The Court of Criminal Appeal has allowed the appeals of Jason Kavanagh, Mark Farrelly and Christopher Corcoran on a preliminary issue and ordered a retrial for each, after ruling that search warrants issued for their homes under section 29 of the Offences Against the State Act 1939 were invalid.
In a judgment delivered by Chief Justice Denham on 24 May 2012, the court considered whether the three men could rely on the Supreme Court’s decision in Damache v DPP, which found section 29 unconstitutional because it allowed a search warrant to be issued by someone who was not independent.
The men had been convicted by a jury in July 2009 of false imprisonment and robbery. They were jointly accused with David Byrne and Niall Byrne; the jury did not reach a verdict on the charges against the two Byrnes. The appeals before the court concerned Kavanagh, Farrelly and Corcoran. Their convictions and sentences were imposed in November 2009.
The court found that the validity of the section 29 warrants had been raised during the trial and in the men’s appeal notices. Although the trial judge could not rule on the constitutionality of the law, the Court of Criminal Appeal said the issue had been raised on behalf of all three applicants. Their appeals were still pending when Damache was decided, and the court found that they had not waived or accepted the validity of the warrants.
The warrants were issued by Superintendent Conneely, who was involved in the investigation. The court noted that they authorised searches of the applicants’ dwellings and that there was no urgency. It held that the cases fell within the principles in Damache and that the finding of unconstitutionality applied to the applicants because their proceedings had not reached finality.
The court therefore ruled that the warrants were invalid and that the convictions could not stand. It allowed the appeals on that preliminary issue and ordered retrials. The judgment expressly dealt with no other issue; it did not determine the remaining grounds of appeal or the outcome of any retrial.