Minister for Justice and Equality (Deputy Alan Shatter): I move: “That the Bill be now read a Second Time.”

Deputies will have noted that sections 2 and 3 concern search warrant provisions relating to suspected drug offences. As I mentioned, there are a small number of other statutory provisions which allow for Garda-issued warrants, generally in circumstances of urgency. One such important 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 that require the immediate issue of a warrant arise that would render it impracticable to apply to a District Court judge or a peace commissioner.

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Deputy Finian McGrath: I thank the Ceann Comhairle for the opportunity to speak in respect of this new legislation and for allowing me to share time with Deputy Mattie McGrath. I welcome the debate because it affords me an opportunity to examine in-depth justice issues, warrants and the whole system. Many of our citizens have been let down by the system, and this is something we must accept as part of the debate. How can we refer to a system of justice when people are swanning around after murdering a beautiful daughter and her mother and when whole communities are intimidated or threatened each night by drugs gangs and no one seems to care about it? This is the reality which I wish to highlight while the Minister is in the House, and I will develop these points. It is important these things are said because many people are hurting because of a lack of fairness and justice in the justice system. This is linked to the debate. Many people are intimidated and attacked. Many people throughout the city are afraid to go to the Garda because of widespread intimidation. Often they are left on their own, and this is something we must address as well. Many people believe the whole system has let them down. I am one of these people and this is why I raise the matter now.

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. This was struck down by the Supreme Court in its judgment in the case of Ali Charaf Damache v. DPP, Ireland and the Attorney General. The Bill also amends the provision in the Criminal Justice (Drug Trafficking) Act 1996 relating to the issue of search warrants under section 26 of the Misuse of Drugs Act 1977. We must deal with the Supreme Court decision but we must also deal with the drug trafficking issue as well.

The problems have ruined our society and our country but there is another aspect to this as well. One issue rarely raised in the debate is the fact that drug dealers make money because there is a market for drugs, and it is important to address this issue. Many of those in the market come from affluent families, or they are people who have money in their pockets and can afford to buy drugs and treat them as a social outlet. This is not acceptable and it should never be tolerated because it is ruining the country, our youth and our nation. It is important to bear this in mind when we are discussing this legislation, especially the section relating to the Criminal Justice (Drug Trafficking) Act 1996.……

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Subsection (2) provides that a District Court judge may issue a warrant for the search of a place. To do so, the judge must be satisfied by information on oath from a member of the Garda Síochána of sergeant rank or above 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 that place. Trust is another issue. As one who knows many gardaí and who has had family members who served in the force, I realise trust is a key issue for the public. One does not demand respect from a country or society; one earns it. Any good police officer on the beat will tell one that. I worked with many of them in the north inner city for more than 25 years and learned that the good gardaí were the ones who earned the respect of their community. The good men and women in the drug squad earned the respect of the community, and by God did they benefit from it. It is a question of public service and trust. Trust is the issue when dealing with a member of An Garda Síochána of sergeant rank or above. The power being given to officers is important but they must act in the interest of good public service and citizens.…

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The stated purpose of the Bill refers to the drugs issue. There have been major successes. I welcome the recent discovery of a huge amount of cocaine. However, this shows the huge market that exists and that entire communities are suffering.

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Deputy Regina Doherty: I welcome the opportunity to speak on this short but important Bill. The law on search warrants has developed into a complex and extensive legal process. The Bill will close the legal loophole with regard to search warrants which threatened to wreck prosecutions against dissident republicans and other alleged criminals. The approach to search warrants was developed in the 19th century and formed the basis for the law as it stood on the foundation of the State. Since then, a complex series of Acts and statutory regulations conferring powers of search and seizure has been put in place. The content of these statutory powers has been greatly influenced by the need to ensure they conform to relevant fundamental rights in the Constitution and European Convention on Human Rights.

The legislation has been drafted to give new search powers to gardaí, following the ruling in March of this year that previous search warrants were unconstitutional. Under these new provisions, warrants needed quickly may be granted by a District Court judge or Garda superintendent who is not directly involved in the inquiry. The execution of a search warrant naturally involves an interference with one’s privacy, be it the individual’s home, workplace, vehicle, documents or otherwise. The right to privacy is not absolute, however. While it exists as a safeguard which may be relied upon to prevent or challenge an undue interference with one’s privacy, it will not necessarily prevent all interferences. We must continue to maintain a balance between protection of the State and protection of the individual. It is in the interest of the State to prevent, detect and prosecute criminal offences or ensure adherence to the law.

I applaud the Minister who has moved to address a problem in the law that has led to a number of successful appeals to criminal convictions because search warrants issued during some investigations were found to be unconstitutional. The Supreme Court decision in March rendered unconstitutional section 29(1) of the Offences Against the State Act. The case involved a man who took an appeal against his prosecution, claiming that a Garda superintendent working on the investigation should not have issued a warrant allowing a search of his property. This ruling meant any evidence gathered under such warrants was inadmissible and subsequently derailed prosecutions. Subsequent appeals based on the so-called Damache ruling have been successful in having criminal convictions quashed and have included a County Cork businessman who was convicted of laundering the alleged proceeds of the Northern Bank raid. It was, therefore, essential that the implications of the Supreme Court judgment were addressed as a priority. The Minister is doing so in this Bill.

The striking out of section 29 has potentially significant implications for Garda operations in the event that urgent circumstances arise, for example, in respect of firearms and explosives, and it is not practicable to apply to a District Court judge in the time available. District Court judges usually deal with search warrant applications that apply to the areas to which they are assigned. Under the proposed legislation, section 29 will be replaced with a new measure that will allow District Court judges to issue warrants for neighbouring areas. A judge may issue a warrant from the court or from his or her home if gardaí arrive seeking a warrant urgently. It is planned that senior Garda officers not below the rank of superintendent who are independent of the investigation will have the power to issue a warrant in urgent circumstances where it was not possible to contact a judge immediately.

The scope of the Bill is limited to addressing future Garda investigations. There is no legislative option available to the Minister to address existing cases where section 29 warrants may be at issue. The Bill also amends the search warrant provisions which apply in cases of suspected drug offences and already provide for superintendents to issue warrants in circumstances of urgency where it is impracticable to apply to a District Court judge.

The scope of the Bill is limited to addressing future Garda investigations. There is no legislative option available to the Minister to address existing cases where section 29 warrants may be at issue. The Bill also amends the search warrant provisions which apply in cases of suspected drug offences and already provide for superintendents to issue warrants in circumstances of urgency where it is impracticable to apply to a District Court judge.

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Debate adjourned.

[For the full debate, please click on this link to the Oireachtas website]

Criminal Justice (Search Warrants) Bill 2012 [Seanad]: Second Stage

Vol. 771. No.1

Tuesday, 3 July 2012