very quickly become a possibility that the intention is to find ways not to investigate. This could be out of sympathy for the individuals involved or due to the perceived need not to bring disrepute on an organisation. In the case of search warrants, the pressure will be on a garda not to refuse a warrant, even if he has misgivings about the intention of the warrant or the need for it.

The Minister said the striking down of section 29 has the potential to hamper investigations in situations of urgency where there may not be time to contact a judge. Surely there could also be a difficulty contacting a garda above the rank of superintendent in a parallel command, which in some cases could be in a different division altogether.

The Supreme Court ruling on the search warrants laid down the principles that should be involved. First, there is the principle of independence, where a warrant should be issued by a person who is independent and this person should also be satisfied on the basis of sworn information that reasonable grounds exist to issue that warrant. Second, there is a requirement to act judiciously. The granting of a search warrant is an act that is administrative in nature and is not an aspect of the administration of justice. That being so, there is a requirement that a warrant must be granted by a judge. Third, there is the principle of urgency, where there is some provision that a warrant should be issued by a member of the Garda. The court held that these situations were dependent on the existence of urgent circumstances, and this was an important consideration in determining the proportionality of legislation which could impinge on constitutionally protected rights.

These principles of independence, acting judiciously and restrictions on the issues around urgency have been identified by the courts in this issue. Subsection (12) of the Bill attempts to establish the independence of the garda who will issue the warrant in the special circumstances identified. This is described as a garda who is not in charge of or involved in the investigation. The Minister states that, in practice, this will be an officer in a parallel command but, with the best will in the world, will there ever be a circumstance where a warrant will be refused? It may be that there are never times when a judge refuses a warrant but at least that independence is clearly established when an application is being made. I believe there will be massive pressure on gardaí not to refuse a warrant and they should not be put in that situation. The pressure of colleagues looking for a warrant and having it refused would be too much to bear.

Mr. Justice Morris also highlighted these difficulties with section 29 in his report on the Donegal Garda situation, and it is for the very same reasons that this section was struck down. I do not believe this Bill will reduce those reasons and we could face the possibility of future challenges to the legislation. It would make more sense if the Bill sought to establish a panel of District Court judges who would be available at short notice to assist gardaí in their investigations. When someone might be put at risk of their liberty and facing serious possible charges, it is incumbent on the justice system that every step is taken to ensure natural justice is followed. There are enough District Court judges to enable a panel to operate and, in this day and age, I am sure acceptable conferencing facilities could be provided to have hearings held in such a way that would allow the warrant to be issued with the proper oversight and with the urgency that may be required. This would ensure the rights of everyone could be protected, gardaí would not be put in a difficult situation and it would not be possible for the legislation to be challenged in the future. This would be a better and more satisfactory way to proceed.

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