David Norris (Independent)

I still got them on the record and that is what matters to me.

This is an interesting and significant Bill. As the Minister stated, it follows the case of Mr. Ali Charaf Damache v. The Director of Public Prosecutions and others. This is because a warrant issued under section 29 of the Offences against the State Act by a detective superintendent, whom I will not name but whose name is known to the Minister and published in the briefing document so excellently prepared for Members by the library staff.

I wish to correct one aspect of emphasis that might have appeared to emerge from the Minister's speech. The person was arrested on a charge of an attempt to commit murder. It related to the murder of a cartoonist in Denmark. How precisely he would have achieved that urgently from an address in Dublin is open to speculation. The charge, however, was subsequently mitigated to sending a threatening message by telephone, a very different matter indeed. I have not yet been murdered although eight or nine of my friends have been simply because they were gay. I have, however, frequently been threatened with it but I did not take any further action in most of those cases. Anyway, there is a difference relating to the application for the warrant and the question of urgency arises. Naturally, if there were a danger that someone was going to be murdered it would be very urgent that such an act should be interrupted and that the murderer should not be allowed to carry the act to completion. Although sending a threatening telephone message is regrettable, there are plenty of cranks around doing this all the time.

The ruling of the Supreme Court made three particular findings. The first related to the question of independence. The judgment was that a warrant should be issued by an independent person. This is obvious. Section 29 of the Offences against the State Act was declared to be unconstitutional in the Damache case because of the complete lack of independence. Although I am not impugning the reputation of the superintendent, not only was he connected to the investigation but he was in charge of it. He was issuing a warrant to himself. I hold a strong view on this because I was involved in a situation where the Cathaoirleach of the Seanad brought me before a star chamber hearing because I made specific accusations of a political nature against him which, it was subsequently discovered, turned out to be well-founded. I refused to continue attending the hearings on several grounds, particularly the denial of natural justice but also because I wanted to be allowed to introduce evidence and witnesses and to cross-examine and, most particularly, I wanted the then Cathaoirleach to vacate the Chair because otherwise the proceedings violated the principle of nemo iudex in causa sua: one cannot be a judge in one's own case. This theme was violated by the chief superintendent in this case.

Independence is vital and I am pleased that the Minister recognises this in the legislation and that it is recognised as one of the three principal findings of the Supreme Court. The finding was that the warrant should be issued by a person who is independent and the person should also be satisfied that, on the basis of sworn information, reasonable grounds exist upon which to issue the warrant. That was the view of the Supreme Court.

I have more trouble with the second ruling which found that the granting of a search warrant is an act that is administrative in nature and not an aspect of the administration of justice and, that being so, there is no requirement that a warrant must be granted by a judge despite that the person granting the warrant is obliged to act judicially. There appears to be a certain violation of common sense in this. I do not believe for one second that the granting of a search warrant is administrative in nature. That suggests it is something of little moment and that it is just like ticking a box, but it is a great deal more. The finding goes on to state that the person is obliged to act judicially. If it is not an aspect of the administration of justice then why should someone be obliged to act judicially? That is a complete and total contradiction. This simply shows that Supreme Court judges can say things that are contradictory. The second ruling is a complete nonsense.

The third ruling deals with urgency. When there really is urgency then it must be taken into account but the reason for the urgency should be noted at the time. There should be a contemporaneous note not only of the fact that it was urgent but of why and of the circumstances that rendered it urgent. It is not good enough to go back retrospectively and add these. That would be too much of a temptation.

There is a history here and the Minister has honestly acknowledged the difficulty with section 29. The Minister referred to the Morris tribunal. The fifth report of the Morris tribunal referred to disquiet about the use of section 29 in a celebrated series of situations in County Donegal and stated:

The danger exists that a warrant would be issued automatically and without proper investigation of the matter by the superintendent to whom the application is made if he or she is heading the investigation. There is a danger that the power to issue a Section 29 Warrant thereby becomes a mere formality in which the investigating sergeant might as well be empowered to issue a search warrant to himself.

That would be a very dangerous thing.

I wish to draw the attention of the Minister to a matter that was raised in this House. It shows how we can all be innocently gulled. A series of busts occurred throughout the Thirty-two Counties in the area of prostitution. The PSNI were heavily congratulated from various sides of the House for the wonderful work it carried out.