Vol. 558 No. 2
48 Mr. Deasy asked the Minister for Justice, Equality and Law Reform if his attention has been drawn to the fact that the provisions regarding search warrants in the Criminal Justice (Theft and Fraud Offences) Act, 2001, are causing serious practical difficulties in carrying out searches for stolen property due to the requirement that such warrants must now be issued by District Court judges instead of peace commissioners. [23849/02]
As the Deputy is aware, section 48 of the Criminal Justice (Theft and Fraud Offences) Act, 2001, provides for the issue of a search warrant by a judge of the District Court. Peace commissioners are not authorised to issue search warrants under this section.
Prior to the introduction of the Act, the Garda Síochána had been advised by the Director of Public Prosecutions to seek search warrants from a District Court judge and that only in the cases of emergency and where it is unavoidable should a warrant be sought from a peace commissioner. The requirement inserted in the 2001 Act that search warrants be issued by a District Court judge was based on legal advice received by my Department. This was to the effect that the search warrant should be issued by a judge when it applies to offences which carry a sentence of five years or more which is the case with most offences under the Act.
The requirement is in line with the policy on search warrants which has been pursued for some time in relation to other legislation. Examples include section 55 of the Criminal Justice Act, 1994, section 14 of the Criminal Assets Bureau Act, 1996, and section 10 of the Criminal Justice (Miscellaneous Provisions) Act, 1997, which contains a general provision on search warrants.
I am informed that the Courts Service is not aware that the introduction of section 48 of the Criminal Justice (Theft and Fraud Offences) Act has caused any particular difficulties regarding availability of judges. I understand that the Garda authorities are currently assessing any difficulties experienced in obtaining search warrants under the Act. I am prepared to carefully consider any proposals they may wish to make, but so far it has not been represented to me that the requirement in question has caused them serious practical difficulty.
I am very surprised. The Courts Service has obviously not been talking to Garda superintendents. I am told that it is the case, although not so much in urban areas, that the Garda is having extreme difficulty in finding district justices to issue warrants. Maybe that has not been relayed to the Minister. The district justice for Waterford, for example, resides in Dublin and must physically go to the location in question. In one instance the judge asked that the court clerk be present, which added another hour to the wait. In many cases, the Garda reacts and relies on intelligence and must act quickly. Any delay is unacceptable if the Garda has intelligence and wants to move in and search a particular location. There is a huge problem here. The Courts Service is wrong and superintendents and senior gardaí have been telling me that is the case and that the change in the law from peace commissioner to District Court judge is causing extreme difficulties for gardaí on the ground.
I will bear in mind what the Deputy says and I am grateful to him for bringing it to my attention. If the practical difficulties mentioned by the Deputy are manifesting themselves, I will very soon be so informed by the commissioner of the Garda Síochána or other Garda officers. It strikes me that there may be other ways of dealing with the issue. It may be that telecommunication application for warrants involving fax machines, phones or audio-visual conferencing of some kind would obviate the difficulties to which the Deputy refers. The real question is the policy issue. Would the public be satisfied with a reversion to peace commissioner warrants, which have in the past been the subject of criticism, whether fair, or should we move the matter forward in a different direction to meet a practical difficulty?
It might be preferable to go in a different direction. However, there is massive inconsistency. When it comes to misuse of drugs a district justice is not necessary and the garda can go to a peace commissioner. In the case of an offence against the State, a garda superintendent can issue a warrant. There needs to be some consistency in issuing warrants. Currently there is not. The change in the law has made this worse because there is massive inconsistency in treatment as between a misuse of drugs issue and a warrant for stolen goods. That inconsistency needs to be rectified because it is causing problems. If we are talking about going in a different direction as far as the whole area is concerned, that is well and good and needs to be looked at.
One of the purposes of having a third party, a judge or a peace commissioner in the past, or a senior garda officer, was to distance the warrant granting function from the investigation. The more independent and the greater the intellectual distance between the people carrying out the investigation and the people whose job it is to ensure that warrants are properly sought and are not handed out lightly, the better in principle. I agree with the Deputy that under the Offences Against the State Act and other statutes, it is possible for senior members of the Garda Síochána to issue warrants, apparently without constitutional frailty. What we are dealing with here is the quality of the administration of justice and the quality of safeguards for people's homes which are protected under the Constitution in particular.
Greater distance causes delays. In these cases time is of the essence and the Garda needs to move quickly. The fact that a particular person lives 100 miles away creates massive delays. That is what I am told.
I appreciate the Deputy's point. There may be different ways of addressing that problem without allowing the Garda to issue warrants in cases such as this or, alternatively, without reverting to the peace commissioner mode. I will look at the matter and receive advice that is available from any source as to how practical difficulties can be addressed but, as I said, I have not been formally requested by anybody to address it until now.
