Dáil Éireann debate -
Tuesday, 3 Jul 2012

Vol. 771 No. 1

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

Minister for Justice and Equality (Deputy Alan Shatter)

I move: "That the Bill be now read a Second Time."

I am pleased to present the Criminal Justice (Search Warrants) Bill to the House. The aim of the Bill is to address the implications of the judgment of the Supreme Court in the case of Ali Charaf Damache v. the Director of Public Prosecutions, Ireland and the Attorney General, which was delivered on 23 February this year. In the case the court found that the search warrant provision in section 29 of the Offences against the State Act 1939 was unconstitutional. As a consequence, there is a gap in the State’s armoury to tackle the threat posed by terrorism and other serious crime. It is important we move quickly to close this gap, and I ask for the co-operation of the House in the speedy passage of this Bill in order that it may become law before the summer vacation.

It would help Deputies in their 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 Deputies I will read the relevant part of section 29:

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. The individual was arrested for the offence of conspiracy to murder and was subsequently prosecuted on a charge of making a telephone call of a threatening character. I wish to say for the record that there is no suggestion of any impropriety on the part of any member of the Garda Síochána involved in the investigation. The superintendent who authorised the warrant did so in good faith within the law as it was understood 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 in relation 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 this afternoon.

First, 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. Of course, irrespective of whether the decision maker is a judge, he or she must, as restated by the court, act judicially, that is having full regard for the principles of natural justice.

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 those provisions later.

In the period since the judgment was handed down, my efforts have been directed towards seeking to ensure the Garda Síochána has all the legislative back-up it requires to investigate terrorist and other serious criminal activity. That is the aim of the Bill before the House. I reassure Deputies that it is not the case that the Garda Síochána is without search powers following the court judgment. The Garda 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 striking down of section 29 does, however, have the potential to hamper Garda investigations in situations of urgency where there is insufficient time to contact a judge. It is for this reason the Government has moved swiftly to replace the impugned provision with a constitutionally robust one that seeks to ensure the proper balance is struck between the preservation of the security of the State and the constitutional protection afforded.

Before turning to the provisions of the Bill, I would like to say a few words about its scope. In particular, I want to emphasise that it is focused on future investigations and does not - indeed, it could not - have any effect on existing section 29 warrants. Deputies will be aware that there is no legislative option open to the Government to address retrospectively any concern that may arise in respect of such warrants. Clearly, it is not possible for legislation to make something constitutional that the Supreme Court has declared to be unconstitutional. However, cases that might be affected by the terms of the judgment will be the subject of examination by the Director of Public Prosecutions, DPP, and the Garda Síochána to decide how to proceed. In cases where 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 is distressing and difficult to accept. I acknowledge also that the possibility that they may be called on to participate in retrials will bring further anxiety. However, 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 the Constitution.

I will now outline the provisions of the Bill. It is a short Bill comprising just four sections. Section 1 directly addresses the judgment. It substitutes section 29 in its entirety to establish a new procedure for the issuing of search warrants under the 1939 Act that adheres to the principles set out by the 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, let me say that the offences to which this section will apply remain almost unchanged and comprise 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, examples including firearms and explosives offences and the offences of directing an unlawful or criminal organisation; any offence under the Criminal Law Act 1976, which includes inciting or inviting a person to join an unlawful organisation; and treason. Also covered are the inchoate offences of attempting or conspiring to commit or inciting the commission of one of the offences I have mentioned. The only change is the inclusion of the offence of incitement. I have included it to ensure all forms of criminal liability are covered.

The new procedure for the issuing of search warrants in respect of 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 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 necessary impartial supervision emphasised in the Supreme Court judgment.

That said, circumstances may arise where a warrant is required immediately to prevent the destruction of vital evidence or to prevent the commission of a serious crime. In such circumstances and in the event that the District Court judge for the particular district cannot be contacted within the time available, it is necessary to provide a fall-back option while continuing to adhere to the fundamental principle of an independent decision maker. Such urgent circumstances may not arise frequently, but this does not absolve us of the responsibility of ensuring the Garda has the power to act when necessary.

Subsection (3) provides for this fall-back option. It 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 would 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 that permit an application to a senior officer are present.

Before detailing these limited circumstances, I should mention that the basic test for the grant 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. For the purposes of this section, "place" is defined in non-exhaustive terms in subsection (12) and includes a dwelling.

I have decided not to carry forward the wording of the original section 29, which allowed a warrant to be issued in respect of "the intended commission of an offence". Instead, warrants under the replacement section may only be issued in respect of "the commission of an offence to which th[e] section applies". Deputies 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.

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 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 must be such as to render it impracticable to apply to a District Court judge. The short duration of such a Garda-issued warrant - 48 hours compared with the seven day duration of a judge-issued warrant - further emphasises that this option is restricted to genuinely exceptional circumstances.

Subsection (5) adds a further critical condition and addresses the heart of the Supreme Court judgment. It requires the senior officer to be independent of the investigation concerned. I would draw the attention of Deputies 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 in respect of that 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.

Clearly, there are other persons who could potentially fulfil this fall-back role. For example, during the debate in the Upper House, the possibility of extending the role of peace commissioners so that they might step into the breach in urgent circumstances was mooted. Peace commissioners continue to have powers to issue warrants under a small number of statutes, but the policy in more recent times has been to limit the issuing of warrants in respect of serious crime to judges and, exceptionally, to senior gardaí. This is the approach I have followed in the Bill. I am satisfied it meets the requirements of the judgment and is further bolstered by subsection (11), which places a statutory obligation on the senior officer issuing the warrant to record in writing, either at the time or as soon as reasonably practicable thereafter, the grounds on which he or she did so. The making of such a record was identified specifically by the Supreme Court as best practice.

The remaining subsections deal with the execution of the warrant and the conduct of the search. A distinguishing feature as regards other search warrant provisions 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. 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 members 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 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, or imprisonment for a term not exceeding 12 months or both. Deputies will note this 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 it is appropriate that it be summary in nature. I will conclude my remarks on section 1 by saying that its contents represent very careful consideration of the Supreme Court judgment in consultation with the Attorney General and I am satisfied the new procedures incorporate the fundamental principle of an impartial decision maker as required by the Constitution.

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.

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 the warrant is issued. These amendments will bring Garda-issued warrants under section 26 of the 1977 Act 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 and includes the Short Title and the commencement arrangements. As Deputies will appreciate from my earlier remarks, I am anxious to ensure there is no undue delay in the commencement of this Bill once it is passed. For this reason section 4(2) provides that the Bill will come into operation the day after its passing.

Before concluding my remarks I would like to say a few words about search warrants generally. There is 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. There is no doubt that there is great variation between these provisions in each step in the search warrant process, including applications, issuing, execution and safeguards. At a very practical level there is no standard search warrant form. These are all matters which impact on operational effectiveness and efficient use of resources.

I referred in my earlier remarks to the consultation paper on search warrants prepared by the Law Reform Commission. That paper contains a lengthy list of provisional recommendations on reforming this area of the law. Of particular interest in the context of the Bill before the House is the commission's consideration of the extent to which technology could be used to apply for and to issue warrants, thereby possibly overcoming some of the difficulties that arise where a warrant is required immediately. I look forward to the Commission's final report in this regard and have asked officials to conduct a comprehensive review taking account of the commission's report when it is published.

I reiterate my call for the support of this House in ensuring the passage of this important Bill in order that it may become law before the summer vacation. I commend this Bill to the House.

Deputy Dara Calleary

I commend the Minister and his officials on their very efficient and robust response to the judgment. We will support the Bill and I will do my best to facilitate my party's co-operation in concluding this before the recess. The Minister has covered most of the arguments and the importance of warrants, which is fundamental in the proper investigation of crime. In this Bill he has provided for the judgment and the Minister has also acknowledged the forthcoming Law Reform Commission report, which will give us a chance to bring this legislation up to the level of current technology. I have always held the view that the legal system has been slow in responding to the advantages offered by technology, and I hope the Minister will use the opportunity of his response to the Law Reform Commission to drag his former profession a little bit into the 21st century in the use of technology and the Internet in the administration of justice.

I will comment on some issues, particularly in light of the Minister's remarks. He indicated the Director of Public Prosecution is reviewing a number of cases in light of the Supreme Court judgment and that there may be outstanding issues. The system should be aware of the need to ensure that at all times the victims of the crimes should be involved in consultation, and they should not read of a decision being overturned either within the court or in the media. If something happens as a result of the Supreme Court judgment that involves a victim or family of a victim, they should be involved from the outset. It should not come like a bolt from the blue.

I note the Minister's comments on restricting the use of a warrant with regard to the intended commission of an offence. I know he does not have the figures this evening but perhaps in advance of Committee Stage he might provide us, if possible, with the numbers of warrants previously issued with this intent in mind, as opposed to warrants issued after an offence has been committed. Will this impact on the ability of the Garda to collate information or evidence for the processing or preparation of a case? If that is the case, will other powers be furnished to account for that?

More than 100 separate Acts were passed between 1831 and 2008 containing search warrant provisions, with 170 statutory instruments used between 1979 and 2008. They are a common feature of our judicial system. The Minister referred to offences in major legislation which was so important in darker times for the State, and search warrants were a very significant weapon. I welcome that the Minister has acknowledged that the gardaí involved in the cases referred to were acting within their understanding of the law at the time. That is important.

In any redesign of the search warrant procedures, it is important we strike a balance between the rights of the accused and the rights of those suspected of crime. However, crime and criminals are moving much faster than we, as a society, are doing to keep up. The methods of crime and the ability to redefine crime is quite outstanding. We must ensure the tools we use to investigate crime and keep people to account are as flexible and robust as what is demanded. Although I support any move to protect people's rights, it is also important to show we will not choke our ability to investigate crime in doing so. We must not tie the hands of those to whom we entrust our protection and the job of investigating crime with added regulation and administration, particularly in this area. If we did, we could inadvertently hand an advantage to people who seek to act in a criminal way.

The Minister referred briefly to technology, and there are many areas on which one could comment. In this day and age, a District Court judge should be available at any time, even if it is not a judge in the immediate district. There could be electronic communication or "judge on-call" system, although I do not mean to demean the profession. A judge should be available to a garda within a reasonable commute at all times. The Minister has tightened provisions so that only people not below the level of superintendent can further the warrant process. It would be preferable for everybody if a judge could be involved, as he or she would be truly independent in the assessment of a crime. Given that we have so many of them, it is not beyond the possibility that some sort of on-call system should be available in order that a warrant could be signed.

If a judge is not physically present, we should be able to have some kind of judicial interaction through protected electronic signatures. A superintendent may be involved in a case or on a separate stream, but such action should be used in the most limited circumstances. It may not be possible to consider this issue in the Bill but the Minister might examine it in the context of his response to the Law Reform Commission. Perhaps we can involve the Judiciary in a consultation.

I commend the Bill to the House and it covers the judgment. We will support its speedy enactment and I look forward to the debate on Committee Stage.

Deputy Jonathan O’Brien

I share the Minister's sense of concern and urgency in terms of getting the Bill through the House. I assure the Minister that we will do everything within our remit to facilitate it. I do not intend to go into the background of why we are here because the Minister has outlined the reasons in his opening remarks, especially in respect of section 29 of the Offences against the State Act 1939 and the reasoning behind the decision, which found the section to be unconstitutional. We should hold a discussion at some stage on the knock-on effects of that ruling.

I fully understand that it is up to the Director of Public Prosecutions to review cases which may or may not go to trial. Several relevant cases have collapsed and associated decisions have been appealed. I call on the Minister to provide some clarity for the Opposition spokespersons. If he cannot do this during his wrap-up, then perhaps he will do it in a briefing setting and provide us with some details on the number of trials that this could possibly impact upon. That is important.

Last week, I raised a matter relating to the Anglo Irish Bank investigation. I have no wish to muddy the waters but it is important to have some clarity because much of the evidence in that investigation was obtained on the back of search warrants. This is something of which we should be aware and I imagine the Minister and the DPP will be examining those cases.

How did we get here? I know from reading the transcripts of the Seanad that the Minister referred to the Morris tribunal and some of the associated findings. I agree completely that Mr. Justice Morris did not state that this particular provision was unconstitutional. He was unable to make that statement given the setting in which he found himself. He raised certain concerns and I question whether those concerns have been adequately addressed. I know from reading the transcripts of the debate in the Seanad that the Minister touched on what unfolded in the case of a former Minister with responsibility for justice following consultation with the Garda Commissioner, who took the view that the provisions was satisfactory as it stood.

The Minister referred to the Law Reform Commission. We now know that the section has been found to be unconstitutional. Whether in a tribunal setting or a criminal investigation, when a judge makes such a comment, we should at least investigate it. I call on the Minister to confirm in his wrap-up whether the Attorney General was consulted at the time on the back of those comments made during the Morris tribunal.

We welcome some of the provisions. They bring some clarity to the situation and this is important. Subsection (2) deals with the issuing of search warrants by District Court judges, and this is welcome. This is the way we should do our business. Deputy Calleary suggested we should strive for a situation where all search warrants are issued in this manner. I realise that is not possible at the moment because in certain cases there is an urgent and immediate need to issue a search warrant. The Minister has tried to address some of the associated issues in the Bill. In particular, subsection (4) puts in place a two-part test which stipulates that only an officer of the rank of superintendent or higher can issue a warrant and he must be independent of the investigation. All of this is welcome and we are reaching a point where we are striking the right balance between giving the Garda the necessary tools and powers to carry out investigations and respecting the rights of citizens.

The Minister is well aware of my views and those of my party on the Offences against the State Act. These have not changed, nor will they. I recognise, however, that the Garda must carry out the tasks we have set it, that it must have the necessary tools to do so and that search warrants are a necessary part of that process. For this reason, we will support the Bill as it goes through the House. We believe some of the safeguards that have been put in place, limited though they are, improve the situation. They bring clarity and put in place an independent process in respect of the issuing of search warrants. We could go further, and that is something we can consider, not in the context of this Bill but perhaps further down the line. Deputy Calleary touched on some of the possible solutions, including electronic signatures. One must question whether these will be possible or whether such a change would of itself be deemed unconstitutional. I am unsure of the answer, but perhaps that is a conversation for another day.

Following examination of the Bill, we are satisfied that while safeguards exist and improvements have been made, there is room for further improvement. We are also aware, however, that there is a need to resource the Garda not only in terms of giving it the powers for search warrants but to provide adequate resourcing across all levels. This is an important part of the investigative process, and therefore we will be supporting it.

Deputy Finian McGrath

I wish to share time with Deputy Mattie McGrath.

An Ceann Comhairle

There is no provision for speakers to share time unless there is agreement of the House. Is that agreed? Agreed.

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.

Section 1 substitutes section 29 of the Offences against the State Act 1939 with a new section 29. Subsection (1) identifies the offences to which section 29 applies. These include an offence under the 1939 Act or the Criminal Law Act 1976; an offence that is a scheduled offence for the purposes of Part V of the 1939 Act, that is to say, offences that may be tried before the Special Criminal Court; treason; and the related offences of attempting, conspiring or inciting. We should consider the whole history of the Special Criminal Court as well. Sadly, during the conflict in the North, there were occasions on which power and authority were abused by certain sections of society and certain gardaí. This is a reality we must face. At all times, we must be conscious of civil liberties and human rights, bearing in mind that we must protect the State and citizen. We must always be vigilant in this regard. Even if only a minority of cases collapse, it is not good enough or acceptable that we turn our backs on them and walk away from the miscarriages of justice.

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.

Subsection (3) empowers a member of the Garda Síochána of superintendent rank or above to issue a search warrant under the section to a sergeant or a garda of higher rank. This power is qualified by subsections (4) and (5). Subsection (4) provides that a superintendent may issue a warrant under this section only if he or she is satisfied that the warrant is necessary for the proper investigation of an offence. It is important that the investigation be proper. We want quality policemen who do their job in a professional manner.

It is important that we protect and look after our police forces. In recent days, a young man, Mr. Peadar Heffron, a member of the PSNI, did not receive compensation. This is appalling and is suggestive of not looking after one's police force. We have seen the radical changes on this island, including those under the PSNI, yet Mr. Heffron, who was seriously injured and lost a leg, was told he will not be compensated because he was on his way to work when the tragedy occurred. What utter rubbish. What a lack of justice in a police system.

This matter should be placed on the table at the intergovernmental talks on the North. One cannot have circumstances in which people are ignored and not given guaranteed protection if they are serving the community. The same applies to the Garda Síochána. Many young gardaí have lost their lives. Over the past two to three years, many young men and women either lost their lives or were injured. We must put guarantees in place and this should be raised in the debate on this legislation.

Subsection (6) concerns the information to be set out in the warrant and the actions that may be carried out pursuant to the warrant. The actions are those of entry, search, of both the place and any person found there, and seizure of anything found at the place or in the possession of a person present at the place. The seizure power relates to items that the member of the Garda Síochána or Defence Forces reasonably believes to be evidence of or related to the commission of an offence to which the section applies. The right to enter is subject to the obligation to produce the warrant or a copy of it, if requested. The entry may be achieved by use of reasonable force, if necessary. This is an important subsection because, at times, gardaí must enter people's homes. In some homes, the residents may be innocent. There may be one guilty person living there but there may also be innocents, including children. This is why subsection (6) is important. Warrants must be produced and clearly visible for all those concerned.

Subsection (9) creates a summary offence. It provides that a person who obstructs or attempts to obstruct a member acting under the authority of a warrant, fails to comply with a requirement to provide their name and address when requested, or gives a false or misleading name or address commits an offence. The maximum penalties on conviction are a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months. I welcome this subsection because one must have strong, tough legislation, but it must also be balanced.

Subsection (10) provides that the power to issue a warrant under the section is without prejudice to any other power conferred by statute to issue a warrant for the search of any place or person. This is important legislation.

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.

In addition to dealing with the serious issues, including violent crime, we must constantly think of the human aspect. The recent tragic murder of the journalist, Eugene Moloney, is a classic case. There is no real outrage at all. While we were all shocked and horrified, are we now accepting that people coming home from their local pub after having a pint can be assaulted or killed on the streets? There is no major outrage. I pay tribute to Mr. Eugene Moloney on his excellent work. I knew him very well. He was very involved in the Galway Arts Festival for many years. Many people had great respect for him as a journalist and human being. I express my sympathy to his family.

We must ensure the Criminal Assets Bureau is developed constantly and is used in the interest of people. I want to see the money confiscated from criminals used in the most disadvantaged communities that deserve a break. It is in these areas that the assets of crime should be invested.

A number of Deputies raised the resource issue, along with the warrants issue. This is important because we are living in difficult times. However, we must ensure quality policing in addition to dealing with the broader resource issue. Appropriate funding should be made available.

Section 4 provides that the Act will commence on the day following its passing, that is, the day following its signature by the President. The proposed legislation will not result in any significant cost to the Exchequer.

I welcome the legislation and will support it. It is important we have a justice system that respects citizens and is effective. We need a Garda Síochána that is very professional and has the old-fashioned ethos of public service and the support of the local communities. As I stated, one must earn respect in any society. Those involved in policing have a very important role to play.

Deputy Mattie McGrath

I am delighted to have the opportunity to speak on this Bill. I thank the House for allowing Deputy Finian McGrath and me to share time.

The aim of the Bill, as the Minister stated, is to address the implications of the judgment of the Supreme Court in the case of Ali Charaf Damache v. the Director of Public Prosecutions, Ireland, and the Attorney General, delivered on 23 February 2012. That was not very long ago. I compliment the Minister and his officials on bringing forth this legislation in an effort to close the loophole.

In the case in question, the court found that the search warrant provision in section 29 of the Offences Against the State Act 1939 was unconstitutional. As a consequence, there is a gap in the State's armoury to tackle the threat posed by terrorism and other serious crimes. We must remember terrorism has not totally disappeared. The incidence of serious crime is increasing and we must be ever vigilant.

This legislation is progressing quickly. All Deputies should support this Bill. I have supported An Garda Síochána my entire life and I have also been involved in community alert schemes. I compliment those who are involved in community alert and neighbourhood watch schemes.

No police force can provide security without the support of the people. It would be a pity if that ideal were lost. This is why I am concerned about the closure of rural Garda stations. Officials might argue they are not needed, but people must know where they can find a friendly garda with whom they can chat about the match or whatever. In this way, a lot of helpful information can be gleaned. Mobile patrols will never replace that relationship. Many of the best gardaí have operated under a community ethos because it is important to know one's community. The same can apply to religious beliefs and to politics. We have to know our electorate because there is no better way to gain their support.

The warrant at the centre of the court case in February was issued by a superintendent who was not only in charge of the investigation but actively involved in it. The warrant authorised the search of an individual's home. This individual was arrested for the offence of conspiracy to murder and was subsequently prosecuted on a charge of making a telephone call of a threatening character. As the courts found, however, a mistake had been made. The Minister stated there is no suggestion of impropriety on the part of any member of the Garda involved in the investigation and that the superintendent who authorised the warrant did so in good faith within the law as it was understood at the time. That is the problem, however. Did he understand that he should not sign the warrant given his direct involvement in the investigation? This is why a different superintendent should have been asked to examine the facts coldly, calmly and collectedly. The superintendent in this case was anxious to deal with a serious situation but a superintendent from a different division would have been able to evaluate the case from a distance. The case submitted on behalf of the applicant was that section 29 of the Offences against the State Act 1939 was repugnant to the Constitution because 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. Did the superintendent in question fully understand the law? I accept he may not have had time to apply to the courts for a warrant, but that would have been the preferred option because we depend on the Judiciary to be fair and impartial.

The Bill acknowledges that issuing a warrant to search a house is a big decision because one's home is one's castle. It is disturbing for families if a number of gardaí can search their homes uninvited. This must always be the last course of action. While I fully support the Garda in tackling all kinds of crime, they should be considerate when searching premises. This is why it is important that a different superintendent should issue the warrant.

In the period since the judgment was handed down, the Minister's efforts have been directed at seeking to ensure the Garda has all the legislative back-up it requires to investigate terrorism and other serious criminal activity. That is the aim of the Bill before the House. I do not believe the Garda has been given the resources and expertise it requires. The retirement of senior officers has caused a significant drain on expertise and knowledge in the force. One of my colleagues has tabled a priority question to the Minister for Public Expenditure and Reform on this issue. Many parts of the public service are rehiring individuals who left on the early retirement scheme. Is this happening in An Garda Síochána, where it should be happening? That knowledge is vital. I have met a number of senior gardaí who did not want to retire but were forced to do so because of age and service. At a time when recruitment of young gardaí has been stopped, we should be trying to hold on to their expertise and experience.

A victim's charter may exist but is it being adhered to? As the previous speaker asked, where are the victims? How many more Eugene Moloneys will we see in this country because we do not have sufficient resources to police our streets? Such is our culture of late nights and alcohol consumption that people cannot go home after a night of fun without disturbing anybody else. The unprovoked attack against that journalist as he was on his way home was obscene. We must increase sentences. If a direct physical attack results in death, it is not right that we charge people with manslaughter. We have to be effective. Prisons should not be holiday camps. I am all for restorative justice but the punishment must fit the crime. Above all, as was mentioned in respect of the psychiatric patient discharged in Donegal, we cannot permit victims' families to live in fear that something similar might happen again unless the perpetrator has gone through rehabilitation or has changed while in custody. It is not fair that people should be afraid of meeting a former offender in a local town or village.

I support the Bill and wish it a speedy passage through the Dáil. I hope it will block the loophole it seeks to address. However, its scope is limited to future Garda investigations. There is no legislative option available to the Minister to address existing cases where warrants under section 29 of the 1939 Act may be at issue. The Oireachtas cannot retrospectively make constitutional that which the Supreme Court has declared to be unconstitutional.

This is a short Bill which contains four sections. It replaces section 29 of the 1939 Act with a provision designed to conform to the Supreme Court judgment. It requires applications for search warrants to be made to a judge of the District Court where possible. In limited circumstances a garda of superintendent rank or higher may authorise a search warrant where circumstances of urgency render it impractical to apply to the District Court. The issuing officer must be independent of the investigation. It is important gardaí are made fully aware of this requirement.

The house of a former colleague was searched recently and the individual was arrested. It was alleged that he had defrauded the State of sums of money.

If that is the case, he should be punished but he is innocent until proven guilty. Why was a posse of members of the media waiting at the Garda station when he was arrested? That was scandalous, outrageous and should not take place. Are media outlets applying pressure on the Garda Síochána to take certain actions? Is the Minister able to stand up to the media or are they too powerful? While I do not wish to condemn all media, everyone is entitled to his or her day in court and his or her good name. Individuals and their families must be allowed to live their lives without major intrusion. I contrast the case to which I referred with the failure to arraign a single banker, despite the billions of euro involved. We also had the case of a certain gentleman being telephoned to make arrangements to come to a Garda station by appointment. I will not refer to the person by name but everyone is aware of the case. In another case, a person's house was ransacked on the basis of an alleged offence involving €1,800. Let no one misinterpret me because I do not condone any offences. Even if only €1 is involved, an offence is still wrong.

Balance, fair play and, above all, transparency are required. We must ensure warrants are properly issued and executed. I do not know who issued the warrant in the case to which I refer or if the matter came before a District Court but I have been a victim of similar behaviour. A summons was served on me at 11 p.m., which is an inappropriate time to visit any home and especially so in my case as I had a young child of 11 years at the time. The summons served on me referred to allegations of which I was subsequently cleared by a jury. The case was badly handled and characterised by bullying. Two police cars and a number of gardaí arrived at my house as if I was a criminal. This type of bullying, which is taking place, must be taken into account. A small number of gardaí do not behave properly. However, I support the vast majority of gardaí, as I have demonstrated by supporting this Bill which will give them the tools of the trade. The small minority must be weeded out.

Last November, I referred in the House to a case involving the theft of machinery from a yard during a repossession by a bank. The institution in question has since returned the machinery and apologised for an outrageous injustice, which was perpetrated with gardaí present. A complaint was made, an investigation carried out but no prosecution followed. The bank returned the machines, apologised unreservedly to me and the family in question and sent a representative to visit the family. However, mistakes were also made by the Garda Síochána. While I do not propose to engage in a witch-hunt against any member of the force, redress had not been made because prosecutions have not followed in a case that involved breaking and entering a premises in the middle of the night. This does not reflect good practice. The chief superintendent and local superintendent in Clonmel gave me a good reception when I met them to discuss this issue. While they are embarrassed by what occurred, it should not have happened. Anybody can make a mistake. I concur with the old adages, "There but for the grace of God go I" and "Any man who never made a mistake never made anything". It is not difficult to offer an apology. If wrongdoing or heavy-handedness on the part of the law is proven, it should be acknowledged, efforts should be made to put it right and an apology offered. It is important, therefore, that in introducing the Bill we ensure there is no repeat of the court case which found the current law repugnant to the Constitution. Fair play is vital in this regard.

To put on my community alert hat, having a local garda who knows local people on the beat is the best approach because he or she will be able to obtain information. I am not referring to informers and so forth but it behoves all of us to protect our communities and families. We should look out for others by noting suspicious activities and we should not be afraid to report them. As the previous speaker noted, respect must be mutual.

Community gardaí in Clonmel and Cahir are doing tremendous work but are being sucked into other duties because Garda numbers in the area are low. I appeal to the Minister to address the issues of the Garda station in Clonmel and, more important, Garda strength in the town. Clonmel used to be the largest inland town in the country and is now the second largest inland town but this is not reflected in Garda numbers. I do not say this to frighten anyone. Gardaí in the town, who do a hard job under Superintendent Courtney, need resources, the tools of the trade and half-decent accommodation. One can have all the laws in the world but they will be ineffective without manpower and vehicles. The requirement to withdraw Garda vehicles once they have reached 300,000 miles is silly. One car could be a wreck after 300,000 miles, while another could be in perfect condition. We must be realistic in these financially constrained times. We must ensure the Garda Síochána have sufficient resources, legal support and, above all, community support. Without these, policing is impossible.

I support the Bill and hope it will be speedily passed because it is needed to plug a loophole. I look forward to working with the Minister on it.

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.

As the impact of this Bill is so evident, it is imperative that it be enacted before the summer recess to restore the search powers available to the Garda Síochána in respect of subversive and other serious crimes. These proposals will ensure the operational requirements of the Garda are met and that all decisions authorising the search of any place, including a dwelling, are taken by a person who is neutral to the investigation. It also is important to note the Minister has stated this Bill is limited to addressing the implications of the Supreme Court judgment.

I ask for Members' co-operation in the passage of this most significant Bill as speedily as possible in order that it may become law before the summer recess and I commend it to the House.

Deputy Áine Collins

I thank the Ceann Comhairle for the opportunity to speak on this Bill. This is legislation that to an extent restores the right of gardaí above the rank of superintendent to issue permission for a search warrant in serious and urgent circumstances. The Bill is necessary as a result of a court decision that certain ways of issuing search warrants were in part unconstitutional. They did not protect adequately the privacy of the individual when allowing access to his or her home or any other place that may be of assistance to the Garda in pursuing a case.

Over the years, because of the threat of terrorism and the activities of certain organisations which tried continually to subvert the authority of the State, many laws were enacted to ensure they did not succeed. This meant the Houses of the Oireachtas enacted laws to support the Garda and the Army in order that they could carry out their duties. Thankfully, the serious threat posed in the past has been resolved to a great extent. The peace process in Northern Ireland has come a very long way and is progressing well. The level of progress was evident in the recent meeting between Queen Elizabeth and Martin McGuinness. It was an image many people thought they would never see.

Although I disagree with Sinn Féin in almost all aspects of its policy pronouncements, I welcome its relatively recent conversion to democratic politics and the part it played and continues to play in the peace process. I am glad that in future political battles, the ballot box will be the only weapon used by that party. That said, there are other organisations that seek to rekindle the Troubles and would do so if they had the requisite resources and support. Thankfully, they lack such support but they can still pose a serious threat. Therefore, the security forces must have the powers to ensure such people are brought to task. A valid search warrant that will stand the test of a constitutional challenge is a necessary tool in bringing convictions against such people. In addition to the threat posed by these still-existing small subversive groups, the threat of organised criminality also must be addressed. Irish society has seen a major increase in organised crime and gangland activity in recent years and I note many such gangs are or were closely linked with subversive groups.

While the Constitution and the rights of ordinary people must always be respected, strong constitutionally proofed laws also are required to deal with these elements in society. The Minister is introducing a measure in this legislation to ensure warrants issued in the future are not open to challenge in the courts. One of the main observations of the court was that the warrant should be issued by a person, not necessarily a judge, who was independent of the investigating team. The court held that a warrant that is required urgently can be issued by a such an independent person who has decided that such a warrant is necessary and that such a person should record the reasons for his or her decisions. In this Bill, that authority is given to a garda above the rank of superintendent who is not involved in the case or who does not have any direct supervision or authority over the investigating team. The warrant may only be issued in these circumstances when a judge is not available or there would be undue delay in seeking a judge's permission.

Fine Gael always has and will continue to be hugely supportive of the Garda and the Army in their efforts to bring criminals to justice. Since the foundation of the State, there has never been any question of its resolve in this matter. However, the economic crisis is forcing the Minister and the Government to make difficult decisions due to necessary financial cutbacks. There is concern, especially among people in rural communities, about any proposed closure of Garda stations or reductions in numbers. While search warrants are an essential tool in fighting crime, so too is local integration of the Garda. The intelligence gardaí get from the public is very important in assisting the Garda to solve crime. The co-operation and goodwill of ordinary people is a key element in this regard and community gardaí are central to such co-operation. When in opposition, the Minister of State, Deputy Costello, produced a valuable paper on the importance of supporting the continued development of a community police force. Community policing helps to solve crimes and helps enormously to prevent crimes such as anti-social behaviour. Prevention always is better than cure, and in most cases it also is more cost-effective in the long run. For example, if activities such as anti-social behaviour can be stopped early, this helps young people to avoid getting involved in more serious crimes. In turn, this reduces the pressure on the entire criminal justice system and saves families a great deal of pain. It promotes a proactive community environment that enhances quality of life for all. I ask the Minister, therefore, to continue to ensure community policing remains centre stage in any reorganisation process.

As for this Bill, it is clear the Garda needs the powers to act swiftly in urgent and serious cases. This Bill will enable it to do this without compromising people's rights and I have no hesitation in commending the Bill to the House.

Deputy John Paul Phelan

I have a few brief comments to make on this Bill, which, as the previous speakers have noted, is a small item of legislation to deal with a situation that has arisen following a recent Supreme Court judgment. I commend the Minister and his officials on acting swiftly on foot of that decision. I also agree with previous speakers with regard to my own interaction with members of the Garda Síochána in my constituency and the job they do, and I express my full support for their efforts.

It is worth pointing out that after the power of arrest and detention, the power to search someone's home, dwelling, premises or property probably is the most significant power one can give to one's police force. Consequently, it is worth examining in detail what this legislation proposes because, ultimately, it could have a highly significant impact on people's constitutional rights. Article 40.5 of the Constitution is quite clear about the inviolability of the dwelling, save in accordance with law. Recently, the Supreme Court in its judgment decided that section 29(1) of the Offences against the State Act 1939 contradicted Article 40.5 of the Constitution and the importance of the inviolability of the home.

I support fully this legislation because the Minister has struck the right balance between the necessity to protect people's right to privacy and their own home and the necessity to give the Garda the correct powers to enforce the law. The legislation is quite clear in that it now makes it necessary in all cases, except in exceptional cases, for the Garda to have a warrant issued by a District Court judge. The exception is provided in a case where urgency is a matter of priority. It is appropriate that in cases in which it might be difficult to get a District Court judge and in which destruction of evidence or people's property is possible or people's lives or health are potentially at risk, an officer of superintendent rank or above who is not involved in the investigation would be given the authority to issue a search warrant.

As for the judgment from which this legislation comes, namely, Ali Charaf Damache v. the Director of Public Prosecutions, Ireland and the Attorney General, it is important to note the gardaí concerned did nothing wrong. They acted in accordance with the law as laid down in 1939 but the Supreme Court, on foot of a challenge, decided the aforementioned legislation was repugnant to the Constitution. I support the Minister fully in what he proposes to do in this regard, which comprises a small but significant change in how search warrants will be granted in the future. The requirement that a District Court judge will issue the warrant, save in exceptional circumstances, is a further protection of people’s constitutional rights.

I commend the Minister. In my ten years in the Oireachtas, including one year in this House, I find the Minister for Justice and Equality tends to be the busiest Minister from a legislative point of view. This Minister has been no exception; in fact, he has probably been busier than a number of his predecessors. I commend him for a recent report on the issue of cash for gold which he referred to the justice committee. The committee will have to look at that. From my contact with members of the Garda Síochána in my community, I have been asked by them to raise the issue of moneylending and the laws which surround it. There is a sense among many members of the force that the legislation is not sufficiently strong and that maybe it should be examined in the near future.

Deputy Joe Carey

I welcome this Bill. The purpose of the Bill is to deal with the fall-out from the Supreme Court judgment on 23 February 2012 in a case taken against the DPP and the Attorney General for future Garda investigations into subversive and other serious crimes. I commend the Minister for acting without delay subsequent to the shortcomings pointed out by the Supreme Court. The Supreme Court found section 29 of the Offences Against the State Act 1939 to be repugnant to the Constitution, because it allowed a person who was not independent of the investigation to issue a search warrant in relation to a dwelling. Section 29(1) permitted a superintendent to issue a warrant where he or she was satisfied that evidence of, or relating to, the commission or intended commission, of an offence scheduled for the purpose of Part V of the 1939 Act, such as firearms and explosives offences or a small number of other serious offences, was to be found. This situation did not require the superintendent to be independent of the investigation.

I appreciate the balance that the Minister seeks in this Bill and I believe that the distinctions it creates between a search warrant issued by a member of An Garda Síochána and that of a District Court judge reflect the importance of the matter at hand. The fact that a warrant issued by An Garda Síochána lasts just 48 hours while that of a District Court judge lasts one week, and that a warrant issued by An Garda Síochána has an associated report on its creation, reflects the way we want to go and underlines the importance of the administration of justice in accordance with our Constitution. The separation of powers is important and that is underlined in this Bill.

I am happy the Minister has achieved the correct balance and maintains the integrity and independence of any criminal investigations from a procedural perspective, while also recognising that there are instances where urgency is required. The timeframe allowed and the requirement to outline the reasons in report form for the granting of a search warrant by a Garda superintendent not associated with the criminal investigation allow operational matters and the day to day work of both An Garda Síochána and the DPP to continue.

I understand there are other people availing of this Supreme Court judgment and are in the process of appealing their convictions. This is regrettable but understandable. This legislation cannot be applied retrospectively and I hope that convictions secured would not be thrown out by what is or was in essence a procedural matter. This is an issue upon which I have no doubt the courts will once again be called to adjudicate.

In conclusion, I welcome the Bill as updating that which has been in place for a long number of years without a proper review. I also note the Minister has instructed his officials to conduct a general review of search powers. It is my understanding that this review will be informed by the forthcoming Law Reform Commission report on search warrants. I welcome this approach by the Minister and look forward to further debates in the House on the matter of search powers in due course.

Deputy Bernard J. Durkan

I am happy to speak on this important Bill and to support it. Like many others in this House, we have observed the need for improvement in legislation to deal with the ever increasing volume of serious crime. There is a need for good practice and the recognition of the accused to have their constitutional and human rights respected. The degree to which institutions of the State deviate from good practice can itself be the very instrument used to undermine the case being made, even though that may be made in the best interests of the State and the protection of its citizens. It is one of those peculiar anomalies that we must respect at all times.

I have always been an advocate for robust application of the law, particularly in so far as organised criminal gangs are concerned. They have grown and gone from strength to strength over the past ten or 15 years. They are spreading their wings into the wider community and are seeking out vulnerable members of society who may be vulnerable for reasons of economic difficulty, or substance abuse, or whatever. These people are being used to promote and extend the crime barons' field of activity. The sad part is that these people pay the price. The crime barons do not seem to be caught out to the same extent. It is not new to this jurisdiction or to adjoining jurisdictions. It is not new to the administration of justice globally. It is just one of those things that seems to happen. Arising from the judgment that brings us to focus on this Bill, I hope that a special effort can be made in future to ensure that not only do the direct perpetrators pay the price for serious crime, but that the "Fagins" who promote and benefit from this behind the scenes receive their just punishment in the same way as the fools they use to commit their crimes.

The criminal world is becoming more sophisticated in terms of technology and technique. They have spread their communications across the globe. In turn, this presents a huge threat to governments and the institutions of states, and a huge threat to the efficacy of the administration of justice. We need to be aware of that and we have to balance that against the need to recognise the rights of the individual, even when accused. Our observance of their rights will in turn determine the strength of the case ultimately proffered against them. Recognition and due regard should also be had for the rights and entitlements of the person in prison. Those rights are the same because the State has now a duty of care to ensure the rules and regulations are applied so it is not brought into disrepute for failing to apply them.

Debate adjourned.