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.