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Select Committee on Legislation and Security díospóireacht -
Tuesday, 18 Jun 1996

Criminal Justice (Drug Trafficking) Bill, 1996: Committee Stage (Resumed).

NEW SECTION.
Debate resumed on amendment No. 31:
In page 8, before section 7, to insert the following new section:
"7.—(1) If a member of the Garda Síochana, not below the rank of Superintendent has reasonable grounds for believing that—
(a) a person is in possession, in contravention of the provisions of the Misuse of Drugs Acts, 1977 and 1984, on any premises of a controlled drug or any documents relating to the importation, possession or distribution of a controlled drug, and
(b) there is a serious risk that the controlled drug or document may be moved or destroyed if the premises is not searched immediately, and
(c) it is not practicable in the time available to make an application for a search warrant pursuant to section 8 of the Misuse of Drugs Act, 1977, or pursuant to section 3 of the Customs and Excise (Miscellaneous Provisions) Act, 1988,
such member of the Garda Síochána may issue a search warrant mentioned in subsection (2) of this section.
(2) A search warrant issued under this section shall be expressed and operate to authorise a named member of the Garda Síochana, accompanied by such other members of the Garda Síochana as may be necessary, at any time within 3 hours of the time issue of the warrant, to enter, if need be, by force the premises named in the warrant, to search the premises and any person found therein, to examine any substance or article found therein, to inspect any book, record or other document found therein and if there is reasonable grounds for suspecting that an offence has been or is being committed under the Misuse of Drugs Act, 1977 and 1984 in relation to a substance or article found on the premises or that a document so found, is a document of the class mentioned in Subsection (1)(a) of this section or is a record or other document which the member has cause to believe to be a document which may be required as evidence in proceedings for an offence to seize and detain the substance, article or document as the case may be.
—(Deputy O'Donoghue).

I welcome the Minister for Justice, Deputy Owen, who is present to resume consideration of the Criminal Justice (Drug Trafficking) Bill, 1996. At our last meeting Deputy O'Donoghue moved amendment No. 31. I remind the committee that it was decided to group this amendment and amendment No. 33 for the purposes of debate.

On the last occasion I discussed the general terms of this amendment in detail. Subsection (2) of the amendment speaks for itself and there is no need for me to elaborate on it.

Section 7 relates to the issue of search warrants by a member of the Garda Síochána not below the rank of superintendent. The constitutionality of gardaí issuing warrants is open to doubt on the grounds that it excludes the role of an independent person not connected with the investigation of criminal offences. However, we assume that this does not make the section unconstitutional.

Amendment No. 33 proposes to reduce the time for which a warrant remains in force from 24 hours to 12 hours. As is clear from subsection (2)(b) of the section, the point of having a warrant issued by a garda is because he or she must be satisfied "that circumstances of urgency giving rise to the need for the immediate issue of the search warrant would render it impracticable to apply to a judge of the District Court or a Peace Commissioner. . . . ". It is proposed to reduce the time limit on the grounds that it is inconceivable that it would remain impracticable to apply to a judge or peace commissioner for a 24 hour warrant. Accordingly, I propose to reduce the duration of the warrant to 12 hours. If the need for a warrant is likely to continue beyond that time, an application can be made to a judge or peace commissioner. That is the reasoning behind the amendment.

The issue of search warrants is dealt with under section 7. As Deputy O'Donnell stated, a garda not below the rank of superintendent may issue a search warrant once he or she is satisfied that it is necessary for the proper investigation of a suspected drug trafficking offence and that the circumstances of urgency giving rise to the need for the immediate issue of the search warrant would render it impracticable to apply for its issue under section 26 of the Misuse of Drugs Act.

Deputy O'Donoghue's amendment is quite similar to the provisions in the Bill. I believe the criteria set out in section 7 provide the best way to approach this issue, rather than using those specified by the Deputy. I am concerned that his amendment does not appear to be confined to drug trafficking cases and could be used in cases of possession of small quantities of drugs for personal use. That is not the aim of this Bill, which is designed to enable investigation of serious drug trafficking cases. It is correct to confine the powers in the Bill to such cases. The criteria set out in section 7 provide appropriate safeguards and operational flexibility for the Garda Síochána. The aim of this legislation is to ensure that there are appropriate and effective safeguards and operational methods for the Garda Síochána to deal with what is a serious crime.

Under the Deputy's proposal the warrant would expire after three hours whereas I propose that it last for 24 hours. The time limit proposed by Deputy O'Donoghue is too short and I would prefer to keep to my limit. Deputy O'Donnell has proposed an in-between figure of 12 hours and I would like to consider that before Report Stage. I am inclined to think 24 hours is the right amount of time and I wish to consult the Garda to see if they would have a difficulty with 12 hours. I want to introduce methods, with inbuilt safeguards, for getting work done. I do not want the timeframe we set for the Garda to mean that they spend their time doing paperwork. The period should be suitable for the type of investigation they want.

Because of the nature of the crime we are increasing the length of time for which people can be held to seven days, with safeguards. I do not want bureaucratic mechanisms to tie the hands of the Garda or prevent the legislation being effective. I would prefer 24 hours but if Deputies opposite push me to consider 12 hours, I will return on Report Stage having taken soundings from the Garda as to whether that period would be too short. I do not think the issue is one on which the committee should divide.

The objective of amendment No. 31 is to provide for search warrants in respect of alleged or suspected offences under the Misuse of Drugs Acts, 1977 and 1984. In order to achieve a balance and ensure that any such search warrant would be confined to offences involving drug trafficking, the amendment provides that the time limit would be three hours — in other words, there would be urgency about the matter, which would be the reason for issuing the warrant in the first instance. It could not be envisaged by any stretch of the imagination that a warrant in existence for three hours would be commonplace or would be utilised in order to find what the Minister describes as a small amount of drugs but would rather be broadly in line with the intent of the legislation. However, I will not press the issue and therefore withdraw the amendment.

I am glad the Minister is willing to consider reducing the time before Report Stage, having checked whether it is reasonable to allow a period of 12 hours. As I said in moving my amendment, it is inconceivable that it would remain impracticable to apply to a judge or a peace commissioner within 24 hours. Perhaps a shorter period of time would be a more careful way to progress as we are talking about the gardaí issuing warrants without an independent person who is unconnected with the investigation of criminal offences being involved. I accept the Minister will look at this matter before Report Stage and we can revisit the matter then.

Amendment, by leave, withdrawn.
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