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Judgment Title: Damache v DPP
Neutral Citation:  IESC 11
Supreme Court Record Number: 253/11
High Court Record Number: 2010 1501 JR
Date of Delivery: 23/02/2012
Court: Supreme Court
Composition of Court: Denham C.J., Murray J., Hardiman J., Fennelly J., Finnegan J.
Judgment by: Denham C.J.
Status of Judgment: Approved
Notes on Memo: Judgment of the Court delivered by The Chief Justice
THE SUPREME COURT
[Appeal No: 253/2011]
Ali Charaf Damache
The Director of Public Prosecutions, Ireland,
and the Attorney General
Judgment of the Court delivered on the 23rd day of February, 2012 by Denham C.J.
1. This is an appeal by Ali Charaf Damache, the applicant/appellant, referred to as “the appellant”, from the decision of the High Court (Kearns P.) given on the 13th May, 2011, refusing the appellant’s application.
(b) a stay on any further step being taken in the prosecution presently before Waterford Circuit Criminal Court entitled D.P.P. v. Charafe Damache (Bill No. CT0041/10), pending the determination of these judicial review proceedings.
4. Caroline Egan, basing her affidavit on the statement of Detective Superintendent Hayes, deposed that it would appear that:-
It was suspected that the Applicant was involved in the said conspiracy along with other individuals resident in Ireland. It was also subsequently suspected that on the 9th January 2010, the Applicant made a threatening phone call to an individual in the United States.
During the course of the investigations, D/Superintendent Hayes personally received from D/Superintendent Peter Kirwan, of the Crime and Security Section of An Garda Síochána, intelligence reports from the FBI and phone recordings made in the United States. D/Superintendent Hayes personally applied to Chief Superintendent Kevin Donahue for telephone billing relating to a mobile phone connected to the investigation.
On the 5th and 8th March 2010, D/Superintendent Hayes conducted briefings at Waterford Garda Station and heard from D/Inspector Michael Leahy in relation to the progress of the investigation.
On the 8th March 2010, D/Superintendent Dominic Hayes granted a search warrant under s. 29(1) of the Offences Against the State Act 1939 (as inserted by s. 5 of the Criminal Law Act 1976) to D/Sergeant David Walsh. The search warrant was granted in relation to 1 John Colwyn House, High Street, Co. Waterford, the Applicant’s dwelling at the time, and was executed on the 9th March 2010.”
6. The appellant has been charged with an offence, but not the offence on which he was arrested. Ms Egan deposed that the appellant was subsequently detained at Waterford Garda Station and charged with an offence contrary to s. 13 of the Post Office (Amendment) Act, 1951, as amended, that he did on the 9th January, 2010 send a message by telephone which was of a menacing character to Madjid Moughni. Ms. Egan deposed that it is alleged that the appellant made the said phone call on a Nokia mobile phone which was seized during the search.
7. Ms. Egan further deposed that the appellant was served with a book of evidence in relation to the charge at Waterford District Court on the 24th May, 2010. She deposed that she was unaware of the date he was returned for trial, as she came on record in relation to the appellant’s case on the 17th November, 2010, and that the appellant was previously represented by a different solicitor.
8. In her affidavit Ms. Egan sets out the grounds for the application for judicial review. These include:-
(b) I say that D/Superintendent Hayes has asserted that the warrant was issued because he was satisfied that he had reasonable grounds for believing that evidence relating to the unlawful possession of firearms within the State would be found at the home of the appellant. I say it is not clear from the Book of Evidence to what this is alleged to relate.
(c) I say that while I am not in possession of all relevant information in relation to the said investigation, it would appear that an impartial decision-maker might have refused to issue a search warrant for the dwelling in relation to the possession of firearms within the State.
(d) I say that in any event, the appellant was entitled as a matter of natural and constitutional justice to have the decision in relation to the said search warrant made by a judicial personage or, at the very least, by someone impartial and unconnected with the investigation.
(e) I say and believe, however, that having regard to the decision of the Court of Criminal Appeal in D.P.P. v. Birney & Others  1 I.R. 337, the wording of s. 29(1) cannot be understood to mean that the member of An Garda Síochána who issues the search warrant must be independent of the investigation to which the search warrant relates.
(f) I say that, accordingly, s. 29(1) of the Offences Against the State Act, 1939 (as inserted by s. 5 of the Criminal Law Act 1976) is repugnant to the Constitution as it permits a member of An Garda Síochána who has been actively involved in a criminal investigation to determine whether a search warrant should issue in relation to the said investigation. [ … ].
9. There was delay by the appellant in seeking judicial review. The background facts include the following:-
(ii) The search warrant was granted in relation to 1 John Colywn House, High Street, Waterford.
(iii) The warrant was executed on the 9th March 2010.
(iv) The appellant was present at the time of the search, along with members of his family.
(v) The appellant was arrested for conspiracy to murder contrary to s. 71 of the Criminal Justice Act 2006. The appellant was later charged with an offence contrary to s. 13 of the Post Office (Amendment) Act 1951, alleged to have been committed on 9 January 2010.
(vi) The appellant was charged on the 15th March 2010 with the offence contrary to s. 13 of the Post Office (Amendment) Act, 1951.
(vii) On the 24th May 2010 the appellant was served with the Book of Evidence.
(viii) The appellant sought and obtained leave to bring the within judicial review proceedings on the 2nd December 2010.
(ix) The High Court (Peart J.) granted leave to apply by way of an application for judicial review for a declaration that s. 29(1) of the Offences Against the State Act, 1939 (as inserted by s. 5 of the Criminal Law Act 1976) is repugnant to the Constitution.
(x) The prosecution was listed for trial on the 25th January 2011 at Waterford Circuit Court.
11. The learned President proceeded to determine the appeal, as has this Court. The core issue on this appeal is the constitutionality of s. 29(1) of the Act of 1939. If these proceedings were dismissed on the basis of the delay of the appellant, it is clear that new proceedings would be instituted by way of plenary summons, thus involving more delay and cost. In all the circumstances, the Court determined that the core issue be decided on these proceedings, and counsel were not heard on the issue of delay. It is most unfortunate that the proceedings were not brought correctly, by way of plenary proceedings, but to minimise delay and cost the Court decided to determine the issue on this appeal.
14. The unamended provision in s. 29(1) of the Offences Against the State Act, 1939 provided:-
17. The issuing of a search warrant is an administrative act, but it must be exercised judicially. It was accepted that the full panoply of rights do not apply to the issuing of search warrants. Obviously, the law does not require that suspects be put on notice of applications to apply for a search warrant. But, it was submitted on behalf of the appellant, there should be independent and impartial supervision of the issuing of a warrant.
18. In most cases that impartial supervision is exercised by a District Judge, when issuing a search warrant, or by a Peace Commissioner. Thus, third party scrutiny and supervision is built in.
19. It was accepted, on behalf of the appellant, that under a limited number of statutes, relating to serious investigations, members of An Garda Síochána have been granted statutory power to issue search warrants, but, it was submitted, these examples arise in urgent situations, or if immediate action is needed, and as a last resort. Also, such a warrant is required to be executed within a short time, usually 24 hours, while under s. 29(2) the warrant remains valid for a week.
20. The examples opened to the Court of statutes by which the Garda Síochána have power to issue search warrants were as follows:-
(ii) Section 14 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);
(iii) Section 8 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);
(iv) Section 5 Prevention of Corruption (Amendment) Act 2001 (allows a search warrant to be issued by a District Judge or, if immediate action is necessary, by a Superintendent or higher).
(v) Section 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.
22. There are echoes in the submissions before this Court and the submissions and decision in The People [Director of Public Prosecutions] v. Birney [2007 1 I.R. 337. In that case, at p. 370, it was stated that it had been contended on behalf of the first named applicant that the warrant was invalid because it was not issued by a superintendent independent of the investigation, that the issue of the warrant was in breach of the principle nemo iudex in causa sua. It was submitted that the issuance of the warrant by the superintendent offended against two principles, namely: (a) the guarantee of the inviolability of the dwelling under Article 40.5 of the Constitution, and, (b) the guarantee of fair trial enshrined in Article 38 of the Constitution, in that in issuing the warrant the superintendent was acting as a judge in his own cause, namely as head of the investigation.
23. In The People (D.P.P.) v. Birney the Court considered s. 29(1) of the Act of 1939, as amended, under which authority the search warrant had been issued.
The Court held:-
25. Reference was made to two previous cases where the issue had been raised that if s. 29 of the Act of 2003 did not require that such a warrant be issued by an independent authority, then the section was unconstitutional. In The People (D.P.P.) v. Birney the Court of Criminal Appeal concluded:-
28. In Ryan v. O’Callaghan (Unreported, High Court (Barr J.), 22nd July 1987), Barr J. considered the constitutionality of s. 42(1) of the Larceny Act, 1916, which empowered a Peace Commissioner to issue a search warrant in certain circumstances. He held:-
30. It was submitted on behalf of the appellant that s. 29(1) of the Act of 1939 is invalid under the Constitution because it fails to reflect, and provide for, the essential balance between the requirements of the common good and the protection of the appellant’s individual rights.
31. On behalf of the respondents it was submitted that s. 29(1) of the Act of 1939 is not repugnant to the Constitution, but rather is a legitimate part of the State’s armoury to protect itself from offences against the State and against the justice system. In so far as s. 29(1) may provide a person with less protection than a search warrant that is issued by an independent person such as a Judge or a Peace Commissioner, it was submitted that any such diminution in rights is proportionate and lawful.
Presumption of Constitutionality
33. The double construction rule also applies when construing s. 29(1) of the Act of 1939. Thus, if in respect of s. 29(1) two or more constructions are reasonably open, one of which is constitutional and the other or others are unconstitutional, it would be presumed that the Oireachtas intended only the constitutional construction
35. The legislation permitting the issuance of a search warrant should be constructed strictly. As Keane J. stated in Simple Imports v. The Revenue Commissioners  2 I.R. 243 at 250:-
36. There are two aspects of the issuance of a search warrant which are important. First, that a search warrant be issued by an independent person. Secondly, that such a person must be satisfied on receiving sworn information, that there are reasonable grounds for a search warrant.
37. In exceptional circumstances, such as urgent situations, provision has been made in statutes for a member of An Garda Síochána to issue a warrant, which usually has a short duration. The requirement of urgency is an important factor in determining the proportionality of legislation which may infringe a constitutionally protected right.
Wide area of search
41. There has been a long history of protection of the home under common law. In 1604, Sir Edward Coke in Semayne’s Case 77 ER 194, stated:
“Save in accordance with law”
a search warrant had been issued by a Peace Commissioner and the issue raised was whether the Peace Commissioner in exercising the power granted to him by s. 42 of the Larceny Act, 1916, authorising a search warrant of the dwelling house of a citizen was exercising a judicial power. Barr J. considered the phrase “save in accordance with law” in Article 40.5. He stated that the contemporary view of the Supreme Court was stated by Henchy J. in King v. Attorney General 1981 I.R. 233 at p. 257, when striking down as unconstitutional an offence created by s. 4 of the Vagrancy Act, 1824, for reasons, including:-
47. The procedure for obtaining a search warrant should adhere to fundamental principles encapsulating an independent decision maker, in a process which may be reviewed. The process should achieve the proportionate balance between the requirements of the common good and the protection of an individual’s rights. To these fundamental principles as to the process there may be exceptions, for example when there is an urgent matter.
48. Analysis and application of such fundamental principles may be illustrated from cases in other jurisdictions.
49. In Camenzind v. Switzerland  28 EHRR 458 at 476 paragraph 46 it was stated:-
With regard to the safeguards provided by Swiss law, the Court notes that under the Federal Administrative Criminal Law Act of 22 March 1974, as amended, a search may, subject to exceptions, only be effected under a written warrant issued by a limited number of designated senior public servants and carried out by officials specially trained for the purpose; they each have an obligation to stand down if circumstances exist which could affect their impartiality. Searches can only be carried out in ‘dwellings and other premises … if it is likely that a suspect is in hiding there or if objects or valuables liable to seizure or evidence of the commission of an offence are to be found there’; they cannot be conducted on Sundays, public holidays or at night ‘except in important cases or where there is imminent danger’. At the beginning of a search the investigating official must produce evidence of identity and inform the occupier of the premises of the purpose of the search. That person or, if he is absent, a relative or a member of the household must be asked to attend. In principle, there will also be a public officer present to ensure that ‘[the search] does not deviate from its purpose’. A record of the search is drawn up immediately in the presence of the persons who attended; if they so request, they must be provided with a copy of the search warrant and of the record. Furthermore, searches for documents are subject to special restrictions. In addition, suspects are entitled, whatever the circumstances, to representation; anyone affected by an ‘investigative measure’ who has ‘an interest worthy of protection in having the measure … quashed or varied’ may complain to the Indictment Division of the Federal Court. Lastly, a “suspect” who is found to have no case to answer may seek compensation for the losses he has sustained.
As regards the manner in which the search was conducted, the Court notes that it was at Camenzind’s request that it was carried out by a single official. It took place in the applicant’s presence after he had been allowed to consult the file on his case and telephone a lawyer. Admittedly, it lasted almost two hours and covered the entire house, but the investigating official did no more than check the telephones and television sets; he did not search in any furniture, examine any documents or seize anything.”
Second, reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search, constitutes the minimum standard consistent with s. 8 of the Charter for authorizing searches and seizures. Subsections 10(1) and 10(3) of the Act do not embody such a requirement. They do not, therefore, measure up to the standard the Charter. The Court will not attempt to save the Act by reading into it the appropriate standards for issuing a warrant. It should not fall to the courts to fill in the details necessary to render legislative lacunae constitutional. In the result, subss. 10(1) and 10(3) of the Combines Investigation Act are inconsistent with the Charter and of no force or effect because they fail to specify an appropriate standard for the issuance of warrants and designate an improper arbiter to issue them.”
51. The Court applies the following principles. For the process in obtaining a search warrant to be meaningful, it is necessary for the person authorising the search to be able to assess the conflicting interests of the State and the individual in an impartial manner. Thus, the person should be independent of the issue and act judicially. Also, there should be reasonable grounds established that an offence has been committed and that there may be evidence to be found at the place of the search.
(ii) Impair the right as little as possible;
(iii) Be such that their effects on rights are proportionate to the objective …”
Such a decision as to whether to grant the warrant would involve a balancing of the interests of An Garda Síochána and the investigation of the criminal offence and the constitutional or legal rights of the person whose premises is to be the subject of the warrant. There are very limited occasions upon which time would be so pressing as to make it impossible to follow such a procedure. In any event, a residual power for such eventuality could, perhaps, still be vested in a senior officer of the Garda Síochána to be used in exceptional circumstances.
The Tribunal, therefore, recommends that urgent consideration be given to vesting the power to issue warrants under section 29 in judges of the District or Circuit court. This, the Tribunal believes to be in keeping with best modern practice in this regard as exemplified in judgments of the European Court of Human Rights and judicial trends in Canada and New Zealand.”
54. This case is decided on its own circumstances. These circumstances include the fact that the warrant was issued by a member of a Garda Síochána investigating team which was investigating the matters. A member of An Garda Síochána who is part of an investigating team is not independent on matters related to the investigation. In the process of obtaining a search warrant, the person authorising the search is required to be able to assess the conflicting interests of the State and the individual person, such as the appellant. In this case the person authorising the warrant was not independent. In the circumstances of this case a person issuing the search warrant should be independent of the Garda Síochána, to provide effective independence.
55. The circumstances of the appellant’s case also includes the fact that the place for which the search warrant was issued, and which was searched, was the appellant’s dwelling house. The Constitution in Article 40.5 expressly provides that the dwelling is inviolable and shall not be forcibly entered, save in accordance with law, which means without stooping to methods which ignore the fundamental norms of the legal order postulated by the Constitution. Entry into a home is at the core of potential State interference with the inviolability of the dwelling.
56. These two circumstances are at the kernel of the Court’s decision.
57. No issue of urgency arose in this case, and the Court has not considered or addressed situations of urgency.
58. The Court points out that it is best practice to keep a record of the basis upon which a search warrant is granted.
59. This Court would grant a declaration that s. 29(1) of the Offences against the State Act, 1939 (as inserted by s. 5 of the Criminal Law Act, 1976) and referred to as s. 29(1) of the Act of 1939, is 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.