Damache v DPP and Others

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 13 May 2011
• Neutral Citation: [2011] IEHC 197
• Court: High Court
• Date: 13 May 2011

[2011] IEHC 197

THE HIGH COURT

[No. 1501 J.R./2010]

Damache v DPP & Ors

JUDICIAL REVIEW

BETWEEN

ALI CHARAF DAMACHE

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS AND IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

OFFENCES AGAINST THE STATE ACT 1939 S29(1)

CRIMINAL LAW ACT 1976 S5

RSC O.84 r21

POST OFFICE (AMDT) ACT 1951 S13

OFFENCES AGAINST THE STATE ACT 1939 S29

BIRNEY & ORS v DPP 2007 1 IR 337 2006/6/1072 2006 IECCA 58

CREAVEN & ORS v CRIMINAL ASSETS BUREAU & ORS 2004 4 IR 434

O'MALLEY THE CRIMINAL PROCESS 2009

RYAN v O'CALLAGHAN UNREP BARR 22.7.1987 1987/8/2214

BERKELEY v EDWARDS & ORS 1988 IR 217 1988/4/907

FARRELL v FARRELLY & DISTRICT JUSTICE O'DONNELL 1988 IR 201 1988/4/1086

BYRNE v GREY & ORS 1988 IR 31 1988/4/949

SIMPLE IMPORTS LTD & SEVEN IMPORTS LTD v REVENUE CMRS & ORS 2000 2 IR 243 1999/23/7430

OFFICIAL SECRETS ACT 1963 S16

CRIMINAL ASSETS BUREAU ACT 1996 S14

CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S8

PREVENTION OF CORRUPTION (AMDT) ACT 2001 S5

DPP v GLASS UNREP CCA 23.11.1992 1993/2/267

DPP v SWEENEY 1996 2 IR 313 1996/10/3110

HEANEY & MCGUINNESS v IRELAND & AG 1994 3 IR 593 1994 2 ILRM 420 1994/10/3029B

CONSTITUTION ART 40.5

CONSTITUTIONAL LAW

Statute

Validity - Criminal law - Search warrant - Judicial review - Whether statutory provision allowing Garda involved in criminal investigation to decide whether search warrant should issue unconstitutional - Whether power to issue search warrant should be exercised judicially - Whether issuance of search warrant administrative rather than judicial function - Proportionality - Whether statutory provision contained appropriate safeguards - Presumption of constitutionality - Delay in application for leave to seek judicial review - Offences Against the State Act 1939 (No 13 ), s 29(1) - Creaven v Criminal Assets Bureau [2004] IEHC 26 & [2004] IESC 92, [2004] 4 IR 434, People (DPP) v Birney [2006] IECCA 58, [2007] 1 IR 337, Ryan v O'Callaghan (Unrep, Barr J, 22/5/1987), Berkeley v Edwards [1988] IR 217, Farrell v Farrelly {1988] IR 201, Byrne v Grey [1988] IR 31, Simple Imports v Revenue Commissioners [2000] 2 IR 243, People (DPP) v Glass (Unrep, CCA, 23/11/1992), DPP v Sweeney [1996] 2 IR 313 and Heaney v Ireland [1994] 3 IR 593 considered -Claim dismissed (2010/1501JR - Kearns P - 13/5/2011) [2011] IEHC 197

Damache v Director of Public Prosecutions

1 JUDGMENT of Kearns P. delivered the 13th day of May, 2011.

2 By order of the High Court (Peart J.) dated 2 ^nd December, 2010, the applicant was granted leave to apply by way of an application for judicial review for a declaration that s. 29 (1) of the Offences Against the State Act 1939 (as inserted by s. 5 of the Criminal Law Act 1976) is repugnant to the Constitution. A stay on the applicant's then imminent trial was obtained as part of the relief granted by the court.

3 Section 29 (1) of the Offences Against the State Act 1939 as substituted by s. 5 of the Criminal Law Act 1976 provides:-

"Where a member of the Garda Síochána not below the rank of superintendent is satisfied that there are reasonable grounds for believing that evidence relating to the commission or intended commission of an offence under this Act or the Criminal Law Act, 1976 or an offence which is for the time being a scheduled offence for the purposes of Part V of this Act, or evidence relating to the commission or intended commission of treason, is to be found in any building or part of a building or in any vehicle, vessel, aircraft or hovercraft or in any other place whatsoever, he may issue to a member of the Garda Síochána, not below the rank of a sergeant a search warrant under this section in relation to such place."

TIME

4 Given that the principal point at issue in this case concerns the validity of a statutory provision which permits a senior Garda officer (in this case Detective Superintendent Dominic Hayes who was in overall charge of the case) to issue a search warrant, the time when relevant information as to the person issuing the warrant became available to the applicant is of critical importance in determining when this judicial review application should have been brought. There must be every probability in this case - for reasons later set out in this judgment - that this information became known to the applicant on the date the warrant was executed, 8 ^th March, 2010, but for present purposes I am prepared to accept that the applicant may not have had the requisite information until some time later, but he definitely had it by 24 ^th May, 2010, the date upon which the applicant was served with a book of evidence and following which he was returned for trial from the District Court to the Waterford Circuit Court. Order 84 r. 21 of the Rules of the Superior Courts provides that an application for relief of the nature sought herein be brought within three months from the date when grounds for the application first arose. The requirement to move promptly is an essential element in our judicial review jurisprudence.

5 Having been arrested for conspiracy to murder Swedish cartoonist Lars Vilks, the applicant was charged on 15 ^th March, 2010, with an offence contrary to s. 13 of the Post Office (Amendment) Act 1951 as amended, in respect of which it is alleged that on 9 ^th January, 2010, he sent a menacing telephone call to a certain individual in the United States. He was served with a book of evidence at Waterford District Court on 24 ^th May, 2010. On 16 ^th November, 2010, the applicant's case was listed for trial at Waterford Circuit Court for the 25 ^th January, 2010. It involved the bringing of witnesses from the U.S.A. for which arrangements were put in hand.

6 The application for leave to bring judicial review proceedings was, however, only then brought on 2 ^nd December, 2010 and, upon the granting of leave, the applicant obtained the collateral benefit of an indefinite postponement of his pending trial pending the determination of the judicial review proceedings and any appeal which might follow from the decision of this Court.

7 The applicant had other legal advisors prior to those presently engaged. In circumstances where no explanation has been given by those former advisors for the delay in moving the leave application, the Court at the outset is compelled to conclude that the application has not been launched with the necessary degree of promptitude which is appropriate to the remedy of judicial review. It is also an application brought well outside the three month time period provided for by the Rules of the Superior Courts. A period in excess of six months was allowed to elapse before any challenge to the propriety of the search warrant got off the ground. Quite apart from the fact that this delay is fatal to the applicant's claim for the declaratory relief sought, it also reinforces an unfortunate impression that the judicial review process in this (as in a number of other criminal cases) is being deployed in such a fashion as to delay the ordinary course of criminal trials in this jurisdiction. In recent years a number of judges, myself included, have commented unfavourably about the bringing of very late applications of this nature and it is a practice which must stop if due respect for our criminal process is to be maintained.

FACTS OF THE PRESENT CASE

8 During the month of September 2009, the Garda Síochána in Waterford were made aware that there were persons resident in Ireland who were believed to be conspiring to murder Lars Vilks, a Swedish cartoonist whose drawings depicted the Islamic prophet Mohammed with the body of a dog. The statement of Detective Superintendent Dominic Hayes in the book of evidence states that a Ms. Colleen La Rose of Montgomery County, Pennsylvania, U.S.A. had travelled to Ireland via Holland in September, 2009 in furtherance of the conspiracy to murder Mr. Vilks with a firearm. His statement records that Ms. La Rose had an association with the applicant and his wife who reside in an apartment in Waterford City. As the officer in overall charge of the South Eastern Garda Region, Detective Superintendent Hayes was formally in charge of the investigation and established an incident room at Waterford Garda Station. He subsequently received via Garda Headquarters an intelligence report dated 1 ^st February, 2010, from the F.B.I. and a further intelligence report from the same agency on 19 ^th February, 2010. He also became aware that a Mr. Majeb Moughni, an attorney living in Detroit, had received a telephone call on 9 ^th January, 2010 from a male who threatened to kill him. This conversation had been taped by Mr. Moughni and a recording of this conversation along with a crime report from Dearborn Police Department concerning the complaint made by Mr. Moughni in respect of the threat he received was passed on to him. In his statement Detective Superintendent Hayes states that as a result of confidential information received, he suspected that the applicant herein had threatened to kill Mr. Moughni on 9 ^th January, 2010. Having obtained the applicant's telephone records, he ascertained that the telephone in the possession or ownership of the applicant had been in contact with the telephone number of Mr. Moughni's office in Dearborn, Detroit, Michigan, U.S.A. As a result of intelligence received and enquiries conducted he suspected that Ms. Colleen La Rose had conspired with a number of persons, including the applicant, to murder Mr. Lars Vilks. On 5 ^th and 8 ^th of March, 2010 he conducted a briefing with the investigation team at Waterford Garda Station. From his discussion with Detective Inspector Michael Lacey, Senior Investigating Officer, he was made aware of the progress of the investigation and the intelligence received regarding the conspiracy to murder Mr. Vilks with a...