Supreme Court judgments are coming thick and fast at the moment as two of the members of the bench (Finnegan and Macken JJ.) are set to retire at the end of the month. Last Thursday alone five judgments were issued including one rejecting a constitutional challenge to the Criminal Law (Sexual Offences) Act 2006. In another of the judgments, the focus of this post, a constitutional challenge had greater success.
Damache v DPP  IESC 11 centred on the constitutionality of s.29(1) of the Offences Against the State Act 1939, as amended by s.5 of the Criminal Law Act 1976. The appellant was initially suspected by the Gardaí of involvement in a conspiracy to murder Lars Vilks, a Swedish cartoonist who had depicted the Islamic prophet Mohammad with the body of a dog. The appellant was also suspected of making a threatening phone call to an individual in the US. Following approximately six months of investigation, the Gardaí decided to search the dwelling of the appellant and, under the terms of s.29(1) as amended, Detective Superintendent Dominic Hayes issued a search warrant for that dwelling. The warrant was issued on March 8th 2010 and executed on the following day.
Section 29(1), as amended, reads:
Where a member of the Garda Síochána not below the rank of superintendent is satisfied that there is reasonable ground for believing that evidence of or relating to the commission or intended commission of an offence under this Act or the Criminal Law Act, 1976, or an offence which is for the time being a scheduled offence for the purposes of Part V of this Act, or evidence relating to the commission or intended commission of treason, is to be found in any building or part of a building or in any vehicle, vessel, aircraft or hovercraft or in any other place whatsoever, he may issue to a member of the Garda Síochána not below the rank of sergeant a search warrant under this section in relation to such place.
Detective Superintendent Hayes had been involved with the investigation over the course of a number of months and it was he who then issued the impugned search warrant. The appellant essentially argued before the Supreme Court that it was unconstitutional to allow for a search warrant to be issued by a person connected with the investigation. A search warrant, it was argued, should only be issued by an independent, impartial person.
Section 29(1) was previously considered by the Court of Criminal Appeal in People (DPP) v Birney  1 I.R. 337. However, the constitutionality of the section could not be and had not been addressed by that Court. In Birney, as in the instant case, it was argued that a search warrant issued under s.29(1) was invalid as it had not been issued by a superintendent independent of the relevant investigation. Considering whether s.29(1) could be read to include a requirement that the warrant be only so issued, the Court of Criminal Appeal had adopted a literal approach to interpretation, holding that no such requirement formed a part of the provision. The Supreme Court in Damache agreed with this view and noted that s.29(1) does not preclude the issuing of the warrant by a superintendent involved in the relevant investigation. However, this very fact proved fatal to the provision in the eyes of the Supreme Court when examining the constitutional dimension.
In relation to search warrants generally, the Court noted that the issuing thereof is an administrative act, but it must be exercised judicially (para.34). In this regard the Court observed that the principle that a person issuing a search warrant should be an independent person is well established (para.27). This, Denham C.J. contended, is an important aspect of the issuance of a warrant, as is the requirement that the person so issuing must be satisfied on receiving sworn information that there are reasonable grounds for a search warrant (para.36).
The importance of the constitutional protection for the inviolability of the dwelling provided under Art. 40.5 of the Constitution was emphasised by the learned Chief Justice. She further noted that the Oireachtas may interfere with constitutional rights, but only where such interference can be said to be proportionate. The respondents in the instant case sought to argue that s.29(1) was proportionate in allowing for the issuance of a search warrant by a member of the Garda Síochána not below the rank of superintendent (rather than by a Peace Commissioner or a judge of the District Court), in the context of the risk to society posed by offences against the state (para.31). The Court clearly did not agree with this assessment.
It was held that s.29(1) was
repugnant to the Constitution as it permitted a search of the appellant’s home contrary to the Constitution, on foot of a warrant which was not issued by an independent person (para.59).
There are a number of other provisions on the statute book which purport to allow for the issuance of a warrant by a member of the Garda Síochána not below a certain rank. These were listed in the case itself and include, inter alia, s.14 of the Criminal Assets Bureau Act 1996 (allows a search warrant to be issued by a District Judge or, if immediate action is necessary, by a Superintendent or higher); s.8 of the Criminal Justice (Drug Trafficking) Act 1996 (allows a search warrant to be issued by a District Judge or, if immediate action is necessary, by a Superintendent or higher); and s.7 of the Criminal Justice (Surveillance) Act 2009 (provides that in cases of urgency a surveillance warrant can be issued by a Garda Superintendent, a Colonel in the Defence Forces, or a Revenue Principal Officer).
It is unclear whether the decision in Damache has an impact on the ongoing application of these other provisions. Denham C.J. seemed at pains to confine the decision to the factual scenario that arose in the instant case whereby the issuing garda had been involved in the relevant investigation for some time. However, none of the three provisions listed specifies that the issuing garda must be unconnected with the relevant investigation. On the basis of the literal approach adopted in Birney it is likely that such an interpretation cannot be read into the provisions either. One saving grace that those provisions do have, however, is the requirement that a circumstance of urgency or need for immediate action is in place prior to their execution. This was not required under s.29(1) and Denham C.J. seemed to emphasise this on a number of occasions in her judgment. Towards the end of that judgment she overtly stated that
No issue of urgency arose in this case, and the Court has not considered or addressed situations of urgency (para.57).
The requirement of urgency or immediate action in the other provisions listed within the case may save them from falling foul of the Constitution, rendering their interference with rights proportionate, though we will have to await an appropriate case for clarification of this matter.
One final thought which occurs is whether the decision in Damache is likely to have any collateral impact on provisions allowing for the extension of investigative detention periods on the authorisation of a member of the Garda Síochána not below a certain rank. Several of these provisions are in existence including s.30 of the Offences Against the State Act 1939, as amended; s.4 of the Criminal Justice Act 1984, as amended; s.2 of the Criminal Justice (Drug Trafficking) Act 1996; and s.50 of the Criminal Justice Act 2007. When any detention under these provisions reaches the 48-hour mark, authorisation for further extension (where provided for by legislation) must be sought from the District Court (or the Circuit Court in certain circumstances). Prior to that point, extensions (as provided for in legislation) may be granted by a member of the Garda Síochána not below a certain rank (e.g. chief superintendent). There is nothing in any of the relevant provisions to require that the authorising garda should be independent of the relevant investigation, or that circumstances of urgency should exist.
An argument could surely be made that the authorisation of further detention is an administrative act that must be exercised judicially, akin to the issuing of a search warrant, and the right to liberty is surely as important as the inviolability of the dwelling. In this context, it seems at least arguable that any authorisation of extended detention should at the very least only be granted by or sought from a Garda of a certain rank unconnected with the relevant investigation.
Case-law suggests that this is not necessarily the practice. Indeed, in Doody v Governor of Whitehall Garda Station  IEHC 469, where an argument was raised in relation to the delay of the chief superintendent in recording in writing his oral instruction to extend the detention of the applicants, the excuse proffered for the delay was that the relevant chief superintendent was very busy choreographing the wide-ranging investigation of which the arrest and detention of the applicants was just one part. The operation involved huge complexity and manpower and it took place across counties Dublin, Cork, Wexford and Cavan. The relevant chief superintendent was in overall command and control of the operation as well as the conduct of the investigation and questioning of persons arrested. Although no constitutional issue relating to independence or impartiality arose in Doody, surely even common sense would dictate that decisions relating to the ongoing detention of suspects ought not to be made by the person in charge of the whole investigation.
Independence and transparency are essential to the integrity of the criminal justice system and the decision in Damache may force reflection on several corners of shadow in the decision-making processes therein.