Ivana Bacik (Independent)

I will be brief because I have already referred to my opposition to this provision, which will change the way in which the search warrant procedure is dealt with in court. It is a sweeping provision which states, "An application under any enactment to a court, or a judge of a court, for a search warrant shall be heard otherwise than in public.", and which we should not pass lightly. Section 21 states that a judge may exclude members of the public in which an extension of detention hearing is taking place in order to avoid a risk of prejudice to an investigation. As a result, there is a requirement that the judge must be satisfied that it is necessary to do this in order to avoid such a risk before ordering the hearing to take place other than in public. It is unfortunate, therefore, that section 26 is a blanket provision under which all search warrant applications shall be heard otherwise than in public, without even a requirement that a judge must be satisfied that holding the hearing in public would prejudice the investigation.

This is a breach of the normal rule of criminal law which is that proceedings should be heard in public and I do not believe any reason for it is advanced in section 26. As stated in respect of section 21, I am willing to concede that where a judge is satisfied there is a risk to an investigation, he or she should be entitled to exclude members of the public. However, there is no justification of that nature provided in section 26. The latter constitutes a general departure - applied in a blanket way - under which an application for a search warrant, under any enactment, may be sought. I do not understand the rationale behind the inclusion of this provision.

People on any side with an interest in fair procedures should be concerned with regard to this section. The Minister will be aware that a search warrant application is a fairly routine matter in the District Court and that no information which might disclose the nature of operational matters is given in open court in any event.