High Court dismisses challenge to Garda search warrant power under Offences Against the State Act 1939 as proportionate to counter-terrorism needs.

Neutral Citation Number: [2011] IEHC 197

THE HIGH COURT

JUDICIAL REVIEW

2010 1501 JR

BETWEEN

ALI CHARAF DAMACHE

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS AND IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

JUDGMENT of Kearns P. delivered the 13th day of May, 2011.

By order of the High Court (Peart J.) dated 2nd December, 2010, the applicant was 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. A stay on the applicant’s then imminent trial was obtained as part of the relief granted by

the court.

Section 29 (1) of the Offences Against the State Act 1939 as substituted by s. 5 of the Criminal Law Act 1976 provides:-

“Where a member of the Garda Síochána not below the rank of superintendent is satisfied that there are reasonable

grounds for believing that evidence 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 a sergeant a search warrant under this section in relation to such place.”

TIME

Given that the principal point at issue in this case concerns the validity of a statutory provision which permits a senior Garda officer

(in this case Detective Superintendent Dominic Hayes who was in overall charge of the case) to issue a search warrant, the time

when relevant information as to the person issuing the warrant became available to the applicant is of critical importance in

determining when this judicial review application should have been brought. There must be every probability in this case - for reasons

later set out in this judgment - that this information became known to the applicant on the date the warrant was executed, 8th

March, 2010, but for present purposes I am prepared to accept that the applicant may not have had the requisite information until

some time later, but he definitely had it by 24th May, 2010, the date upon which the applicant was served with a book of evidence

and following which he was returned for trial from the District Court to the Waterford Circuit Court. Order 84 r. 21 of the Rules of the

Superior Courts provides that an application for relief of the nature sought herein be brought within three months from the date when

grounds for the application first arose. The requirement to move promptly is an essential element in our judicial review jurisprudence.

Having been arrested for conspiracy to murder Swedish cartoonist Lars Vilks, the applicant was charged on 15th March, 2010, with an

offence contrary to s. 13 of the Post Office (Amendment) Act 1951 as amended, in respect of which it is alleged that on 9th January,

2010, he sent a menacing telephone call to a certain individual in the United States. He was served with a book of evidence at

Waterford District Court on 24th May, 2010. On 16th November, 2010, the applicant’s case was listed for trial at Waterford Circuit

Court for the 25th January, 2010. It involved the bringing of witnesses from the U.S.A. for which arrangements were put in hand.

The application for leave to bring judicial review proceedings was, however, only then brought on 2nd December, 2010 and, upon the

granting of leave, the applicant obtained the collateral benefit of an indefinite postponement of his pending trial pending the

determination of the judicial review proceedings and any appeal which might follow from the decision of this Court.

The applicant had other legal advisors prior to those presently engaged. In circumstances where no explanation has been given by

those former advisors for the delay in moving the leave application, the Court at the outset is compelled to conclude that the

application has not been launched with the necessary degree of promptitude which is appropriate to the remedy of judicial review. It

is also an application brought well outside the three month time period provided for by the Rules of the Superior Courts. A period in

excess of six months was allowed to elapse before any challenge to the propriety of the search warrant got off the ground. Quite

apart from the fact that this delay is fatal to the applicant’s claim for the declaratory relief sought, it also reinforces an unfortunate

impression that the judicial review process in this (as in a number of other criminal cases) is being deployed in such a fashion as to

delay the ordinary course of criminal trials in this jurisdiction. In recent years a number of judges, myself included, have commented

unfavourably about the bringing of very late applications of this nature and it is a practice which must stop if due respect for our

criminal process is to be maintained.

FACTS OF THE PRESENT CASE

During the month of September 2009, the Garda Síochána in Waterford were made aware that there were persons resident in Ireland

who were believed to be conspiring to murder Lars Vilks, a Swedish cartoonist whose drawings depicted the Islamic prophet

Mohammed with the body of a dog. The statement of Detective Superintendent Dominic Hayes in the book of evidence states that a

Ms. Colleen La Rose of Montgomery County, Pennsylvania, U.S.A. had travelled to Ireland via Holland in September, 2009 in

furtherance of the conspiracy to murder Mr. Vilks with a firearm. His statement records that Ms. La Rose had an association with the

applicant and his wife who reside in an apartment in Waterford City. As the officer in overall charge of the South Eastern Garda

Region, Detective Superintendent Hayes was formally in charge of the investigation and established an incident room at Waterford

Garda Station. He subsequently received via Garda Headquarters an intelligence report dated 1st February, 2010, from the F.B.I. and

a further intelligence report from the same agency on 19th February, 2010. He also became aware that a Mr. Majeb Moughni, an

attorney living in Detroit, had received a telephone call on 9th January, 2010 from a male who threatened to kill him. This

conversation had been taped by Mr. Moughni and a recording of this conversation along with a crime report from Dearborn Police

Department concerning the complaint made by Mr. Moughni in respect of the threat he received was passed on to him. In his

statement Detective Superintendent Hayes states that as a result of confidential information received, he suspected that the

applicant herein had threatened to kill Mr. Moughni on 9th January, 2010. Having obtained the applicant’s telephone records, he

ascertained that the telephone in the possession or ownership of the applicant had been in contact with the telephone number of Mr.

Moughni’s office in Dearborn, Detroit, Michigan, U.S.A. As a result of intelligence received and enquiries conducted he suspected that

Ms. Colleen La Rose had conspired with a number of persons, including the applicant, to murder Mr. Lars Vilks. On 5th and 8th of

March, 2010 he conducted a briefing with the investigation team at Waterford Garda Station. From his discussion with Detective

Inspector Michael Lacey, Senior Investigating Officer, he was made aware of the progress of the investigation and the intelligence

received regarding the conspiracy to murder Mr. Vilks with a firearm. He was satisfied he had reasonable grounds for believing that

evidence relating to unlawful possession of firearms within the State would be found at the home of the applicant and accordingly on

8th March, 2010, issued a search warrant pursuant to s. 29 of the Offences Against the State Act 1939 (as inserted by s. 5 of the

Criminal Law Act 1976) to Detective Sergeant David Walsh of Waterford Garda Station to effect a search of the applicant’s apartment

in Waterford City. The warrant was thereafter executed on 9th March, 2010, and Detective Superintendent Hayes attended the

apartment while the search was being conducted. He states that a Nokia mobile telephone, from which it is alleged that the call

complained of was made, was found in the applicant’s apartment.

Multiple grounds of challenge are elaborated in the leave application in this case. Many of these complaints seek to raise matters

which are appropriate to be determined at the applicant’s trial and nowhere else. They include complaints that (a) the grounds for

issuing the search warrant were questionable (b) complaints about the manner in which the search was conducted; and (c) queries

as to whether the search warrant was properly issued, reasonable grounds for its issue having been established. I do not propose to

lengthen this judgment by elaborating further the obvious fact that to seek to have such matters determined in advance of a pending

criminal trial would involve oral evidence and the running of part of the trial in advance in a court other than the trial court.

In any event counsel for the applicant has confined and limited his challenge in the following manner as set out in the Statement of

Grounds:-

“10. The power to issue search warrants must be exercised judicially and it therefore follows that the power must be

exercised in accordance with the principles of natural justice. In this regard, the issuing of the search warrant by

Detective Superintendent Hayes was contrary to the principle of nemo iudex in causa sua.

11. Having regard to the decision of the Court of Criminal Appeal in DPP v. Birney & Others [2007] 1 I.R. 337, the wording

of s. 29 (1) of the Offences Against the State Act 1939 (as inserted by s. 5 of the Criminal Law Act 1976) 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.

12. Accordingly, s. 29 (1) of the Offences Against the State Act 1939 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.

13. The decision of the Oireachtas to confer the power to issue search warrants under the impugned section upon a

member of An Garda Síochána, as opposed to a judge or other independent person, is arbitrary, unjustified, unreasonable,

unnecessary, lacking in proportionality and neglectful of the rights of the citizen. A judge has no power under the section

to issue such warrants.”

However, I am satisfied, notwithstanding objection from counsel for the respondents, that this particular point is capable of

adjudication in the manner in which it has been brought, subject to my earlier observation that for the point to be considered in the

context of a judicial review application, it required to be brought promptly and not left in abeyance until the virtual eve of the trial

itself.

Before considering the submissions in any detail, it is important also to bear in mind that the point being litigated is not one to be

considered in a legal vacuum divorced from concrete reality or the facts giving rise to the challenge. The garda investigation in this

case, in the course of which the impugned search was conducted, was an investigation into alleged international terrorism. The

Offences Against the State Act 1939 is designed to deal with particular types of offences that pose a particular risk to the State.

Acts of international terrorism which involve the use of Ireland as a springboard or base for the furtherance of such crimes is at the

very highest end of State security considerations.

SUBMISSIONS OF THE PARTIES

On behalf of the applicant it is submitted 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 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.

Michael O’Higgins, S.C. for the applicant, argued that the power to issue search warrants must be exercised judicially. It therefore

followed that the power must be exercised by a person who is independent of the particular garda investigation and who would be in

a position to weigh the conflicting interests of the State and the individual in a neutral and impartial manner. The failure of the

Oireachtas to confer the power to issue search warrants under the section upon a judge, peace commissioner or other independent

person was arbitrary, unjustified, lacking in proportionality and neglectful of the rights of the citizen.

Mr. O’Higgins submitted that while the issuing of search warrants is an executive function, it is nonetheless one that must be

exercised judicially, as had been emphasised by the decision of the Supreme Court in Creaven v. Criminal Assets Bureau [2004] 4 I.R.

434.

In the instant case, the applicant for the warrant and the person who issued it were one and the same person. There was no sworn

information or formal written application put before Detective Superintendent Hayes. The warrant was issued by him to a sergeant

who had not formally applied for it at the culmination of a pre-arrest investigative process that was initiated and supervised by

Detective Superintendent Hayes and in which he took an active and leading role. Detective Superintendent Hayes attended the

search himself and subsequently supervised the applicant’s detention. Subsequently, after the applicant’s arrest and charge,

Superintendent Hayes was the main witness for the State giving evidence against the applicant in his bail application. For these

various reasons it could not be maintained by the respondents that when the superintendent issued the warrant, he was not acting

as a judge in his own cause. Mr. O’Higgins submitted that the section under challenge failed to reflect and provide for the essential

balance between the requirements of the common good and the protection of the applicant’s individual rights.

This was not a case, he said, where the constitutionality of the section could be upheld by means of any necessity test, given that it

would have been practicable for the State to honour the guarantee of fair procedures by a different formal procedure in this case.

The respondents had not attempted to adduce evidence to demonstrate why a search warrant issued under s. 29 (1) must be issued

by a member of An Garda Síochána rather than a judge. While it might in certain circumstances be suggested that an investigation

into an offence under the Offences Against the State Act could require the immediate issuing of a search warrant in order to prevent

the destruction of vital evidence or to prevent a life threatening situation, no evidence of such circumstances had been placed before

the Court in the instant case.

In this regard, Mr. O’Higgins placed particular reliance upon the conclusions contained in s. 6 of “The Burnfoot Module” of the Morris

Tribunal where (at paras. 6.23 - 6.24) the Tribunal stated:-

“The Tribunal is satisfied that it is preferable that the power to issue a warrant should be vested in a judge. With modern

technology and rapid communications, there is no reason why a judge cannot be easily contacted by telephone, facsimile

or email or personally, for the purposes of making an application to him/her for a search warrant. A record can thereby be

created, whether by tape or by the recording of the message received by facsimile or email, or indeed by the prompt

furnishing of a grounding information to the judge within a limited period after the application of, say, 24 hours, verifying

the basis upon which the application was made, which record can then be filed for future reference. The judge can then

make an independent decision.

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 s.

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.”

Similarly, counsel placed reliance on the views expressed by Professor Thomas O’Malley in his “Criminal Process” (Roundhall Press,

2009) when he said that “in this day and age, as the Morris Tribunal has recently recommended, a warrant should always be issued by

a judge. Senior police officers, for example, cannot claim to have the level of institutional independence necessary for the proper

exercise of an impartial judgment”.

Mr. O’Higgins, however, acknowledged that the interpretation of s. 29 of the Offences Against the State Act 1939 had already been

conclusively dealt with in the Court of Criminal Appeal in its decision in DPP v. Birney & Ors. [2007] 1 I.R. 337. In Birney, Hardiman J.

held that the wording of s. 29 (1) could not 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. At pp. 372-373 Hardiman J. had stated:-

“In the course of the submissions before the Special Criminal Court it had been argued that if s. 29 of the 1939 Act did

not require that such a warrant be issued by an independent authority, then the section is unconstitutional. In support of

this contention the court was referred to a Canadian decision, Hunter v. Southam Inc. [1984] 2 SCR. 145. The court ruled

correctly that it had no jurisdiction to adjudicate on the constitutionality of s. 29 and this court is in no different position.

This court is likewise satisfied that the wording of s. 29 (1) of the Offences Against the State Act is clear and

unambiguous. That the applicants contention to be correct, it would be necessary to read into the words of the Statute

a proviso that the superintendent concerned should not be one involved in the particular investigation. This court can see

no basis for so doing.”

That judgment, Mr. O’Higgins argued, buttressed the applicant’s contention that the only effective remedy available to an applicant in

these circumstances was a declaration of invalidity of the section by reference to constitutional principles. Following the decision in

Birney, any trial judge, bound as he would necessarily be by the decision of the Court of Criminal Appeal, would be obliged to rule that

the section does not require the issuing superintendent to be independent and does not require that the various safeguards of

independence, neutrality and detachment, be read into the section.

Mr. Paul Anthony McDermott, counsel for the respondents, submitted that, as an item of post 1937 legislation, s. 29 is entitled to the

presumption of constitutionality. He argued that the section was limited in scope and, as it was located within the Offences Against

the State Act 1939, it related only to a particular category of offences which pose a particular threat to the State and to the justice

system. The section was very carefully drafted and contained particular checks and balances in respect of both the rank of the

officer who could issue the warrant and the rank of the officer who could receive it. Mr. McDermott submitted that the drafters of s.

29, when considering how it fitted into the Act as a whole, took the view that it was appropriate that the warrant be issued by An

Garda Síochána. He submitted that it was not difficult to understand why this should have been the case, given that the drafters of

the Act may have been of the view that it could well be invidious to go to the local district judge or peace commissioner in

circumstances where it would later be known by the suspects who issued the warrant. In times of unrest the independent persona

designata might be subject to particular pressures. In addition, if the application was based on the word of an informant or other

sensitive material, then the fact that this information would have to be disclosed outside of the police force could carry increased

risks. There was also the question of emergency situations arising where there might not be time to find a district judge.

It was well established in Irish law that the issuing of search warrants is an administrative, as opposed to a judicial function. In Ryan

v. O’Callaghan (Unreported, High Court, 22nd July 1987) Barr J. concluded that an application for a search warrant was an executive

function rather than one of a judicial nature. His decision had been expressly followed and approved by the High Court in Berkeley v.

Edwards [1988] I.R. 217, Farrell v. Farrelly [1988] I.R. 201 and Byrne v. Gray [1988] I.R. 31.

That said, the respondents nonetheless accepted the correctness of the views expressed by Keane J. in Simple Imports v. Revenue

Commissioners [2000] 2 I.R. 243 when he stated that a test of strict scrutiny applies to search warrants, stating:-

“These are powers which the police and other authorities must enjoy in defined circumstances for the protection of

society, but since they authorise the forcible invasion of a person’s property the courts must always be concerned to

ensure that the conditions imposed by the legislature before such powers can be validly exercised are strictly met.”

Given that the issuing of a search warrant is an executive function, Mr. McDermott argued that it necessarily followed that it was not

a power confined to judges or to peace commissioners, but is one that can be exercised by a member of An Garda Síochána.

Section 29 was not the only provision whereby An Garda Síochána are granted the power to issue search warrants. Similar provisions

are to be found in the following pieces of legislation:-

(i) Section 16 of the Official Secrets Act 1939 allows a search warrant to be issued by a District Judge or, if immediate

action is necessary, by a Chief Superintendent or higher;

(ii) Section 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;

(iii) Section 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;

(iv) Section 5 of the 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.

What the courts have said is that where there is a statutory provision that permits a warrant to be issued by a judge or by a member

of the gardaí in an emergency, then the gardaí are obliged to seek the warrant in the first instance from a judge and only to issue the

warrant themselves in a case of necessity. No such statutory provision for alternatives arose in the context of this particular

legislation.

Mr. McDermott argued that s. 29 had been in long use and had never been struck down by the courts. In DPP v. Glass (CCA, 23rd

November, 1992) the Court of Criminal Appeal rejected a submission that a s. 29 warrant issued by a superintendent should specify

the particular offence he has in mind. In DPP v. Sweeney [1996] 2 I.R. 313 Morris J. in the High Court upheld as valid a warrant that

had been issued by a chief superintendent who was involved in an investigation.

In the instant case Detective Superintendent Hayes was predominantly acting in a supervisory capacity over the investigating

members in a case which raised grave concerns related to international terrorism. That being so, Mr. McDermott submitted that the

statutory provision passed the proportionality test as enunciated in Heaney v. Ireland [1994] 3 I.R. 593.

DECISION

This is not a case where alternative options were open to An Garda Síochána in determining whether or not the search warrant in this

case should be issued by a senior police officer or by a district judge or peace commissioner. The statute, as counsel for the applicant

has pointed out, does not envisage a judge having a role where a search warrant is sought under this particular section. This was

made clear by the Court of Criminal Appeal in the case of DPP v. Birney & Anor. [2007] 1 I.R. 337. I thus accept the applicant’s

submission that it would not be open to the trial judge to entertain any challenge at trial to the propriety of the warrant being issued

by the person who did in fact issue it in this case.

That being so, it seems to me that in this case the test of constitutionality necessarily turns on the proportionality of the legislative

measure when seen in its particular context. The relevant test was enunciated by Costello J. in Heaney, that is to say it must satisfy

the following requirements:-

“The objective of the impugned provision must be of sufficient importance to warrant over-riding a constitutionally

protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen

must pass a proportionality test. They must:

be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;

impair the right as little as possible;

be such that their effects on rights are proportional to the objective.”

While no formal evidence was adduced in this case which would suggest that evidence was about to be destroyed by the applicant or

his wife, the security demands of countering international terrorism are of a quite different order to those which apply in what might

be described as routine criminal offences. Serious injury and harm can be unleashed at any point in the globe by terrorists who can

avail of modern technology to devastating effect. That fact was amply borne out by the attack on the World Trade Centre on 11th

September, 2001, and many other terrorist acts before and since. The international terrorism of the modern age is a sophisticated,

computerised and fast moving process where crucial evidence may be lost in minutes or seconds in the absence of speedy and

effective action by police authorities.

I have no difficulty, therefore, in determining that, on the facts of the present case, the statutory provision under attack is one

which meets the test of proportionality, not only for the historic reasons outlined by counsel for the respondents in his submissions,

but for the much more cogent reality that the technical facilities available in the modern age greatly facilitate the speedy execution

of such threats and require that police authorities be able to respond and act without delay.

In a different piece of legislation, perhaps one catering for ordinary crime, a provision such as that contained in s. 29 (1) of the

Offences Against the State Act 1939 might well warrant the criticism so eloquently expressed by the Morris Tribunal and by Professor

Thomas O’Malley to which reference was made by counsel for the applicant.

While I do find somewhat unconvincing the arguments of the respondents that in some manner Detective Superintendent Hayes stood

above and apart from this investigation by reason of his seniority, I do nonetheless think his seniority and the seniority of the officer

to whom the warrant issued does provide reasonable reassurance that the power to issue the warrant was circumscribed with

appropriate safeguards. I am also far from convinced that the maxim nemo iudex in sua causa is truly engaged in circumstances

where a decision is made to issue a search warrant. It is not a conclusive determination of the guilt or innocence of the applicant, but

rather a step in an investigative process which all concerned realise must be carried out with due regard to the applicant’s other

constitutional rights, including his right to privacy and the inviolability of his dwelling as guaranteed by Article 40.5 of the

Constitution.

The adequacy of the evidence upon which the decision to execute the warrant was issued, the manner of its execution or any other

complaints about the garda role in the execution of the warrant are all matters which in my view may be fully and adequately

canvassed at the trial herein.

I would therefore dismiss the applicant’s claim herein.