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Dáil Éireann debate -
Wednesday, 4 Jul 2012

Vol. 771 No. 2

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

Question again proposed: "That the Bill be now read a Second Time."

I welcome the Minister for Justice and Equality, Deputy Shatter, to the House. Following the vote, there was a speeding up in the momentum of the previous item and we are slightly ahead of schedule. I call on Deputy Durkan to resume the debate and 15 minutes remain in his slot.

I am glad to have a further opportunity to contribute to this debate. On the last time I spoke on this issue, I referred to a number of points I considered to be pertinent and important. I will speak for a moment on the strengths and weaknesses of the system in so far as it deals with serious crime. I note that whatever is the strongest or weakest link can suddenly become the weakest link. While this does not simply pertain to first-time offenders or anything like that, I could never understand how, in the pursuit of serious, major crimes, it could ever have been allowed to happen that a technicality over a warrant could be the key to allowing someone ultimately to walk away. This has happened previously in this country's system over the past 20 or 30 years, which I can well recall during my time in this House. While lessons should have been learned in this regard, I do not know whether, in the context of this legislation, cognisance will be taken of the fact that one should learn from past experience, simply because it is not at all acceptable that in the event of a serious offence against the State, a citizen or the institutions of the State, the person concerned could walk free on a technicality. I have spoken on this issue in this Chamber many times and I still hold that view because technicalities are still technicalities. Consequently, I hope the Minister will put in place some procedures to ensure in future that those who commit serious crime cannot walk free on a technicality. Regardless of the circumstances, something is owed to the victims. I acknowledge this does not apply in the particular case that triggered off the issue under discussion but in general, something is owed to victims and this should be recognised. The strength of the basis on which a warrant is issued is being addressed in this regard and it is an important issue. In his previous profession, I am sure the Minister, in common with other Members, has had ample opportunity to review similar situations and the point still prevails.

I have mentioned organised crime many times in this Chamber. I also have tabled many questions on how to deal with organised crime versus what I would describe as ordinary, petty crime, and there is an issue in this regard. I believe, as the description suggests, that organised criminals are better organised and, in general, they get away with a great deal more than do first-time offenders. Fr. Peter McVerry regularly states that prison is an academy for prisoners to achieve a higher degree of proficiency in the pursuit of crime, as well as the credentials to pursue crime as a subsequent career. I have come to the conclusion he is probably right, and for a number of reasons.

In recent years, I have repeatedly tabled questions to the Minister for Justice and Equality and his predecessors to ascertain the procedures followed in particular circumstances. I have received some information that is alarming to me, namely, that there appears to be a difficulty in referring first-time offenders for rehabilitation, training courses or education. I do not know the reason for this although I have tabled numerous questions to both the present Minister and his predecessors. I do not know the reason, because by virtue of such people being first-time offenders, regardless of the sentence, to take them out of the loop of criminality in the future, it should be possible to ensure they are referred in respect of training, rehabilitation, advice or whatever is required to take them away from that area.

This should be done because in my experience, which I am sure mirrors that of the Acting Chairman and all other Members, I have encountered numerous examples of people who were vulnerable for a variety of reasons. It may have been because they were being blackmailed, were in financial difficulty or because criminal elements had identified their vulnerability and decided to make them an offer they could not refuse. In such circumstances, they were invariably caught. I have advised many constituents who were in such a position before anything happened. I refer to those who wished to discuss something with me - I am sure other Members have had similar experiences - and I warned them they were being led into a trap. Sadly, I was always right. The point is, however, their families pay the price subsequently. These are people who had never been in trouble with the law and who had never been convicted of an offence but who suddenly receive a conviction for serious crimes related to drug haulage as intermediaries.

A serious question now arises and I believe that a part of the system that must be overhauled and which could be incorporated into this Bill is one that would take cognisance of the circumstances of such people. It could encourage them away from criminality and towards the area whereby they would have an opportunity to recover their lives and regain their places in society. I refer in particular to those who acknowledge they made a mistake. Such people always do. They hold up their hands and do so in absolute submission. Consequently, I hope the Minister might see fit to recognise their position in some shape of form.

I do not wish to go into too much detail but one item of information I sought over the past year concerned the procedures followed in the determination of eligibility for referral to particular concessions while in prison. I received the stock reply, which I have always received, despite the fact I already knew the answer. I knew that although the aforementioned procedures were the procedures officially set in place, they were not being used. I do not know the reason but some time ago, I received a reply to a question which indicated to me that the rules were not being applied as was indicated. Furthermore, in respect of a serious crime that did not pertain to a first-time offender, I tabled a question asking the procedures to be followed for referral to rehabilitation, education and training programmes, and I got all the information. I have no problem in that regard and thank the Minister for it. However, the reply omitted a vital piece of information of which I was aware relating to a particular prisoner, who was referred at an early stage to a situation from whence that prisoner was able to walk free.

That is not the first time. I had a similar experience 20 years ago, and the family of the victims concerned came to me. I do not know why they came to me because they were from much further afield. The family of the victims explained their concerns and I did not believe them at the time, although the particular case has come into focus again recently. I did not believe what they were telling me, but they were correct. They told me at the time that the perpetrator would walk free and it now looks as if that is the case.

We need to get realistic about these issues because the public has a view on them as well. Clever tricks of a technical nature are very fine, but they should not be used to get somebody off who is guilty of a particularly heinous crime. The time has come to get into serious confrontation with people in that situation. The people of this country do not accept that kind of thing any longer and the fact they put up with it from time to time in the past is not an indication that they are prepared to put up with it in the future.

Even though first-time offenders may have been found guilty of a serous offence, when they have not been involved in criminal activity previously, they should be given first opportunity to access training and rehabilitation in order that they can go back into society and back to their families. I have visited prisoners in every prison in this country and in the adjoining jurisdiction as well. I believe it is my right and duty to do that if called upon, and I will continue to do it. It is important we stand over the entitlement of convicted prisoners to their constitutional rights under the law and their human rights. Nothing should impinge on that. If we recognise those things, we will do much to set parameters within which those who are guilty of crimes get their just desserts, and those who have fallen into the grasp of powerful people in the criminal world get some kind of recognition. While not approving of what they did and ensuring they pay the price, they should be given some kind of encouragement to move them away from that kind of criminal life to which they may be condemned if they stay long enough in the system to be able to qualify from, as Father McVerry has called it, the academy that is prison.

I reserve my right at all times to raise questions on any issue pertaining to the Irish Prison Service and to the treatment and the custody of prisoners. I was amazed at the degree to which the authorities in the neighbouring jurisdiction were prepared to take note of the representations by people from an adjoining jurisdiction. We have a lot to learn from that. We may not be always right, although we are not always be wrong either. It is no harm to learn from situations in adjoining jurisdictions or elsewhere. In our conclusions, I hope we can provide a more responsive system that does not allow people to walk free on technicalities. I have only touched on some of the cases that have occurred over the years and I believe more are coming along. I would like to emphasise my commitment to the law, standing order and the need to protect the citizens of this State. I reiterate my intention to ensure the rules of the law are administered equally and are open to everybody, with regard for due process and natural justice.

I wish to share my time with Deputy Pringle.

The Supreme Court challenge to the controversial section 29 warrant by Mr. Ali Charaf Damache called for swift action. I commend the Minister and his Department on providing such a speedy response to tidy up this legislative area. I have always felt that independence and transparency are essential to the integrity of the criminal justice system, and we would do victims of crime a grave injustice by delaying legislation that would prevent a major criminal from walking free because of unconstitutionally obtained evidence based on a warrant issued. The Supreme Court decision would also suggest a preference for search warrants to be judicially issued in future, or in some instances by a garda not personally involved in the investigation, rather than them being issued by any garda above a certain rank.

I welcome the fact the Bill is restrictive in stating that a warrant obtained in an urgent situation must be used within 48 hours. That is important within our justice system. I also believe a member of the Judiciary can ask the right questions to keep the legal procedures and grounds for search within the scope of the law, and so prevent cases falling apart later at public expense and to the detriment of an individual or the State.

The Garda Síochána must be in a position to take action to protect the public if circumstances of public safety arise. An example would be suspected offences involving firearms or explosives. The increasing number of people involved in the drugs trade is a serious concern and it is crucial that Garda investigations are not hampered by the inability to act in urgent circumstances to maintain safety and promote law and order. However, I and many others would say that it is equally important that the Garda Síochána has the necessary resources to go about this duty. Rank and file members have told me that cuts, including the €79 million depletion from this year's budget, are making it an uphill battle to enforce ordinary criminal justice. My constituency and many others are experiencing a significant increase in the rates of burglary. Many people feel at risk in their homes. I certainly agree with putting legislation in place that makes life more difficult for criminals, along with proper safeguards for innocent individuals. However, such legislation would be weakened if we did not also put similar resources into the Garda Síochána and its various divisions that deal with different crimes. For example, community gardaí and gardaí in special units feel they are under immense pressure to do jobs they were not put there to do in the first place.

In the current economic situation, money is short. However, the significant increase in burglaries throughout the State cannot be denied, especially if one speaks to gardaí and TDs, and much of this has to do with resources not being given to the Garda. I am obliged to say this even though the Minister may have made a decision on what resources will be available to the Garda now and in the future. I urge him and his Cabinet colleagues to proceed with signing off on and filling the substantial number of senior garda positions which are unoccupied at present. Many senior gardaí are now doing the work that two or even three officers would have done a couple of years ago, although they may not admit it.

I back this legislation and have no problem with it. None the less, however well-intentioned it is, it will do nothing to alleviate the shortage of manpower. I urge the Minister to talk to community groups and community gardaí in the coming years. When I was mayor of Waterford some years ago, I held a mayoral reception for community gardaí, who I felt were doing wonderful work. The Garda Commissioner came from Dublin to attend that reception and he acknowledged the work the community gardaí were doing. He noted frankly and in a forthright manner that the way forward in helping the community and having the community work with gardaí was to have more community gardaí on the beat and on the streets. If one looks at the position in other countries, such as in areas of London in the UK where there are huge problems with crime, they have spent huge resources on community policing in recent years.

When in opposition, the Minister spoke very forcefully on this issue, and rightly so. If one speaks to gardaí, including superintendents, and I have spoken to the former Garda Commissioner, with whom I addressed a meeting in Waterford, they have always believed one of the ways forward in dealing with crime was to put more faith in community gardaí and provide them with more resources. We would then have some hope of dealing with the increase in crime.

I am glad to have the opportunity to contribute to this debate. As the Minister said, this is a short Bill which was introduced as a reaction to the striking down by the Supreme Court of section 29 of the Offences Against the State Act 1939. The Minister has described it as a necessary weapon for gardaí in their armoury in fighting serious crime. This language in itself indicates that the intention is that these provisions will be used, and probably used frequently.

The principle on which this section was struck down is very important and goes to the heart of natural justice. Much has been said in the past about bodies investigating themselves and the same principle should apply in regard to the issuing of search warrants. When an organisation investigates itself, whether it is a political or professional body, it can very quickly become a possibility that the intention is to find ways not to investigate. This could be out of sympathy for the individuals involved or due to the perceived need not to bring disrepute on an organisation. In the case of search warrants, the pressure will be on a garda not to refuse a warrant, even if he has misgivings about the intention of the warrant or the need for it.

The Minister said the striking down of section 29 has the potential to hamper investigations in situations of urgency where there may not be time to contact a judge. Surely there could also be a difficulty contacting a garda above the rank of superintendent in a parallel command, which in some cases could be in a different division altogether.

The Supreme Court ruling on the search warrants laid down the principles that should be involved. First, there is the principle of independence, where a warrant should be issued by a person who is independent and this person should also be satisfied on the basis of sworn information that reasonable grounds exist to issue that warrant. Second, there is a requirement to act judiciously. The granting of a search warrant is an act that is administrative in nature and is not an aspect of the administration of justice. That being so, there is a requirement that a warrant must be granted by a judge. Third, there is the principle of urgency, where there is some provision that a warrant should be issued by a member of the Garda. The court held that these situations were dependent on the existence of urgent circumstances, and this was an important consideration in determining the proportionality of legislation which could impinge on constitutionally protected rights.

These principles of independence, acting judiciously and restrictions on the issues around urgency have been identified by the courts in this issue. Subsection (12) of the Bill attempts to establish the independence of the garda who will issue the warrant in the special circumstances identified. This is described as a garda who is not in charge of or involved in the investigation. The Minister states that, in practice, this will be an officer in a parallel command but, with the best will in the world, will there ever be a circumstance where a warrant will be refused? It may be that there are never times when a judge refuses a warrant but at least that independence is clearly established when an application is being made. I believe there will be massive pressure on gardaí not to refuse a warrant and they should not be put in that situation. The pressure of colleagues looking for a warrant and having it refused would be too much to bear.

Mr. Justice Morris also highlighted these difficulties with section 29 in his report on the Donegal Garda situation, and it is for the very same reasons that this section was struck down. I do not believe this Bill will reduce those reasons and we could face the possibility of future challenges to the legislation. It would make more sense if the Bill sought to establish a panel of District Court judges who would be available at short notice to assist gardaí in their investigations. When someone might be put at risk of their liberty and facing serious possible charges, it is incumbent on the justice system that every step is taken to ensure natural justice is followed. There are enough District Court judges to enable a panel to operate and, in this day and age, I am sure acceptable conferencing facilities could be provided to have hearings held in such a way that would allow the warrant to be issued with the proper oversight and with the urgency that may be required. This would ensure the rights of everyone could be protected, gardaí would not be put in a difficult situation and it would not be possible for the legislation to be challenged in the future. This would be a better and more satisfactory way to proceed.

I wish to share time with Deputy Terence Flanagan.

I thank the Chair for the opportunity to speak. The Bill before us seeks to amend the law relating to the procurement of search warrants, particularly in light of the Supreme Court decision in Damache v. the Director of Public Prosecutions, DPP, in which it was held that section 29 of the Offences Against the State Act 1939 was unconstitutional. Another important feature of the Bill is the fact it amends provisions in regard to search warrants procured in regard to drug legislation.

The right to enter someone's home or premises is a significant power given to the Garda Síochána and other bodies and is one which must be treated with the utmost respect as it overrides people's constitutional rights to the enjoyment of their property. The greater good has often been cited as a reason for this interference, and drug legislation is an example of where overriding a person's property rights can be justified in terms of safeguarding the public from dangerous narcotics.

The court ruling in Damache v. the DPP found that the law as it stood was unconstitutional because it permitted a garda who was involved in an investigation to issue a search warrant, breaching a central rule of natural justice that no man is a judge in his own cause. It is imperative to note in this case that while a finding of unconstitutionality is retrospective, remedies usually operate prospectively only, and the application of the ruling will be applied only to those people whose cases have not been fully determined.

The ruling in that case is not the first time the validity of such warrants has been questioned. The Morris tribunal expressed what it termed "disquiet" over the fact that investigating gardaí in Donegal were empowered to issue a search warrant to themselves and recommended that warrants should be issued by a judge, with a senior garda only issuing a warrant in limited circumstances when time was of the essence. Under the new section 29, a judge of the District Court may issue a warrant if he or she is satisfied there are reasonable grounds for believing that evidence is to be found at the named location.

An important change relates to the circumstances in which a warrant may be issued by a garda. The power of a garda to issue a warrant is limited to where the garda believes the warrant is necessary and also that it is being sought in circumstances involving such urgency that it would be impractical to make an application for the warrant before a District Court judge. It also requires the issuing garda to be entirely independent of the investigation of the relevant offence. This is a welcome change to the legislation. The involvement of an outside garda is not only important in adhering to the principles of natural justice, it is also important in ensuring transparency in the legal process. It represents a double safeguard. Given the various incidents uncovered by the Morris tribunal in Donegal, such safeguards are both wise and necessary.

Search warrants are an important tool for the Garda but the entire justice system is damaged if such warrants are improperly used. Accordingly, there are strict provisions as to when a warrant can be sought, who can enter the premises and the timeframe for which the search warrant is valid. A search warrant issued by a District Court judge remains valid for one week from the date of issue while a warrant issued by a Garda superintendent is only valid for 48 hours. The provisions of a search warrant allows a garda acting on a warrant to require any person present in the venue being searched to give his or her name and address. Anyone who obstructs a garda carrying out a search warrant by refusing to give a name or address or by giving a false or misleading name or address can be arrested. A new provision in the Bill requires that the garda issuing the warrant must record in writing the grounds on which the warrant was issued, as well as the time.

The provisions of this Bill are a sensible reaction to the court ruling in the Damache case and will improve the security and transparency of the search warrant system. The necessity of changing the legislation simply underlines the importance that must be attached to measures such as search warrants that override people's constitutional rights to enjoy their property. I believe this Bill takes due cognisance of the need to safeguard the rights of all involved.

I, too, welcome the Criminal Justice (Search Warrants) Bill 2012, which is focused legislation that moves to improve the search warrant system in place. It is vital a clear system is in place to ensure An Garda Síochána is able to conduct its work in a timely, efficient and effective manner. I recognise the importance of the Bill and the speed at which the Minister for Justice and Equality has sought to address the problems with section 29 of the Offences Against the State Act 1939 which came to light in the recent court case, Damache v. the Director of Public Prosecutions in February 2012. The section was deemed to be unconstitutional because it allowed a person who was not independent of an investigation to issue a search warrant for a property. Legislation to deal with this has been brought before the House in a matter of months since the trial and I commend the Minister, Deputy Shatter, in this regard.

It is important this legislation is introduced as a matter of urgency to ensure those who commit crimes are brought to justice and receive the correct conviction. Worryingly, several cases before the courts have been quashed already or withdrawn by the State because search warrants used in the investigations were issued by gardaí who were not independent of the case. This is a shocking situation and particularly worrying for the victims of crime. The public wants to see those involved in crime doing the time when convicted.

Members of the Garda Síochána were able to issue search warrants without the requirement that the issuing garda should be independent of the investigation. The purpose of this Bill is to introduce the necessary changes to law to ensure those issuing search warrants have no active involvement in the case. Once enacted, the legislation will increase the ability and the effectiveness at which the Garda will be able to investigate terrorist activities and other urgent cases such as those involving firearms and drugs. Changes to the current search warrant system will include that applications for a search warrant will have to be made through a District Court judge, except in urgent cases involving firearms and drugs or where any delays could result in the destruction and tampering of evidence. In such cases, the warrant can be issued by a Garda superintendent who is not involved in the investigation.

I am glad there is cross-party support for the Bill. It is clear the legislation must be enacted as soon as possible. I commend the Minister, Deputy Shatter, and his officials on their hard work to ensure this happens. It is balanced legislation which successfully addresses the issues which were brought to light in the Damache case in February this year. Its introduction will only help to strengthen the search warrant system in Ireland.

I concur with previous speakers on the urgency of this Bill. Having studied it in great detail over recent days, I know the problems it addresses put members of An Garda Síochána at an extreme disadvantage, which is why the swift passage of this legislation is of great importance. We are fighting highly organised crime and we need An Garda Síochána to be able to take swift action when it comes to the issuing of search warrants. Since the Supreme Court judgment on search warrants in February 2012, many Garda investigations have been held up or even interfered with. We need to be practical and sensible about this issue.

For example, an investigating garda could be in possession of vital information about the whereabouts of a firearm that may have been used in a particular crime. However, it may be necessary to act on this information quickly. It is not as though the garda can dilly-dally, waiting to get the warrant and execute it. In such cases, the Garda Síochána needs to act swiftly, and that is why I am supporting what the Minister is trying to achieve in this legislation. It is for the greater good. We are at a time when outrageous and serious crimes are being perpetrated every day. We have had horrible situations recently of bombs left in places which have caused serious injury to children. There are incidents of shots fired into windows of houses at night.

The Garda is really up against it. The force is poorly resourced and cutbacks are hampering and interfering with its work on the behalf of all law-abiding citizens. Being a garda, a sergeant, an inspector or a superintendent is a difficult post. While I will not say they are losing the war against crime, it is being put up to them by these highly organised and financed people engaged in all forms of illegal activity. Any work we can do politically through this Bill to ensure Garda investigations are assisted by the swift implementation of search warrants must be commended.

Debate adjourned.
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