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.

About the author: Pádraig Murray