The High Court dismissed Ali Charaf Damache’s judicial review challenge to the constitutionality of a law allowing a senior Garda officer to issue a search warrant in certain State security investigations. The court held that the provision was proportionate in the context of the case, but also found the challenge had been brought outside the required time and without sufficient promptness.
Mr Damache had been granted leave in December 2010 to seek a declaration that section 29(1) of the Offences Against the State Act 1939 was repugnant to the Constitution. The provision allows a Garda member of superintendent rank or higher, satisfied there are reasonable grounds to believe relevant evidence is at a place, to issue a warrant to a Garda member of sergeant rank or higher.
The judgment said the challenge was based on the claim that Detective Superintendent Dominic Hayes, who had an active role in the investigation, issued a warrant in his own cause. The court accepted that the constitutional point could be considered through judicial review. It also said that, under the Court of Criminal Appeal’s interpretation of the law in DPP v Birney, the trial judge could not decide whether the warrant was improperly issued because Hayes was involved in the investigation.
However, the court found that the judicial review application was late. Mr Damache had the relevant information by 24 May 2010, when he received the book of evidence, but sought leave on 2 December. The judgment said the application was outside the three-month period in the Rules of the Superior Courts and had not been brought promptly. No explanation had been given for the delay by his former legal advisers.
On the constitutional issue, the judge applied the proportionality test from Heaney v Ireland. He said the security demands of countering international terrorism were materially different from those involved in routine crime, and that evidence could be lost rapidly without timely action. Although no formal evidence had been presented that evidence was about to be destroyed in this case, the court found the statutory provision proportionate in its particular context. It also said the seniority of the issuing and receiving officers provided reasonable reassurance of safeguards.
The judgment did not decide whether the evidence supporting the warrant was adequate or whether the search was properly carried out. Those matters, along with other complaints about Garda conduct, could be raised at trial. The court dismissed the claim.