Terrorist cases in jeopardy
Published 25/02/2012 | 05:00
A Supreme Court ruling on a key piece of anti-terrorist legislation has cast a doubt over the prosecution of two dozen suspected dissident republican activists.
Five Supreme Court judges, including Chief Justice Susan Denham, decided that a section of the Offences Against the State Act was "repugnant" to the Constitution.
The section has been routinely used in the past by gardai to search the homes of suspects in terrorist cases.
Now the ruling means that many cases pending before the non-jury Special Criminal Court could be in legal jeopardy.
One legal source said: "It is now open to defence lawyers to apply to the court to have the case thrown out on the basis that evidence was found during searches that were not carried out according to the law."
Many of the cases before the court involve people charged as a result of garda investigations into the activities of dissident republican groups.
A garda officer said: "This is a nightmare scenario. Gardai routinely issue search warrants under this piece of legislation and now everything is up in the air."
The challenge to the legislation was brought by a suspect in an alleged conspiracy to murder Swedish cartoonist, Lars Vilks, whose depiction of the prophet Mohammed provoked outrage in several Muslim countries.
Ali Charaf Damache (45), an Algerian with an address at John Colwyn House, High Street, Waterford, was arrested after his house was searched because it was suspected he was involved in an alleged conspiracy to kill Mr Vilks along with several others.
As a result of the search, he was later charged with making a menacing phone call in which he allegedly threatened to put a bullet through the head of an American lawyer in January 2010.
The lawyer had featured in publicity about a protest outside a Detroit court where a man was charged with attempting to bomb a plane on Christmas Day, 2009.
The lawyer wanted to show that most Muslims did not support such attacks.
Mr Damache brought a High Court challenge claiming it was unconstitutional for a senior garda involved in the investigation to issue a warrant to search his house.
He claimed the warrant should have been issued by an independent authority such as a judge or peace commissioner.
Last May the High Court dismissed his challenge but he appealed this decision to the Supreme Court.
It is now up to the DPP to decide whether the case can proceed, according to legal sources.
"The person authorising a search warrant is required to be able to assess the conflicting interests of the State and the person whose home is to be searched, such as Mr Damache," Ms Justice Denham said.