The Supreme Court has declared unconstitutional a provision that allowed a Garda superintendent involved in an investigation to issue a search warrant, after finding that the provision permitted a search of Ali Charaf Damache’s home without an independent decision-maker.
The judgment, delivered by Chief Justice Susan Denham on 23 February 2012, concerned section 29(1) of the Offences Against the State Act 1939, as amended. The Court said the warrant in this case was issued by a member of the Garda investigating team, and that an investigating-team member was not independent on matters related to that investigation.
The warrant was issued on 8 March 2010 for Damache’s dwelling at 1 John Colwyn House, High Street, Waterford, and executed the following day. The judgment recounted that he was arrested on suspicion of conspiracy to murder, but was later charged with sending a menacing telephone message on 9 January 2010, contrary to section 13 of the Post Office (Amendment) Act 1951. Those details were set out in the judicial review materials; the Supreme Court appeal concerned the constitutionality of the warrant provision, not the validity of the individual warrant or the criminal charge.
Damache sought judicial review, including a declaration that section 29(1) was repugnant to the Constitution. The High Court refused his application on 13 May 2011. Although it considered the appeal had been brought late and before a criminal trial, the Supreme Court decided the constitutional issue to avoid further delay and cost. It said the case was premature in that no trial evidence had been given, but noted Damache had been affected because his home had been searched under the section.
The Court said search-warrant authorisation must allow an impartial assessment of the competing interests of the State and the individual, and that the decision-maker should be independent and act judicially. It also emphasised the constitutional protection of the dwelling. The Court’s decision rested on two circumstances: the warrant was issued by an officer on the investigating team, and the place searched was Damache’s home.
The Court expressly said it had not considered situations of urgency. It declared section 29(1) repugnant to the Constitution because it permitted the search of Damache’s home, in the circumstances of the case, on a warrant not issued by an independent person. The judgment did not determine the criminal charge or make a ruling on the validity of the warrant itself.