I move:
That leave be granted to introduce a Bill entitled an Act to amend the various acts to remove the ability for members of An Garda Síochána to issue authority to search premises without sworn information being required.
I thank the Ceann Comhairle. This is a Bill about ensuring justice and fair procedures and protecting the rights of individual citizens. A search warrant allows the State significant power, overriding constitutional protections of individuals, their home and their property. It is for good reason. It allows for protection of the common good and safety of all citizens through the proper investigation of crime and of criminals. However, because of this power, we must be careful in how we use and balance it. In the landmark case of Damache, which dealt with the issue of search warrants, Chief Justice Denham said:
The procedure for obtaining a search warrant should adhere to fundamental principles encapsulating an independent decision maker, in a process which may be reviewed. The process should achieve the proportionate balance between the requirements of the common good and the protection of an individual’s rights.
The Chief Justice went on to acknowledge that the full panoply of rights cannot apply in cases of search warrants. Obviously the person whose rights are being overridden cannot be put on notice for very reasonable reasons. There is no cross-examination of the evidence. Again, in the words of Chief Justice Denham, "For the process in obtaining a search warrant to be meaningful, it is necessary for the person authorising the search to be able to assess the conflicting interests of the State and the individual in an impartial manner." In that case, the court ruled that a garda who is issuing a search warrant must be independent of the investigation and that warrants given by a garda, no matter what rank, connected to the investigation were not independent enough and did not stand up to constitutional rigour and therefore amounted to an unconstitutional search.
If we follow the logic of this case, the ultimate conclusion is that no garda should be issuing a search warrant and that it should always be done by an independent, impartial decision-maker, namely, a judge, and there should be judicial oversight. Looking at the cultural audits that have happened in An Garda Síochána and what has happened to gardaí who speak out, raise their head, go against the flow and are punished for it, the fear of speaking out adds to the weight that no garda can really be independent and that no garda, therefore, should be issuing a search warrant because it fails to meet the basic tests of the idea that the garda is an individual deciding in an impartial manner. We need to consider the issues of urgency and proportionality. There will be times when a search warrant is urgent, when there are issues that need to be addressed, where perhaps the destruction of evidence is a real risk. Again, we need to look at this through a lens of proportionality. When we are examining proportionality in a legal sense, we have to ensure we are taking steps towards a legitimate aim and doing so in a way that tramples on rights as little as possible.
What we are doing by allowing gardaí to bring their own search warrants is simply papering over the cracks in our courts system and judicial system. In plenty of other jurisdictions, police forces do not have the power to issue their own search warrants. They go to a system of out-of-hour judges. If we are to be truly proportionate, we should invest in our courts to ensure there is a sufficient number of District Court judges, who are those impartial decision-makers and can strike the proportionate balance between the requirements of the common good and the protection of the individual's rights, and not allow us to continue to take procedural shortcuts through a person's rights simply to paper over the cracks and a legacy of underinvestment in our judicial system. While I am glad that in recent months we have expanded the number of members of the Judiciary, we need to expand the numbers further to ensure there is access to a District Court judge, no matter what time, day or location, so there can be proper, impartial oversight and a full protection of the rights of the individual against the State.
The Bill is simple. It simply looks at the provision under four pieces of legislation that allow for gardaí of sufficient rank to issue their own search warrant and repeals them. This is a simple, straightforward Bill but one which has far-reaching consequences. They are positive consequences because, as I said, they ensure the proportionate balance between the common good and the protection of the individual rights.
