Section 29 Warrants

pajodublin

Having seen today that 3 more convictions were quashed because of section 29 warrants can someone answer a question.

Does this mean that the evidence that was found at the premises of the said section 29 warrants is now inadmissible?

Tom Young

This issue is covered off concisely by the Super Court.

Section found unconstitutional - viz Article 40.5 Inviolability of Dwelling.

On the 23rd February, 2012, Denham C.J. gave the judgment for the Supreme Court in the case of Ali Charaf Damache v. The D.P.P. (Ireland) and the Attorney General, here: http://www.courts.ie/judgments.nsf/6681dee4565ecf2c80256e7e0052005b/bdc2ceb03a9689ad802579ad0050dd8b?OpenDocument&Highlight=0,Damache

At para. 59 of the judgment it is recited that, for the reasons set out in the judgment:
“The 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.”

Also here, in Cunningham, from which the above text has been taken: http://www.courts.ie/judgments.nsf/f69fbd31c73dda2580256cd400020877/7a665cf5c592148b802579fb0046bc08?OpenDocument

I'd say there is a high chance this will be on FE1 Criminal and or Constitutional papers!

Issue is independence of the person issuing the warrant v constitutional rights!

pajodublin

so does it mean that all evidence gathered under that warrant is now inadmissible in future trials?

MagicSean

pajodublin wrote: »

so does it mean that all evidence gathered under that warrant is now inadmissible in future trials?

Yes. It's possibly the worst decision the SC has ever made with regard to the negative consequences that will follow.

pajodublin

MagicSean wrote: »

Yes. It's possibly the worst decision the SC has ever made with regard to the negative consequences that will follow.

With regard to the negative consequences you are correct
but in my opinion if it's unconstitutional then it's the right decision, no?

chopser

MagicSean wrote: »

Yes. It's possibly the worst decision the SC has ever made with regard to the negative consequences that will follow.

The worst decision? Seriously, are you kidding? You think constitutional rights don't matter? Who on earth could possibly think this way only a member of the Gardai. The negative consequences of pointing out a serious breach of Constitutional rights are irrelevant.

Do you honestly believe that Gardai should be allowed to issue their own search warrants? It is a joke that it was allowed go on so long.

MagicSean

chopser wrote: »

The worst decision? Seriously, are you kidding? You think constitutional rights don't matter? Who on earth could possibly think this way only a member of the Gardai. The negative consequences of pointing out a serious breach of Constitutional rights are irrelevant.

Do you honestly believe that Gardai should be allowed to issue their own search warrants? It is a joke that it was allowed go on so long.

I believe the judge could have ruled the warrant unconstitutional instead of the whole section. Warrants obtained from an superintendent not connected to the case would still be valid so there was no need to strike the whole section out. People could have appealed on a case by case basis. As it stands we will have the most violent of criminals released from prison even if their warrant was obtained constitutionally.

Predalien

MagicSean wrote: »

I believe the judge could have ruled the warrant unconstitutional instead of the whole section. Warrants obtained from an superintendent not connected to the case would still be valid so there was no need to strike the whole section out. People could have appealed on a case by case basis. As it stands we will have the most violent of criminals released from prison even if their warrant was obtained constitutionally.

The section permitted a search which was deemed unconstitutional, there was no other option but for the entire section to be found repugnant as it allowed for the possibility of searches that may be unconstitutional. The legislation was poorly drafted.

Right 2B a liar

pajodublin wrote: »

so does it mean that all evidence gathered under that warrant is now inadmissible in future trials?

From my understanding the evidence is only inadmissible if it wouldn't have been discovered in the course of the investigation without the unconstitutional warrant.

MagicSean

Predalien wrote: »

The section permitted a search which was deemed unconstitutional, there was no other option but for the entire section to be found repugnant as it allowed for the possibility of searches that may be unconstitutional. The legislation was poorly drafted.

There have been other instances were warrants were deemed to have been invalid but their legislation was kept. I think the most recent was a drugs warrant that was issued by a peace officer instead of a judge. Although the legislation allowed for a search warrant that was not constitutional it was only a procedural thing because the peace officer should only be sought if a judge wasn't available. Same could have been said for the OASA warrants. It allowed for both constitutional and unconstitutional warrants to be issued depending on what procedure was followed. There was no need to throw out both the good and bad warrants when they could have been decided on individually if appealed.

I wonder did you show the same concern for the constitution when the statutory rape legislation was struck out and reintroduced retrospectively.

Predalien

MagicSean wrote: »

There have been other instances were warrants were deemed to have been invalid but their legislation was kept. I think the most recent was a drugs warrant that was issued by a peace officer instead of a judge. Although the legislation allowed for a search warrant that was not constitutional it was only a procedural thing because the peace officer should only be sought if a judge wasn't available. Same could have been said for the OASA warrants. It allowed for both constitutional and unconstitutional warrants to be issued depending on what procedure was followed. There was no need to throw out both the good and bad warrants when they could have been decided on individually if appealed.

I wonder did you show the same concern for the constitution when the statutory rape legislation was struck out and reintroduced retrospectively.

Except it wasn't a procedural error, they didn't breach the legislation, the legislation allowed for search warrants issued by Superintendants involved in the case, clearly they can't be seen to be independent, therefore the legislation allows for unconstitutional searches and cannot stand. It's very unfortunate, but that is how the law must operate.

MagicSean

Predalien wrote: »

MagicSean wrote: »

There have been other instances were warrants were deemed to have been invalid but their legislation was kept. I think the most recent was a drugs warrant that was issued by a peace officer instead of a judge. Although the legislation allowed for a search warrant that was not constitutional it was only a procedural thing because the peace officer should only be sought if a judge wasn't available. Same could have been said for the OASA warrants. It allowed for both constitutional and unconstitutional warrants to be issued depending on what procedure was followed. There was no need to throw out both the good and bad warrants when they could have been decided on individually if appealed.

I wonder did you show the same concern for the constitution when the statutory rape legislation was struck out and reintroduced retrospectively.

Except it wasn't a procedural error, they didn't breach the legislation, the legislation allowed for search warrants issued by Superintendants involved in the case, clearly they can't be seen to be independent, therefore the legislation allows for unconstitutional searches and cannot stand. It's very unfortunate, but that is how the law must operate.

You just missed my whole point. Drugs warrants can be obtained from a judge or peace commissioner. If a warrant is obtained from a PC when a judge is available then it is invalid. So it allows for warrants to be obtained that are unconstitutional. But when challenged only the individual warrant was invalidated and not the whole legislation. This could have been done for the OASA warrants. Strike out only the ones that were issued unconstitutionally instead of the whole section so that you don't end up invalidating the constitutionally sound warrants as well.

Predalien

MagicSean wrote: »

You just missed my whole point. Drugs warrants can be obtained from a judge or peace commissioner. If a warrant is obtained from a PC when a judge is available then it is invalid. So it allows for warrants to be obtained that are unconstitutional. But when challenged only the individual warrant was invalidated and not the whole legislation. This could have been done for the OASA warrants. Strike out only the ones that were issued unconstitutionally instead of the whole section so that you don't end up invalidating the constitutionally sound warrants as well.

You seem to have missed the entire point, the legislation in your example specifies that the warrant will be invalid if obtained that way. In the case we have here the legislation allows for unconstitional warrants to be obtained by following the wording of the legislation. All that needed to be done was to specify that the warrant must come from a super not involved in the case, the legislation must be changed as presently it is fatally flawed. In the other situation, it is by not following the specifics of the legislation that renders the warrant invalid.

chopser

MagicSean wrote: »

You just missed my whole point. Drugs warrants can be obtained from a judge or peace commissioner. If a warrant is obtained from a PC when a judge is available then it is invalid. So it allows for warrants to be obtained that are unconstitutional. But when challenged only the individual warrant was invalidated and not the whole legislation. This could have been done for the OASA warrants. Strike out only the ones that were issued unconstitutionally instead of the whole section so that you don't end up invalidating the constitutionally sound warrants as well.

which constitutionally sound warrants are you talking about?

Do you understand what the ruling was and what was going on in relation to the issuing of warrants by Gardai involved in the cases.

MagicSean

chopser wrote: »

MagicSean wrote: »

You just missed my whole point. Drugs warrants can be obtained from a judge or peace commissioner. If a warrant is obtained from a PC when a judge is available then it is invalid. So it allows for warrants to be obtained that are unconstitutional. But when challenged only the individual warrant was invalidated and not the whole legislation. This could have been done for the OASA warrants. Strike out only the ones that were issued unconstitutionally instead of the whole section so that you don't end up invalidating the constitutionally sound warrants as well.

which constitutionally sound warrants are you talking about?

Do you understand what the ruling was and what was going on in relation to the issuing of warrants by Gardai involved in the cases.

A section 29 warrant obtained by an independent super will still be deemed invalid following this ruling even though it would have been constitutionally valid.

MagicSean

Predalien wrote: »

MagicSean wrote: »

You just missed my whole point. Drugs warrants can be obtained from a judge or peace commissioner. If a warrant is obtained from a PC when a judge is available then it is invalid. So it allows for warrants to be obtained that are unconstitutional. But when challenged only the individual warrant was invalidated and not the whole legislation. This could have been done for the OASA warrants. Strike out only the ones that were issued unconstitutionally instead of the whole section so that you don't end up invalidating the constitutionally sound warrants as well.

You seem to have missed the entire point, the legislation in your example specifies that the warrant will be invalid if obtained that way. In the case we have here the legislation allows for unconstitional warrants to be obtained by following the wording of the legislation. All that needed to be done was to specify that the warrant must come from a super not involved in the case, the legislation must be changed as presently it is fatally flawed. In the other situation, it is by not following the specifics of the legislation that renders the warrant invalid.

Really? I don't see any provision in the drugs act specifying that procedure. Could you point it out?

theAwakening

a predictable but understandably disheartening SC decision for the gardai. ironically the purpose of the decision, that being to protect the rights of irish citizens, must involve the most dangerous of criminals being exonerated and returned to our streets to resume plying their trade. this being at a time where garda resources are stretched. it frees up a few prison cells so i'm sure Shatter will be delighted.

this in effect will jeopardise the legislative power provided to garda superintendents to issue emergency search warrants under the misuse of drugs act with 24 hour validity. although it's very rarely invoked.

will AGS now be required to undergo judicial scrutiny of the formulation of 'reasonable cause' prior to effecting an arrest under s.4 criminal law act 1997 to ensure a constitutional right to liberty will not be infringed !!

ldxo15wus6fpgm

I wonder how long it will take the lads in the Oireachtas to bring in new legislation.

I have a procedural question - could a future sitting of the SC overturn the decision made here regarding this legislation i.e. declare the legislation valid again?

Grolschevik

theAwakening wrote: »

must involve the most dangerous of criminals being exonerated and returned to our streets to resume plying their trade.

More likely, re-tried.

Levi Gorgeous Pound wrote: »

I wonder how long it will take the lads in the Oireachtas to bring in new legislation.

The Criminal Justice (Search Powers) Bill 2012 is on the way. It still allows a warrant to be issued by a member of the Gardaí, but only in circumstances of urgency – not in an investigation in which that member is involved or in charge of – and the warrant should be valid only for a period of 24 hours when issued in those circumstances.

On the more general issue of the effects of a section being declared unconstitutional, Justice Hardiman is on record (in A v Governor of Arbour Hill Prison) as saying that a declaration of unconstitutionality “does not necessarily mean that all actions, decisions and transactions taken in good faith on foot of that [now declared] unconstitutional law must be unravelled, even if that invalidity operates ab initio. Any other conclusion would simply represent the triumph of abstract logic over the dictates of justice and the practical administration of society.”

Dandelion6

MagicSean wrote: »

A section 29 warrant obtained by an independent super will still be deemed invalid following this ruling even though it would have been constitutionally valid.

Is there really any such thing as an "independent super" in this context? It's still the police allowing a search to be conducted in the course of a police investigation.

Our man in Havana

I am sure the government is rushing to replace this with something else.