Thursday 27 October 2016

Change law on search warrants - watchdog

Published 09/12/2015 | 02:30

Ali Charaf Damache
Ali Charaf Damache

Gardaí should not be allowed to issue search warrants in any circumstances, the Government's law reform watchdog has recommended.

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The Law Reform Commission (LRC) has also urged the immediate implementation of fines legislation, allowing defaulters to pay by instalments, to prevent huge numbers of prison committal warrants.

The commission says the need for committal warrants could also be greatly reduced for non-payment of road traffic offences - primarily non-payment of fixed-charge penalty notices - if drivers were allowed to pay a fixed-charge notice after a summons has been issued.

Last year, 9,000 committal warrants led to imprisonment for non-payment of fines, with a further 88,000 bench warrants unexecuted.

The Commission's final report on search warrants and bench warrants follows the collapse of many trials following a ruling involving an Algerian national wanted by the US authorities.

Ali Charaf Damache is accused of devising and co-ordinating a violent jihadi organisation and successfully fought a High Court bid to extradite him to the US.

The failed extradition is now under appeal.

Three years ago the Supreme Court ruled in an action involving Mr Damache that section 29(1) of the Offences Against the State Act 1939 was unconstitutional as it authorised a non-urgent search of a dwelling pursuant to a "self-service" search warrant, issued by a garda officer involved in the investigation.

The law was struck down as many warrants were issued by gardaí who were not independent of the investigations.

In its report, the commission says that search warrants should only be issued by a court and that only High Court judges should be able to issue emergency search warrants, by phone, video link or Skype if the situation is urgent.

Ray Byrne, director of research at the LRC, said a judge-only system for the issuing of search warrants would bring Ireland into line with international best practice.

"There certainly needs to be a person, independent of the investigation, issuing the search warrant," said Mr Byrne.

Recommending a new Search Warrants Act, the commission said that search warrants should, in general, be executed by gardaí at reasonable hours and that so-called "dawn raids" should only be conducted by gardaí if a court is satisfied that this is required.

The Supreme Court has queried the necessity of many dawn raids which result in lengthy waiting times for solicitors to attend their clients in custody.

The commission has recommended that emergency search warrants issued by the High Court should last for 24 hours only, with "exceptional" 30-day time limits to be retained for the investigation of complex corporate offences.

Irish Independent

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