Damache Implications for Citizenship

Recently the Irish Supreme court made a ruling in the Damache case. Mr Damache was sentenced in an American court for terrorism related offences in 2018. In the same year the Minister for Justice informed Mr Damache that his Irish Citizenship would be revoked on grounds of disloyalty to the Irish State. Mr Damache appealed this decision and the case found its way to the Supreme court. In October 2020 Dunne J. handed down a ruling stating that S19 of the Irish Nationality and Citizenship Act 1956 did not meet the required grounds of natural justice due to the ramifications of having citizenship revoked. Natural justice is a judicial term used at times to invoke rights perhaps not explicitly enshrined in law or the constitution, but may be antecedent to both. Dunne J. noted that the decision maker in revoking citizenship must be impartial, a standard not presently met. The full implications of this ruling remain to be seen, however it is potentially a significant departure from the current status quo. If you feel that this issue may effect you, or if you have any concerns about citizenship or your immigration matters, then please contact our office for a consultation.

Damache Case Update

In relation to the recent blog regarding the Damache v DPP [2012] decision and search warrants, as expected the effect on already decided cases will likely be minimal.

In DPP v Thomas Hughes [2012] (7 July 2012) a convicted person challenged his conviction on the basis that evidence used to convict him had been obtained under legislation which had subsequently been found unconstitutional in the Damache case.

The Court of Criminal Appeal rejected the applicant's appeal on the basis (amongst other reasons) that he had pleaded guilty during his trial. The State did not have to rely on the evidence which it had obtained by the means which were subsequently found unconstitutional.

This is in line with previous decisions such as the high profile decision of C.C. v Ireland [2006] where a convicted person sought to have the decision overturned following a subsequent finding that the legislation outlining the offence was inconsistent with the Constitution. The court found that as the accused had not sought to challenge the provision in his previous trial he was not entitled to rely on it at a later stage

Unconstitutional Search Warrant Leads to Quashed Conviction

A recent decision of the Supreme Court regarding certain search warrants has forced the government to introduce new legislation.

At issue was the constitutional protection afforded to the citizen's home under Article 40.5 of the Constitution. Article 40.5 states that: "The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with the law.". The Supreme Court found that the legislation which allowed a Garda Superintendent to issue a search warrant under s.29 of the Offences Against the State Act 1939 was unconstitutional.

The Court stated that a high standard of independence was required of the person issuing a warrant to search a person's home. In the case of a member of An Garda Síochána issuing a warrant, this independence may not be guaranteed in some circumstances, for example where a person who issues the search warrant is conducting the same criminal investigation.

In this particular case, the Superintendent in charge of the investigation issued a warrant to search the home of a suspect. The Court held that at the Garda investigating the matter was not sufficiently independent to issue such a warrant. The proper person to issue the warrant was a person independent of the investigation authority, a district Court Judge for example.

The decision may have important implications for several cases currently before the courts where the same type of search warrant was issued and evidence was gathered during that search. Where criminal cases are fully concluded, it is likely that this decision will only be relevant where the convicted person challenged the search warrant during the original proceedings.