Damache and Constitutional Retrospectivity

In February of this year a most significant decision was handed down by the Supreme Court in the area of criminal procedure. This decision, Damache v DPP [2012] IESC 11 (discussed here), found that s.29(1) of the Offences Against the State Act 1939, which had been in operation for the past 36 years having been inserted by s.5 of the Criminal Law Act 1976, was contrary to the Constitution. The provision allowed for a member of the Garda Síochana not below the rank of superintendent, to issue a search warrant in certain specified circumstances. It did not, however, specify that such warrants should only be issued by members of appropriate rank who were independent of the relevant investigation. It was with this omission that the Supreme Court found fault. Indeed, this omission, and the Garda practice of having superintendents who were directly involved in an investigation issue warrants under s.29(1) had previously been criticised by Justice Morris in the “Burnfoot Module” of the Morris Tribunal Report (2008). In para 6.22 of that Module the learned Chairperson of the Tribunal observed that

The danger exists that a warrant would be issued automatically and without proper investigation of the matter by the superintendent to whom the application is made if he or she is heading the investigation. There is a danger that the power to issue a section 29 warrant thereby becomes a mere formality in which the investigating Sergeant might as well be empowered to issue a search warrant to himself.

The Supreme Court in Damache held that the issuing of search warrants is an administrative act but it must be exercised judicially. Accordingly, independence is necessary in the exercise of the act. This, along with the importance of the constitutional protection of the inviolability of the dwelling, under Art 40.5, led the Court to find that s.29(1) was repugnant to the Constitution given that it did not insist on independence in the garda issuing of the relevant search warrants.

An obvious question which arose in the aftermath of the Damache decision is what impact this finding would have on other previously-decided cases. Is a finding of unconstitutionality retrospective or not? Continue reading “Damache and Constitutional Retrospectivity”

Damache and Constitutional Retrospectivity

Self-issued Search Warrants and Constitutional Rights

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 [2012] 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. Continue reading “Self-issued Search Warrants and Constitutional Rights”

Self-issued Search Warrants and Constitutional Rights