Seanad debates

Monday, 3 July 2006

Criminal Justice Bill 2004: Committee Stage.

 

Derek McDowell (Labour)

In regard to amendment No. 5, I indicated my intention to bring to the District Court rules committee — the most relevant committee in regard to the issuance of warrants — my strong belief that warrants should have their expiry date written clearly on them. This will concentrate everybody's mind on what is at issue and will ensure such mistakes are not made in future. One would need to be something of a geek to carry in one's head a clear understanding of the Interpretation Act in terms of when a day begins and whether a part of a day is or is not involved.

There must, in the first instance, be certainty in the mind of the executing garda as to when he or she cannot further execute the warrant. Second, there must be certainty in the mind of the person to whom it is issued as to its validity on the day it is presented relative to the date on which it was issued. People are entitled to know, in layman's language, whether a warrant is valid on a particular day and when exactly it will expire. Gardaí in Templemore may be more than up to the task of working out the intricacies of the Interpretation Act in deciding whether a day starts at midnight or whatever. The latter point arose in the celebrated case to which Senator Brian Hayes referred. It is not reasonable, however, to expect ordinary men and women to be so familiar with the Interpretation Act that they can work out whether a warrant is still in effect, nor to ask them to accept the word of the Garda in this regard. I intend to ask the District Court rules committee to make a rule to the effect that warrants must carry a clear endorsement as to when they cease to have effect. This may involve some extra work in the District Court but it will achieve a great deal more clarity.

In regard to the provision relating to the maximum number of persons that may accompany the garda executing a warrant, I am not clear whether and to what extent it is useful to include this in statute form. I am not convinced that the endorsement of such information on a warrant would be beneficial from the point of view of investigations.

Amendments Nos. 7 and 8 have been overtaken to some extent by an amendment I made on Report Stage in the Dáil. I removed the provisions relating to Garda-issued warrants because I wanted time to consider the views expressed by the Morris tribunal on this issue. I wish to be in a position to explain the full gravity of what Mr. Justice Morris said at a time when I am at liberty to lay those remarks before the public and the Oireachtas. I appreciate that Senator Cummins prepared these amendments when the goalposts were located on a different section of the pitch. I have moved the goalposts in this regard.

Amendment No. 9 proposes a new subsection to provide that searches may last for up to seven days. I assume Senator Cummins has chosen this particular timeframe because search warrants generally remain valid for seven days. Are we to have a situation where a search of somebody's house for stolen goods could theoretically go on for seven days?

At the moment the law is that the Garda can enter the house within seven days and do its business promptly and effectively. I do not know if it would be regarded as reasonable that a warrant with a seven day life span should also authorise, effectively, the invasion of a house for seven days, unless it was a proportionate and reasonable search in the circumstances. If one was searching for body parts in a house it might be necessary to tear the entire place down on foot of a search warrant. If one was looking for sophisticated terrorist material it might be necessary to conduct a very extensive search. However, to produce a general rule that the period of search can correspond to the length of the warrant's life might be seen as conferring a disproportionate power on the Garda. The idea that one could move into a person's house for a week looking for documents might be considered questionable.

I will consider the definition of place overnight. The particular phraseology used by Senator Cummins states that place means a physical location and includes a number of things listed from (a) to (e). It finally refers to "any other place whatsoever", so the value of the amendment is that includes something which could shift place. Therefore (b), (c), (d) and (e) are the operative parts of amendment No. 10. The advice I have received from the Office of the Attorney General and the Parliamentary Counsel is that it is better to leave the word place there in its simple form.

The phrase at the end of amendment No. 10, "any other place whatsoever", is frequently used by lawyers. If one lists different examples of places and then adds "any other place whatsoever", as in the amendment, lawyers apply the eiusdem generis rule. This means the last phrase must be interpreted by reference to what went beforehand. This does not mean the last phrase has been broadened, it means something similar to the preceding phrases. I will consider this amendment overnight, but the Parliamentary Counsel thinks the suggested route may be a slippery slope.

Amendment No. 33 relates to matters to be expressed on the warrant. A number of those matters are covered by section 6, subsection (4). As I said, I intend to bring the matter to the District Court rules committee.

Senators Cummins, Brian Hayes and Jim Walsh raised points on evidence becoming inadmissible for technical reasons. We have a rule that is an exclusionary principle on unconstitutionally obtained evidence and it has been interpreted by the courts as having a strict meaning. Evidence obtained in conscious and deliberate violation of a person's constitutional rights is inadmissible. The courts have gone on to state the term "conscious and deliberate" can also relate to a case where a person acted in good faith. In the case referred to by Senator Brian Hayes, getting evidence a day outside the life of a warrant could be accidental. However, the exclusionary rule laid down by the courts states that this amounts to a conscious and deliberate violation of the constitutional right of the homeowner.

The Taoiseach has written to the Attorney General and me asking us to revisit this rigid exclusionary rule and to examine whether a statutory or constitutional rebalancing would bring about a situation where, when people act in good faith, evidence would not be excluded. The Attorney General and I have discussed this on a preliminary basis and it is a matter to which we hope to return when the hurly-burly of politics allows us ten minutes to discuss issues of such fundamental importance. The fact that a slight error made by a person while trying to do his or her job is deemed a conscious and deliberate violation excites the imaginations of ordinary people.

I partook in a legal case, as a lawyer, in which a warrant specified an address of a certain number in St. Andrew's House in Dublin. This was a mistake by a clerk or garda and it should have read St. Audoen's House. The question was, did the warrant authorise the search of the place at St. Audoen's House and was it a valid search authorised by the District Court? Most people find such cases ridiculous. The Garda named the person who lived in the house, there was a slip in the transposition of the manuscript from one document to another but in that case the evidence was excluded on the basis that there was not a valid order relating to St. Audoen's House. This is engraved in my mind because the judge said: "There is a St. Andrew's House, is there not? Does not a senior counsel have a set of chambers there?"

I sympathise with the general proposition and the Attorney General and I are considering whether we can revisit the strict exclusionary rule that is now in place.

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