Alan Shatter (Dublin South, Fine Gael)
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I am pleased to present the Criminal Justice (Search Warrants) Bill 2012 to the House. This is a short Bill, but an important one. As its Title suggests, it concerns search warrants, an essential tool in the effective investigation of crime. The primary purpose of the Bill is to restore, in updated form, the search warrant provision in section 29 of the Offences against the State Act 1939, which was found to be repugnant to the Constitution by the Supreme Court.

The relevant judgment was delivered on 23 February this year in the case of AH Charaf Damache v. the Director of Public Prosecutions, Ireland and the Attorney General. I think it would help the House in its consideration of the Bill if I outlined the background to the judgment and its main elements. The proceedings challenging the constitutionality of section 29 were initiated by an individual awaiting trial on a charge of making threatening telephone calls in connection with an investigation into alleged international terrorism. The alleged terrorist activity related to a conspiracy to murder Lars Vilks, a Swedish cartoonist whose drawings depicted the Islamic prophet Mohammed with the body of a dog and which provoked serious unrest in a number of Islamic countries. The individual was charged on foot of evidence gathered under the authority of a search warrant issued under section 29.

For the information of Members, I will read the relevant part of section 29. It states:

Where a member of the Garda Síochána not below the rank of superintendent is satisfied that there is reasonable ground for believing that evidence of or relating to the commission or intended commission of an offence [..] is to be found in any place [..] he may issue to a member of the Garda Síochána not below the rank of sergeant a search warrant under this section in relation to such place.

The warrant at the centre of the proceedings was issued by the superintendent who was not only in charge of the investigation but actively involved in it. It authorised the search of the individual's home. There is no suggestion that the investigation was not properly carried out. The investigators operated in good faith within the law as it applied at the time.

The case submitted on behalf of the applicant was that section 29 was repugnant to the Constitution as it permitted a member of the Garda Síochána who had been actively involved in a criminal investigation to determine whether a search warrant should issue with regard to his or her own investigation. The defence submitted that as a matter of constitutional justice a decision authorising interference with an individual's right to privacy should, at a minimum, be made by someone independent of the investigation. The Supreme Court, on appeal, granted the declaration that section 29 was invalid, on the ground that it permitted a search of a dwelling on foot of a warrant that was not issued by an independent person. The court identified a number of important aspects to the issuing of search warrants which have assisted in shaping the approach adopted in the Bill before the House today.

First, in order for the process of obtaining a search warrant to be meaningful, it is necessary that the person authorising the search is able to assess the conflicting interests of the State and the individual in an impartial manner. Of note in this regard is that the court accepted that the issuing of a warrant is an administrative act rather than the administration of justice and therefore is not required to be performed by a judge. Second, the court emphasised that the dwelling is afforded special constitutional protection. Article 40.5 expressly provides that the dwelling is "inviolable and shall not be forcibly entered save in accordance with law". As pointed out by the court, any such interference by law must adhere to the fundamental legal norms postulated by the Constitution. The court concluded that section 29 did not incorporate the fundamental principle of an independent decision-maker and accordingly fell foul of the Constitution.

The court also stated that it was deciding the matter on the case before it and that it had not considered or addressed situations of urgency.

This is an important statement, as the Statute Book contains a small number of other provisions which permit senior officers of the force to issue warrants. For the most part these other provisions can be distinguished from the impugned section as they are restricted to circumstances of urgency requiring the immediate issue of a warrant that would render it impracticable to apply to a District Court judge. I will return to these provisions later.

In case there is a perception that the finding of unconstitutionality should have been anticipated and addressed proactively, I will say the following. It must be recalled that this particular search power formed part of the panoply of legislation designed to prevent terrorist groups from subverting the institutions of the State and indeed the State itself. It is regrettable that we have to have such provisions on our Statute Book but they are there as a response to a real threat posed by self-appointed, self-seeking groups and individuals who have no ambitions for the State or its systems apart from a destructive one. Members of this House may be aware that the Supreme Court referred in its judgment to the recommendation of the Morris tribunal with regard to section 29. The Morris tribunal did consider the proportionality of section 29. However, unlike a number of other recommendations in which Mr. Justice Morris recommended that specific action be taken, his recommendation for section 29 warrants called for "urgent consideration" to be given to changes in this area, rather than making an absolute recommendation that changes be made.

It is fully accepted that in fulfilling his role as a tribunal of inquiry, it was not a matter for Mr. Justice Morris to adjudicate on the constitutionality of legislative provisions. However, it is worth noting that in the relevant part of his report, not only did he not raise the prospect of the section being found unconstitutional; he pointed out that the issuing of a search warrant for a citizen's dwelling by a Garda officer rather than by a judge "is an exception allowed by our Constitution". The potential for section 29 to be found unconstitutional did not feature in the recommendation made by Mr. Justice Morris. The fact is that the provision had been operating for many decades, in its original form since 1939 and in its amended form since 1976. I acknowledged that Mr. Justice Morris recommended that "urgent consideration" be given to vesting the power to issue warrants under section 29 in judges of the District or Circuit Court. However, significantly, he also stated that a residual power could perhaps still be vested in a senior officer of the Garda Síochána to be used in exceptional circumstances. It would be quite wrong, therefore, to make any causal link between the provision being found unconstitutional and the action that was taken in response to that recommendation.

Legislative amendment as recommended by Mr. Justice Morris was urgently considered by my predecessor. However, it was not proceeded with, as the Minister was advised by the Garda Commissioner that to change the system would undermine the operational effectiveness of the Garda Síochána, particularly in situations in which urgent action is required to save lives or to react rapidly to serious crime or terrorism. I must also mention that the Law Reform Commission, following a submission from the Department, included an examination of search warrants in its work programme. The commission published its consultation paper on search warrants and bench warrants in December 2009. That consultation paper, which was published after the Morris tribunal recommendation, dealt specifically with the question of the constitutionality of search warrants issued by persons other than judges. It concluded that:

In light of... case law, it appears to be well established that issuing search warrants is an administrative, as opposed to a judicial, function. Therefore issuing can be carried out by a person other than members of the judiciary, such as peace commissioners and members of the Garda Siochana, and this does not offend the Constitution.

In the circumstances, there was clearly no basis for advising Ministers that there were grounds for concern about the constitutionality of section 29 warrants.

In the period since the judgment was handed down, my efforts have been directed towards seeking to ensure that the Garda Síochána has all the legislative back-up it requires to investigate terrorist activity and other serious crime. That is the aim of the Bill before the House. I take this opportunity to reassure Members that it is not the case that the Garda Síochána is without search powers following the court judgment. Gardaí can avail of other statutory powers which allow applications for search warrants to be made to District Court judges. In addition, the law allows gardaí to enter premises, including dwellings, for the purpose of carrying out arrests or to protect the lives of persons within. The absence of section 29 does, however, have the potential to hamper Garda investigations in situations of urgency in which there is insufficient time to contact a judge. It is for this reason that the Government and I have moved swiftly to replace the impugned provision with a constitutionally robust one which seeks to ensure that the proper balance is struck between the preservation of the security of the State and the constitutional protection afforded to an individual's dwelling.

Before turning to the provisions of the Bill, I will say a few words about its scope. In particular, I emphasise that it is focused on future investigations and does not - indeed, could not - have any effect on existing section 29 warrants. Members will be aware that there is no legislative option open to the Government to retrospectively address any concerns that may arise with regard to such warrants. Clearly, it is not possible for legislation to make something constitutional which the Supreme Court has declared to be unconstitutional. However, cases that might be affected by the terms of the judgement will be the subject of examination by the Director of Public Prosecutions and the Garda Síochána in order to decide how to proceed. In cases in which prosecutions are being considered, it is a matter for the DPP to decide whether to proceed. Where convictions have already occurred, it is a matter for the courts, in the event of a challenge to such convictions, to consider whether they should stand.

I acknowledge that for the victims of crime, the possible quashing of convictions that their evidence may have helped to secure will be distressing and difficult to accept. I acknowledge also that the possibility that they may be called on to participate in a retrial will bring further anxiety. But at the heart of any criminal justice system in a democracy is a requirement to try accused persons in due course of law. This necessarily includes a requirement to secure convictions on the basis of evidence gathered in conformity with our Constitution.

I will now outline to the House the main provisions of the Bill. Section 1 substitutes section 29 in its entirety in order to establish a new procedure for the issuing of search warrants under the 1939 Act, which will adhere to the principles set out by the Supreme Court. In addition, I have taken this opportunity to update the section by incorporating some elements that have become standard in more recently enacted search warrant powers. Before outlining the new procedure I must point out that the list of offences to which this section will apply remains almost unchanged and comprises the following: any offence under the 1939 Act itself; any offence that is for the time being a scheduled offence under Part V of the 1939 Act - that is to say, which may be tried before the Special Criminal Court, including such offences as directing an unlawful or criminal organisation; offences under the Criminal Law Act 1976, which include inciting or inviting a person to join an unlawful organisation or aiding a person's escape from prison; and treason. Also covered are the inchoate offences of attempting or conspiring to commit or inciting the commission of one of the principal offences. The only change is the inclusion of this latter offence, that of incitement. I have included it to ensure that all forms of secondary liability relating to the principal offences are covered.

The new procedure for the issuing of search warrants in connection with these offences is founded on the premise that, absent exceptional circumstances, applications for search warrants are best made to District Court judges. This is provided for in subsection (2). While, as I have said, the issuing of a search warrant does not constitute the administration of justice and need not, therefore, be restricted to judges, it is the case that judges are demonstrably independent of criminal investigations and their involvement provides the very necessary third party supervision emphasised in the judgment. That said, circumstances may arise in which a warrant is required immediately to prevent the destruction of vital evidence or the commission of a serious crime. In such urgent circumstances, and in the event that the District Court judge for the particular district cannot be contacted within the time available, subsection (3) allows a senior officer of the Garda Síochána to issue a warrant. By senior officer I am referring to a member not below the rank of superintendent. I emphasise that an investigating Garda will not simply be able to choose whether to apply to a District Court judge or a senior officer; he or she must apply to a District Court judge unless the very limited circumstances which permit an application to a senior officer are present.

Before detailing these limited circumstances, I should mention that the basic test for the granting of a search warrant applies to both judge-issued warrants and Garda-issued warrants under this section. In each case, before issuing a warrant to a sergeant, the issuer must be satisfied that "there are reasonable grounds for suspecting that evidence of, or relating to the commission of an offence to which the section applies is to be found in any place".

I have chosen the standard of "reasonable grounds for suspecting" as it mirrors the standard for obtaining search warrants contained in more recent statutes.

I have decided not to carry forward the wording of the original section 29, which allowed a warrant to be issued in relation to "the intended commission of an offence". Instead, warrants under the replacement section may only be issued in relation to the commission of an offence to which the section applies. Members will recall that the offences to which the section will apply include attempts, conspiracies and incitement. I am concerned that to go further than this and to retain the concept of intended commission would give rise to a perception that search warrants could be authorised in circumstances where no overt act in furtherance of an offence had been committed.

Search warrants relate to places. For the purposes of this section "place" is defined in non-exhaustive terms in subsection (12) and includes a dwelling. The language of the original section 29 regarding the meaning of place was the subject of some criticism. It referred to "any place whatsoever" and in doing so gave rise to the perception in some quarters that it was unusually broad. While that was not the case, I have taken this opportunity to update the language.

Returning to the limited circumstances in which a senior officer may issue a warrant, these are set out in subsections (4) and (5). Subsection (4) contains the key two-part test that must be met before a senior officer may issue a warrant. First, the officer may not issue a warrant unless he or she is satisfied that it is necessary for the proper investigation of an offence to which the section applies. Second, the circumstances of urgency giving rise to the need for the immediate issue of the warrant render it impracticable to apply to a District Court judge. The short duration of such a Garda issued warrant, 48 hours, when compared to the seven day duration of a judge issued warrant further emphasises that the option is restricted to exceptional circumstances.

Subsection (5) adds a further crucial condition and addresses the heart of the Supreme Court judgment. It requires the senior officer to be independent of the investigation concerned. I draw the attention of Members to subsection (12), which defines the meaning of "independent of" as it relates to an investigation. It is defined as "not being in charge of, or involved in that investigation". In the context of the command structures within the Garda Síochána this means an officer who is not in a position to issue directions on the investigation. Essentially, what will be required in practice is that the investigating Garda will apply to a senior officer in a parallel chain of command to his or her own.

A final safeguard arising from the judgment is contained in subsection (11). This places an obligation on a senior member who authorises a warrant under the section to either record the grounds at the time or as soon as reasonably practicable thereafter. As noted by the Supreme Court it is best practice to keep a record of the basis on which a search warrant is granted.

The remaining subsections deal with the execution of the warrant and the conduct of the search. A feature that distinguishes a warrant under this section from other warrants is that members of the Defence Forces may accompany members of the Garda Síochána during the search. This is a long-standing feature of section 29 and is an example of the Defence Forces being expressly authorised to act in aid of the civil authorities.

As is generally the case with search warrants, a warrant under this section will authorise the entry of the place named in the warrant, the search of both the place and any person found there and the seizure of anything found at the place or in the possession of a person present at the place. The right to enter is subject to the obligation to produce the warrant or a copy of it, if requested. This requirement is new to the 1939 Act and is intended as an added safeguard. The entry may be achieved by use of reasonable force, if necessary. Again the qualification of the force permitted as "reasonable" is new.

As is also generally the case with search warrants, subsection (8) provides that a warrant under this section will allow members of either force acting under the authority of the warrant to require any person present at the place where the search is being carried out to give to the member his or her name and address. An arrest power is provided in the event that any person obstructs or attempts to obstruct a member in the carrying out of his or her duties, fails to give a member his or her name and address or gives a false or misleading name or address. The final element of section 1 that I would like to highlight is subsection (9). It creates an offence of obstructing or attempting to obstruct a member, refusing to give a name or address on request or giving a false or misleading name or address. The maximum penalties on conviction are a class A fine, which is a fine not exceeding €5,000, imprisonment for a term not exceeding 12 months or both. Members will note that the offence is summary in nature. This represents a change from the impugned section which allowed the offence to be tried on indictment with a maximum penalty on conviction of a term of imprisonment of five years. As this offence is ancillary to the search rather than a principal offence, I am satisfied that it is appropriate that it be summary in nature.

I conclude my remarks on section 1 by noting that its contents represent a very careful consideration of the Supreme Court judgment in consultation with the Attorney General. I am satisfied that the new procedures incorporate the fundamental principle of an impartial decision maker as required by the Constitution.

Members will have noted that sections 2 and 3 of the Bill concern search warrant provisions in suspected drug offences. As I mentioned earlier, a small number of other statutory provisions allow for Garda issued warrants, generally in circumstances of urgency. One important such provision is that contained in section 8 of the Criminal Justice (Drug Trafficking) Act 1996 which permits a member not below the rank of superintendent to issue a warrant under section 26 of the Misuse of Drugs Act 1977. Certain conditions must be met, including that circumstances of urgency requiring the immediate issue of a warrant arise such that it would be impracticable to apply to a District Court judge or a peace commissioner. The purpose of the amendments to the 1996 Act contained in section 3 of the Bill is to apply two further safeguards to the issuing of such warrants, first, to require the senior officer who issues a warrant to be independent of the investigation and, second, to require the issuing officer to record the grounds on which he or she issued the warrant. These amendments will bring Garda issued warrants under section 26 of the 1977 into line with those issued under the replacement for section 29. Section 2 makes a minor consequential change to section 26 of the 1977 Act.

Section 4 is the final section of the Bill. It includes the Short Title and the commencement arrangements. As Members will appreciate from my earlier remarks, I am anxious to ensure there is no undue delay in the commencement of this Bill once it has been passed. For this reason section 4(2) provides that the Bill will come into operation the day after its passing. No commencement order will be required.

Before concluding my remarks I would like to take the opportunity to refer to a general review of search warrants that is to be conducted by my Department. This Bill is limited to addressing the implications of the Supreme Court judgment. There is, however, a complex series of approximately 300 Acts and statutory regulations, some dating from before the foundation of the State, that confer powers of search and seizure. It is timely to conduct a general review of such powers. This review and any subsequent legislative proposals will be informed by the forthcoming report of the Law Reform Commission on the subject.

In conclusion, I ask for the co-operation of this House in the passage of this Bill as speedily as possible in order that it may become law before the summer recess. I commend the Bill to the House.

Averil Power (Fianna Fail)
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I welcome the Minister to the House to discuss this Bill. Given the nature and public importance of the cases involved, I assure him that Fianna Fáil will co-operate in bringing it through the House before the summer recess. We fully understand the importance of providing certainty in this area. It is important that gardaí are given the powers they require to counter terrorism and firearms offences in particular and to ensure people are brought to justice. I know that is a sentiment all Members will share.

I hope the Bill receives all-party support. I say this in the knowledge that Sinn Féin has consistently opposed the Special Criminal Court and the use of section 39 of the Offences against the State Act. Although Fine Gael and the Labour Party in Government back the Bill, they have taken very different positions on previous legislation, such as the Criminal Justice (Amendment) Act 2009, which extended the use of the Special Criminal Court to gangland crimes in exceptional circumstances and which my party regarded as an essential measure in the aftermath of a trial in Limerick. Evidence from that case is that it is within the scope of terrorists and criminal gangs to intimidate juries and ensure defendants are able to evade justice. Our support for the Bill is consistent with our general support for the need to give the Garda Síochána and prosecuting authorities in the State, the DPP, the powers they need to ensure people are brought to justice, particularly those associated with terrorism, firearms offences and drug trafficking.

In all these matters, it is important there is a proper balance and the Minister outlined the balance in the Bill in his opening address. Conflicting interests are at play in respect of the common good, public interest, ensuring people are prosecuted and that the Garda Síochána can obtain evidence, particularly in a matter of urgency where it could be destroyed. Regardless of the offence someone is suspected of committing, everyone is entitled to constitutional justice and to have rights protected. In the context of this Bill, the protection in the Constitution regarding the inviolability of the dwelling is a key consideration. When talking about any restriction of rights, it is important the balance achieved is proportionate. Rights should be impaired as little as possible and the objective should justify the means. We are satisfied the Bill achieves that, which is why we support it. The Damache case highlights two considerations, one being urgency and the need for the Garda Síochána to act when there is a risk of the destruction of evidence. A garda may be outside a house at 3 a.m. and may have reason to believe there are firearms inside the house and that, if he or she waits three or four hours for a warrant from a District Court judge, the evidence will be destroyed in the meantime. It is important gardaí have the ability to act if, in exceptional circumstances, they cannot get a warrant from a judge. The Damache case highlights how the previous legislation did not achieve the appropriate balance in respect of independence. In making sure an independent judgment is made on the exceptional nature of the circumstances and that urgency exists, it is important a judgment is made by a superintendent who is not part of the investigation. I welcome the fact that the legislation will address this point.

The Minister went through the scope of the Bill in his opening remarks. The Bill is restrictive and, if the Garda gets a warrant on this basis, the period of time in which it must be used will be much shorter, 48 hours compared with a week for a warrant from a judge. That is appropriate. A period of 48 hours is more consistent with an urgent need than one week. The Garda must be satisfied, on reasonable grounds, that it would be impractical to make an application to a judge and that there is an urgent need to enter the premises immediately. There must be genuine and real risk associated with not doing so.

Fianna Fáil supports the Bill, understands the urgency and hopes for all-party support. It is important the message goes out from the Seanad that Members of all parties stand united in tackling the types of crimes listed in the Offences against the State Act. The 2009 Act was directed at tackling gangland crime. Fianna Fáil will support the Bill passing all Stages as soon as possible. I share the concern of the Minister at the cases that may be affected by the weakness in the previous legislation. I hope the effect will be limited and that courts will find sensible policy grounds for decisions on those cases. We have an opportunity to make sure the system is right and we will co-operate in doing so as soon as possible.

Paul Bradford (Fine Gael)
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I welcome the Minister to the House and I wish him well in the promotion of this important legislation. I thank the Fianna Fáil spokesperson for her expression of support on behalf of her party.

Since the foundation of the State, 99.99% Garda Síochána activity has always put the preservation and safety of the State and its citizens first. With equal certainty, 100% of subversives and terrorists have put the destruction of the State first. We must reflect upon that balance. In its promotion of law and order, the State does best when it practises law and order. Therefore, where an anomaly is found, it must be corrected. When the Supreme Court finds an item of legislation to be improper, our duty is not just to respond to the Supreme Court but to set up the checks and balances to ensure order prevails.

The most important point the Minister made was that his efforts have been directed to seeking to ensure the Garda Síochána has all the backup it requires to investigate terrorist activity and other serious crimes. That is the aim of the Bill. The Minister goes on to say that the Government has moved swiftly to replace the impugned provision with a constitutionally robust measure to ensure the proper balance is struck between the preservation of security and the constitutional protection afforded to an individual dwelling. In this State more than any other across the globe, we put a ring of steel around a person's private property. Only in extreme circumstances is the ring of steel allowed to be breached. Legislation is now tackling the anomaly or difficulty found by the Supreme Court. I welcome the clarification brought about by the Minister. We welcome the safeguards. We can all be wise in hindsight but it is always preferable for District Court judges to adjudicate on the issuing of a search warrant. That will be the norm under the new legislation. As a previous speaker said, where urgent circumstances apply, such as at 4 a.m. outside a house, and where there is a genuine fear of evidence being disposed of and suspects disappearing, there must be an option for an immediate issuing of a search warrant. Under these provisions, the search warrant will be decided upon by a neutral member of the Garda Síochána, described by the Minister as a parallel officer. That will provide the level of balance and fairness required.

The fact that the State is now more peaceful that it has been over the past 30 or 40 years and that the campaign of anarchy against the State by the Provisional IRA and others has almost disappeared, is welcome. Certain groups such as dissident republicans, as they like to term themselves, bear nothing but ill against the State. There is also an unprecedented number of people involved in the drugs trade. It is not a problem we envisaged in 1939 but it has grown dramatically and is of serious concern to all. While such concerns remain, we must have on our Statute Book the tough provisions required to maintain safety and promote law and order. Alongside those provisions, we must have balance and fairness and we must ensure the provisions are constitutionally sound. That is what the legislation is about and I welcome it. I welcome that the Minister is responding so quickly to the judgment because the first thing the Minister needs in respect of his portfolio and the broader law and order agenda is certainty and clarity. The passing of the Bill will provide these necessary qualities and therefore I welcome the Bill and wish it a speedy passage.

David Norris (Independent)
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I welcome the Bill to the House. I wish to place on record my regret that there was not a proper Order of Business today. This was regrettable indeed. I also wish to state without any impertinent reference to the present Minister's beliefs that I have challenged on several occasions the saying of the prayer because I regard it as sectarian. Although I am a believing Christian myself I believe in these circumstances today it simply highlights the absurdity of the situation. I am not expecting the Minister to take one position or another but we should make an effort to separate church and State. I regret these two matters and I wish to put them on the record before I say my few words.

Denis O'Donovan (Fianna Fail)
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Neither matter is appropriate to the Bill.

David Norris (Independent)
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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.

Paschal Mooney (Fianna Fail)
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Senator, your time is almost up.

David Norris (Independent)
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Unfortunately, it turned out that the vast majority of people whose houses were broken into by the police on foot of warrants were completely innocent. This highlights the fact that we must be very careful. A case is under way at the moment involving a Mr. Ted Cunningham. He is using a challenge to section 29 to obtain a situation where the Court of Criminal Appeal has quashed the convictions and ordered a retrial.

The Minister has referred to conditions of urgency and that urgency should be noted at the time. He noted that Mr. Justice Morris in his comments on section 29 warrants has called for urgent consideration to be given to changes in this area rather than making an absolute recommendation that these changes be made. I well remember this distinction being made by the leader of a previous, Fianna Fáil Government, a good friend of mine.

Paschal Mooney (Fianna Fail)
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You are now almost up to ten minutes, Senator.

David Norris (Independent)
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I am concluding now. I wish to state without any intention of being provocative that this is a Jesuitical distinction between an urgent consideration and an absolute one. If it urgent it should also be absolute.

Aideen Hayden (Labour)
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I welcome the Minister to the House. I congratulate him in the first instance on the speed with which he has brought this legislation before the House. It is important to note the Supreme Court decision in the Ali Charaf Damache case was only delivered on 23 February of this year. I also stress that the House could pass on its congratulations to the parliamentary draftsmen, who must have burned the midnight oil to bring this legislation before us.

I also congratulate the Minister on a very thorough and comprehensive justification of the reason for bringing this legislation before us today and for the arguments he persuasively made as to why this a matter of urgency. Generally, we would all without exception say we are very proud to have the Constitution we have in this country. Given the history of this State, particularly in the context of the conflicts we have had in a small country of such recent origin, we have managed, in spite of everything, to retain a very peaceful society. We have a police force and a body of legislation of which we can be proud. Most importantly, we have a Constitution which operates to protect the interests both of the individual and the wider society.

What is before us today is about exactly that, namely, the balance of the rights of the individual and his or her right to have the sanctity of the home protected against the wider rights of the society as a whole. When we find ourselves in a position where we have to perhaps rush more quickly than we would have liked into legislation, it behoves us to ensure we are doing what we do in the most prudent and comprehensive way and that we satisfy ourselves we are not making a mistake that may come back to haunt us in the course of time.

In the context of this Bill, I am proud to note that not only has the Minister dealt with the situation he faced in the context of the Supreme Court decisions but he has made necessary improvements to the wider body of legislation. In particular, I congratulate the Minister on the changes he has made. For example, where the original section 29 allowed a warrant to be issued in regard to the intended commission of an offence, he has narrowed that down to the commission of an offence, which is an important safeguard for the average citizen. In regard to another narrowing of the rights of those against whom warrants may be issued, the Minister has introduced the word "reasonable" in regard to the amount of force that can be effected during an entry under a warrant. These are important changes into the wider body of law. I also note the Minister's commitment at the end of his statement to addressing the wider area of warrants and bench warrants in line with the Law Reform Commission's report, which is also a very important matter.

I share the Minister's concerns in regard to some of those persons who will be distressed by the situation in which they find themselves in the context of some of the judgments that will perhaps be found to be repugnant to the Constitution under the old section 29. As he rightly stated, it is important that every conviction in this State is in every respect a clean conviction and one that is not repugnant to the constitutional rights of the individual, even though, unfortunately, there may be persons who walk away in situations where the wider society would accept they should not.

The question we ask is whether this is balanced legislation and whether it addresses the issues that arose in the course of the Supreme Court judgment. I believe it does. The Minister has managed to ensure that the warrants issued in respect of this legislation are issued on good and reasonable grounds, with the protection of safeguards for the individual. Therefore, I believe he has managed to strike that balance which we would all hope to strike as a mature and reasonable society, namely, between the rights of the individual and the rights of the wider society to protect itself in situations where we are not dealing with minor matters but with serious crimes relating to drug offences, firearms offences and offences against the security of the State. That latter point should not be forgotten even though it is some years since we have had to concern ourselves to any great extent with that matter.

Again, I congratulate the Minister on what is very thoughtful, well delivered and well thought out legislation.

David Cullinane (Sinn Fein)
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I welcome the Minister back to the House. We will spend the greater part of this week and perhaps next week in the Seanad debating what I would see as one of the most draconian pieces of legislation on the Statute Book, namely, the Offences against the State Act. It is an embarrassment to any state which claims to be a modern progressive democracy and republic that we would have such a piece of legislation on our Statute Book.

The Act provides for remarkable powers which are intrusive, excessive and disproportionate. As the Minister knows, there have been many calls for the Offences against the State Act to be done away with. The powers and provisions that exist on the criminal law books are more than sufficient, in our view. The Offences against the State Act 1939 has a highly corrosive effect on human rights, democratic life and the safety and well-being of citizens in this State. That is what we are being asked to vote on today.

If the Government really wanted to promote and protect the safety of the public, financially and practically the best way to do this would be to resource the Garda Síochána, the forensic laboratory, the Director of Public Prosecutions and the courts to ensure we can enforce ordinary criminal justice legislation. There will be an opportunity tomorrow to deal further with the difficulties in non-jury trials and the Special Criminal Court. However, I am of the view that the difficulties identified in the Damache and Cunningham cases, which found the old section 29 unconstitutional, flag up once more the need to do away with the Offences against the State Act. This is something many organisations, including my party and the Irish Council for Civil Liberties, and many individuals have called for.

Perhaps it is with the benefit of hindsight, but it is manifestly improper and unjust that the investigating senior officer would have it within his or her power to provide a warrant in a case for which they are responsible. The reality is that a judge cannot judge himself or herself, which we would all accept, so how can we assume a garda seeking a warrant for an investigation in which he or she is involved will do anything other than provide a warrant to that end. There must be independence and oversight as well as accountability and judicial scrutiny, which is vital to protect against arbitrary interference in the rights of the individual.

One merely has to consider the incidents at the centre of the Morris inquiry. In that case, Mr. Justice Morris expressed his concern at the case and the regularity with which gardaí obtained warrants under section 29. It was his view that the power to issue search warrants should be vested in judges and that modern communications technology could facilitate this process. The power to issue warrants under section 29 should generally be vested in the judges of the District Court or Circuit Court. This is in keeping with best modern practice as exemplified in judgments of the European Court of Human Rights and judicial trends in Canada and New Zealand. Exceptions to this should be limited and sparing. The European Court of Human Rights takes a strict approach to the issuing of search warrants without judicial supervision. There must be very strict limits on such powers. There should be clear reasons that such an interference is necessary before the infringement on privacy can be considered proportionate to the legitimate aim pursued.

We have, therefore, some difficulties with the Bill, as the Minister will appreciate. We are not minded to oppose the legislation on Second Stage and we will consider tabling amendments as we progress to Committee Stage. I understand my colleague, Deputy Jonathan O'Brien, will table a number of amendments in the Lower House to deal with some of our concerns. The Minister knows my own view and that of my party on the Offences against the State Act. For many years, we have consistently sought its abolition. We had that conversation recently concerning a Bill that was discussed a few weeks ago. The Minister will be aware of my party's position and we have given notice that we will be tabling a number of amendments to this Bill.

Colm Burke (Fine Gael)
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I welcome the Minister to the House and thank him for a comprehensive presentation on the need for this amending legislation. I welcome the Bill but have one or two observations to make on the question of independence. I note that District Court judges will now be involved in issuing warrants, except in exceptional circumstances.

Following the Morris tribunal's recommendations, the Law Reform Commission referred to the role of peace commissioners, which has almost disappeared in real terms. A superintendent who signs a warrant must be independent of the investigation but I wonder if that provision could be re-examined at some future date. It might be more useful for peace commissioners to deal with this matter rather than leaving it to someone who is working within the same group of people. A superintendent may not be involved in the investigation but is still part of the overall Garda force. Perhaps that could be looked at by the courts at some future date. I am not saying now but perhaps in ten, 15 or 20 years time, a court could say that there is not a clear distinction because the person issuing the warrant is in the same organisation as the person who is executing a search on foot of the warrant. I wonder if that issue can be examined.

It is time that we examined the role of peace commissioners. What is their role? There is a disconnect because Garda stations are not manned 24 hours a day in many rural areas. We should therefore re-examine the role of peace commissioners with a view to expanding it. I know there are other priorities at present, but this matter might be put on the agenda in future.

The Minister referred to the amount of legislation which contains the right to search, and the need to undertake a comprehensive review of that area. Such a proposal is to be welcomed as we need a more comprehensive overview. The Bill before us responds to a Supreme Court decision and is urgently required to ensure that gardaí are not restricted in any way in their work of protecting the citizens of this country.

While I welcome the legislation which has my full support, I would ask the Minister to consider the issues I have raised at some future stage.

Paschal Mooney (Fianna Fail)
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As nobody else is offering, I call on the Minister to conclude.

Alan Shatter (Dublin South, Fine Gael)
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I will start by thanking Senators for addressing the Bill and for their substantial support of its provisions. In particular, I wish to thank Senator Power for her contribution on behalf of Fianna Fáil. I welcome the recognition given by all who spoke of the need for this important legislation to be passed with some speed. Senator Bradford said that the State is more peaceful today than in the past. However, in recognising the need for this legislation, he was not blind to the continued unfortunate existence of small terrorist groups on this island who are still intent on murder and mayhem.

In repeating what seems to be Sinn Féin's regular dirge about the Offences against the State Act, Senator Cullinane indicated that that party still carries the legacy of its past engagements in this State on the other side of the law.

The reality is that every democracy must be in a position to defend itself against those who might subvert the state. The Offences against the State Act has proved to be an important statutory tool in facilitating the Garda Síochána to undertake important investigations, provide protection for the wider community, and disrupt those engaged in terrorism on this island. Frankly, I find it surprising that Senator Cullinane and his Sinn Féin colleagues should continue to maintain the position they hold when, as they know well, we still have on this island subversive and terrorist groups who are placing at risk the lives of members of the PSNI, for example.

Just over one year ago a member of the PSNI was shot. These groups are particularly and extraordinarily targeting members of the Nationalist or Catholic communities in Northern Ireland who are members of the PSNI. The policy now in place in Northern Ireland is to ensure that the police force of Northern Ireland represents both communities proportionately. As such so-called self-styled republican terrorists now see it as their mission to shoot members of their own communities for daring to engage in policing in Northern Ireland.

I note that members of Sinn Féin at the highest level have expressed support for the PSNI and its policing. The organisations concerned also, unfortunately, have a presence in this Republic. It is only - I must be careful how I phrase this to ensure I do not in any way create a difficulty in terms of any prosecutions that might ensue - a short time ago that explosives were discovered in a location in Mayo, in respect of which people were arrested. We continue to have a problem on this island in terms of those intent on subverting the democratic will of the people, North and South. There is a need for this legislation and to ensure it works effectively. It is a crucial resource in the armoury of the Garda Síochána in addressing issues of great importance.

Senator Norris described the Bill as interesting and significant. He appears happy with some aspects of the Supreme Court's decisions and unhappy with others. The Supreme Court is of course the final court of determination. There is no appeal directly from the Supreme Court. It is important I correct one aspect of Senator Norris's as usual interesting contribution. No member of the Garda Síochána was criticised in any way by the Supreme Court in the decision delivered. It would be most unfortunate if any impression was given by Senator Norris in his speech - I assume he did not intend this - that the member of the force who signed the warrant in that particular case under the law as then understood did anything other than behave with the utmost propriety in the context of a serious investigation into an extremely serious matter. It is important that what occurred on that particular occasion is not misunderstood. The Supreme Court formed a view, which we accept and are now legislating for. We are fully respecting the principles prescribed by the Supreme Court. I again emphasise the law of the Supreme Court was addressing what had been in place for many years and had been used on many occasions in the past without any issue being raised successfully concerning its constitutionality.

Senators Brennan and Burke raised the issue of peace commissioners. This legislation does not provide for warrants to be issued or granted by peace commissioners. As I stated, the legislation provides that District Court judges will authorise the granting of warrants and that only in exceptional circumstances may a senior member of the Garda Síochána of at least superintendent rank authorise the issue of a warrant which shall remain in force for no more than 48 hours. That is an issue which we can give some attention to in the context of the general review to which I referred earlier. I have no fixed view on the issue. I thank both Senators for drawing that matter to my attention.

This has been an important and useful debate. While this is a short Bill, it is one of great importance. We must ensure, with some speed, that there is no gap in our law with regard to assisting the gardaí in the work they do in addressing issues of great importance, including matters of State. Also, the provision contained in the Bill which addresses certain drug offences and the issue of warrants is of importance in ensuring that no difficulty can arise in the future in this area.

I again thank those who contributed to this debate for their positive and constructive comments. I look forward to Committee Stage. I thank the House for the speed with which it has dealt with this matter.

I again thank those who contributed to this debate for their positive and constructive comments. I look forward to Committee Stage. I thank the House for the speed with which it has dealt with this matter.

Question put and agreed to.

Paschal Mooney (Fianna Fail)
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When is it proposed to take Committee Stage?

Paul Bradford (Fine Gael)
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Next week.

Paschal Mooney (Fianna Fail)
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When is it proposed to sit again?

Paul Bradford (Fine Gael)
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At 10.30 a.m. tomorrow.