NEW LEGISLATION which would limit the circumstances in which a Garda superintendent could issue a search warrant will be enacted before the summer recess, Minister for Justice Alan Shatter has said.
New legislation has been prioritised following the Supreme Court decision in February which found section 29 (1) of the Offences Against the State Act was repugnant to the Constitution.
It allowed a senior garda to issue a warrant to search a home. The section was challenged on the basis a garda involved in the case was not independent of it and therefore should not have granted a warrant relating to it. Reacting to yesterday’s judgment allowing three men convicted of the kidnapping of a Securicor van driver to go free, Mr Shatter said the new Bill will replace section 29 of the Offences Against the State Act, 1939, with a search warrant provision which takes account of the Supreme Court judgment.
It will provide that an application for a warrant may be made to a District Court judge, and limit circumstances in which a superintendent (or officer of higher rank) may authorise a warrant. These will arise only when it is urgent an immediate warrant is issued, and where it would be impracticable to apply to a District Court judge.
Mr Shatter said such superintendent-issued warrants will be of short duration and may only be authorised by a superintendent independent of the investigation.
The new Bill will be confined to future Garda inquiries, so there is no retrospective legislative action open to deal with existing cases where the use of section 29 may be at issue. “It is not possible for legislation to make something constitutional which the Supreme Court has declared to be unconstitutional,” the Minister said.
NUI Galway law lecturer Tom O’Malley said the “key factor” with convictions now overturned is that they were already subject to an appeal when the Supreme Court made its decision in February. He told RTÉ’s News at One that those who did not have an appeal pending at the time, or who have appealed since, will not be able to challenge their convictions despite the fact search warrants may have been issued under a statute now declared unconstitutional.
