Michael McDowell (Dublin South East, Progressive Democrats)

I strongly agree with the Senator's proposal and if I had a free hand, I would accept the amendments. However, I reiterate the argument I made in the House that these amendments say to the Supreme Court that we do not like the decision made in 1990 and we agree with the two judges in the minority rather than the majority of three judges. We would, therefore, be legislating on the assumption that the two judges in the minority were correct and the majority view was incorrect. That can be done if the Attorney General advises that it is sound law. One can in theory challenge a judgment legislatively. However, the problem is if the amendment is made and the legislation is referred under Article 26 of the Constitution to the Supreme Court and it says the majority view still stands, then the entire Bill will be out the window. We discussed this in the Dáil and the general consensus was that it would be better to approach this on the basis of a single issue Bill, if the legislative option is taken.

There are three options. One is to wait for a case to come along and re-argue the issue but the problem with that is the Kenny case is clear and the DPP is independent of the Executive. The Executive, therefore, cannot ask him to re-argue the case. He may not wish to do it by himself but he is quite independent and the Government cannot say it will reopen the issue before the Supreme Court. The second way of dealing with it is to hold a constitutional referendum but even drafting the amendment could be quite difficult. The third and most preferable way is to attempt to restate the law in a way that is consistent with the minority view in the Kenny case and reflects Senator Cummins's amendments and, in those circumstances, to have the Bill enacted or referred to the Supreme Court. At least at that point an effort would have been made to mitigate the more rigid aspects of the ruling in the Kenny case.

I recall a case in which I was involved where a warrant was sought for an apartment in St. Audoen's House, which is across the river from the Four Courts. The District Court judge in the Bridewell must have looked at the detective's handwriting and the clerk who drew up the warrant wrote it out for St. Andrew's House, not recognising St. Audoen's because the handwriting was a little sketchy. The warrant was issued by the clerk to the gardaí. There was an office block on St. Andrew's Street called St. Andrew's House. When this came to light, the search and seizure of the property in St. Audoen's House was declared invalid because the warrant clearly did not authorise entry to that building. The gardaí did not notice this when they carried out the search of the apartment in St. Audoen's House because they assumed the clerk had transposed what they had sworn in their written information into the warrant. They conducted the search, found the evidence on which the prosecution was based and it was only during the trial that the difference between the two documents was noticed. It was held that the search on foot of the invalid warrant had to fall and the evidence seized under it was inadmissible. This is the type of case to which Senator Cummins refers because most people would think that is grotesque. That is the rigid position outlined in the Kenny case.