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Prisoners may walk free in legal blunder

The Garda Siochana and Department of Justice are blaming each other for a potentially massive legal cock-up which could lead to the release of prisoners already convicted or awaiting trial for the most serious crimes.

Charges in four cases involving people facing conspiracy to murder and possession of firearms charges have already been thrown out of court and others awaiting trial or appealing major sentences are "lining up" to be freed, sources say.

Someone in either the Garda Siochana or Department of Justice apparently ignored, or forgot, one of the key warnings in Mr Justice Frederick Morris's 2008 report into gardai in Donegal -- that arrest warrants commonly used in serious criminal and terrorist cases by gardai were unconstitutional.

Potentially, hundreds of cases could be involved as there are about 300 appeals to the Court of Criminal Appeal each year and those who were arrested under the "unconstitutional" arrest warrant -- Section 29 of the Offences Against the State Act -- are likely to be freed.

The first case to be tested since the Morris recommendation was heard before the Supreme Court in February and it agreed with the judge that Section 29 warrants were "repugnant" to the Constitution's rulings on the inviolability of the family home.

In February, the Supreme Court threw out the State's case against Ali Charaf Damache, from Waterford, who was charged in 2010 with conspiracy to murder the Swedish newspaper cartoonist, Lars Vilks. Mr Damache's lawyers won their judicial review and the Supreme Court struck out the charge against him.

Since then, three other State cases have fallen apart and another appeal is awaiting judgement.

The Section 29 arrest warrant was part of the State's anti-terrorist legislation dating from 1937 and allowed a garda of superintendent rank, or above, to sign a warrant allowing gardai to enter a suspect's house and make an arrest in a case where it was believed firearms or explosives were involved.

Since the mid-Seventies the Section 29 warrant has been used widely in suspected terrorist and organised crime cases.

Mr Justice Morris made his recommendation after considering the circumstances surrounding the arrest of Frank McBrearty during the investigation into the death of cattle dealer Richard Barron in Raphoe, Donegal, in October 1996.

The judge found that the signing of such warrants had become a "mere formality" for gardai. He also found that having considered the matters surrounding Mr McBrearty's arrest and other arrests also made under the same type of warrant, "that Section 29 warrants are not only open to abuse but have been abused in the past".

He recommended "that urgent consideration be given to vesting the power to issue warrants under Section 29 in judges of the District or Circuit court".

It is not clear what became of the Morris recommendations but senior detectives were not directed to reduce or end their use of Section 29 warrants. Gardai continued using the warrant, according to sources, in a high proportion of serious criminal cases and in almost all suspected dissident Republican arrests.

The Garda Press Office said that the "issue of changes to any legislation" would be a "matter for the Department of Justice".

However, the Department of Justice replied to queries about responsibility for implementing the recommendations, saying: "The gardai were of course aware of all recommendations made by Judge Morris in his reports."

Department of Justice officials have been directed by the Minister for Justice Alan Shatter to draw up legislation in response to the Supreme Court judgement in the Damache case.

It does away with the current use of the Section 29 warrants except in the most urgent cases where a senior officer "independent" of the investigation can give permission for a search. Otherwise, gardai must revert to the old system of calling a judge -- just as Mr Justice Morris recommended four years ago.

Sunday Independent