Paul Connaughton (Galway East, Fine Gael)

I thank the Chair for the opportunity to speak. The Bill before us seeks to amend the law relating to the procurement of search warrants, particularly in light of the Supreme Court decision in Damache v. the Director of Public Prosecutions, DPP, in which it was held that section 29 of the Offences Against the State Act 1939 was unconstitutional. Another important feature of the Bill is the fact it amends provisions in regard to search warrants procured in regard to drug legislation.

The right to enter someone's home or premises is a significant power given to the Garda Síochána and other bodies and is one which must be treated with the utmost respect as it overrides people's constitutional rights to the enjoyment of their property. The greater good has often been cited as a reason for this interference, and drug legislation is an example of where overriding a person's property rights can be justified in terms of safeguarding the public from dangerous narcotics.

The court ruling in Damache v. the DPP found that the law as it stood was unconstitutional because it permitted a garda who was involved in an investigation to issue a search warrant, breaching a central rule of natural justice that no man is a judge in his own cause. It is imperative to note in this case that while a finding of unconstitutionality is retrospective, remedies usually operate prospectively only, and the application of the ruling will be applied only to those people whose cases have not been fully determined.

The ruling in that case is not the first time the validity of such warrants has been questioned. The Morris tribunal expressed what it termed "disquiet" over the fact that investigating gardaí in Donegal were empowered to issue a search warrant to themselves and recommended that warrants should be issued by a judge, with a senior garda only issuing a warrant in limited circumstances when time was of the essence. Under the new section 29, a judge of the District Court may issue a warrant if he or she is satisfied there are reasonable grounds for believing that evidence is to be found at the named location.

An important change relates to the circumstances in which a warrant may be issued by a garda. The power of a garda to issue a warrant is limited to where the garda believes the warrant is necessary and also that it is being sought in circumstances involving such urgency that it would be impractical to make an application for the warrant before a District Court judge. It also requires the issuing garda to be entirely independent of the investigation of the relevant offence. This is a welcome change to the legislation. The involvement of an outside garda is not only important in adhering to the principles of natural justice, it is also important in ensuring transparency in the legal process. It represents a double safeguard. Given the various incidents uncovered by the Morris tribunal in Donegal, such safeguards are both wise and necessary.

Search warrants are an important tool for the Garda but the entire justice system is damaged if such warrants are improperly used. Accordingly, there are strict provisions as to when a warrant can be sought, who can enter the premises and the timeframe for which the search warrant is valid. A search warrant issued by a District Court judge remains valid for one week from the date of issue while a warrant issued by a Garda superintendent is only valid for 48 hours. The provisions of a search warrant allows a garda acting on a warrant to require any person present in the venue being searched to give his or her name and address. Anyone who obstructs a garda carrying out a search warrant by refusing to give a name or address or by giving a false or misleading name or address can be arrested. A new provision in the Bill requires that the garda issuing the warrant must record in writing the grounds on which the warrant was issued, as well as the time.

The provisions of this Bill are a sensible reaction to the court ruling in the Damache case and will improve the security and transparency of the search warrant system. The necessity of changing the legislation simply underlines the importance that must be attached to measures such as search warrants that override people's constitutional rights to enjoy their property. I believe this Bill takes due cognisance of the need to safeguard the rights of all involved.

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