Damache v DPP & Others

• Jurisdiction: Ireland
• Judge: Denham C.J.
• Judgment Date: 23 February 2012
• Neutral Citation: [2012] IESC 11
• Court: Supreme Court
• Docket Number: [S.C. No. 253 of 2011]
• Date: 23 February 2012

Damache v DPP & Ors

Between/

Ali Charaf Damache

Applicant/Appellant

and

The Director of Public Prosecutions, Ireland, and the Attorney General

Respondents

[2012] IESC 11

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

Finnegan J.

[Appeal No: 253/2011]

THE SUPREME COURT

CONSTITUTIONAL LAW

Statute

Validity - Personal rights - Inviolability of dwelling - Search warrant - Whether 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 - Double construction rule - Ryan v O'Callaghan (Unrep, Barr J, 22/7/1987), Simple Imports v Revenue Commissioners [2000] 2 IR 243, Camenzind v Switzerland (App No 136/1996) (1999) 28 EHRR 458 and Hunter v Southam Inc [1984] 2 SCR 145 followed - Offences Against the State Act 1939 (No 13), s 29(1) - Constitution of Ireland 1937, Article 40.5 - Applicant's appeal allowed (253/2011 - SC - 23/2/2012) [2012] IESC 11

Damache v DPP

Facts The appellant sought, by way of judicial review, 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) was repugnant to the Constitution. The High Court (Kearns P.) refused to grant this application and the appellant appealed to this court. The appellant was initially investigated by the Gardai on suspicion of conspiracy to murder but was ultimately charged with an offence contrary to s. 13 of the Post Office (Amendment) Act, 1951 as amended, namely sending a menacing message by telephone. The appellant's dwelling home had been searched on foot of a search warrant issued pursuant to s. 29(1) of the Offences Against the State Act, 1939 as amended by Detective Superintendent Hayes and certain property, including a mobile telephone was removed from the appellant's home. Detective Superintendent Hayes was the person responsible for commencing the investigation into the alleged conspiracy to murder and he was personally involved in that investigation. It was submitted on behalf of the appellant that the decision of the Court of Criminal Appeal in DPP v Birney & Others [2007] 1 IR 337 determined that the wording of s. 29(1) could not be understood to mean that a member of An Garda Siochana who issues a search warrant must be independent of the investigation to which the search warrant relates. The appellant submitted that as a result s. 29(1) of the 1939 Act as amended was repugnant to the Constitution as it permitted a search warrant to be issued by a member of An Garda Siochana who was not independent of the criminal investigation. The appellant further relied on the guarantee of the inviolability of the dwelling provided for in Article 40.5 of the Constitution.

Held by the Supreme Court: Denham C.J. (Murray, Hardiman, Fennelly, Finnegan JJ concurring) in allowing the appeal: That the Court determined this application despite the fact it ought to have been brought by way of plenary proceedings. The issuing of a search warrant is an administrative act but it must be exercised judicially. The literal interpretation of the words of s. 29(1) as determined by the Court of Criminal Appeal in the Birney case did not preclude the superintendent in charge of an investigation from issuing a search warrant and a proviso that the superintendent issuing the warrant should be independent of the investigation could not be inferred. However, the person issuing a search warrant should be an independent person. For the process of obtaining a search warrant to be meaningful, it is necessary for the person authorising the search to be able to assess the conflicting interests of the State/common good and the individual in an impartial manner. There should also be reasonable grounds establishing that an offence has been committed and that evidence may be found at the place to be searched. Any interference with the constitutional rights of individuals must be proportionate. This case was decided on its own circumstances, namely a member of the investigating team issued the warrant and the search related to the appellant's dwelling. Having regard to the foregoing, s. 29(1) of the 1939 was repugnant to the Constitution.

Reporter: L.O'S

OFFENCES AGAINST THE STATE ACT 1939 S29(1)

CRIMINAL LAW ACT 1976 S5

CRIMINAL JUSTICE ACT 2006 S71

POST OFFICE (AMDT) ACT 1951 S13

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

OFFENCES AGAINST THE STATE ACT 1939 S29(2)

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

CRIMINAL JUSTICE (SURVEILLANCE) ACT 2009 S7

CONSTITUTION ART 40.5

CONSTITUTION ART 38

OFFENCES AGAINST THE STATE ACT 1939 S29

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

LARCENY ACT 1916 S42(1)

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

PIGS MARKETING BOARD v DONNELLY (DUBLIN) LTD 1939 IR 413

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

SEMAYNES CASE, IN RE 77 ER 194 1604 5 CO REP 91

BLACKSTONE COMMENTARIES ON THE LAWS OF ENGLAND VOL 3 1768

AG, PEOPLE v O'BRIEN 1965 IR 142

AG, PEOPLE v HOGAN 1 FREWEN 360

DPP v DUNNE 1994 2 IR 537 1994/9/2621

LARCENY ACT 1916 S42

KING v AG & DPP 1981 IR 233

CAMENZIND v SWITZERLAND 1999 28 EHRR 458

HUNTER & ORS v SOUTHAM INC 1984 2 SCR 145 11 DLR (4TH) 641

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

REPORT OF THE TRIBUNAL OF INQUIRY SET UP PURSUANT TO THE TRIBUNAL OF INQUIRY (EVIDENCE) ACTS 1921-2002 INTO CERTAIN GARDAI IN THE DONEGAL DIVISION: REPORT ON THE ARREST & DETENTION OF SEVEN PERSONS AT BURNFOOT COUNTY DONEGAL ON THE 23RD OF MAY 1998 & THE INVESTIGATION RELATING TO SAME PARAS 6.23-6.24

1 Judgment of the Court delivered on the 23rd day of February, 2012 by Denham C.J.

2 1. This is an appeal by Ali Charaf Damache, the applicant/appellant, referred to as "the appellant", from the decision of the High Court (Kearns P.) given on the 13 ^th May, 2011, refusing the appellant's application.

Judicial Review

3 2. The appellant brought an application by way of judicial review seeking, inter alia:-

4 (a) 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), and referred to as s. 29(1) of the Act of 1939, is repugnant to the Constitution;

5 (b) a stay on any further step being taken in the prosecution presently before Waterford Circuit Criminal Court entitled D.P.P. v. Charafe Damache (Bill No. CT0041/10), pending the determination of these judicial review proceedings.

6 3. The application for judicial review was grounded on an affidavit of Caroline Egan, Solicitor for the appellant. She deposed that she is in possession of a book of evidence relating to the prosecution of the appellant and that part of her information is taken from the statement of Detective Superintendent Dominic Hayes in the book of evidence.

7 4. Caroline Egan, basing her affidavit on the statement of Detective Superintendent Hayes, deposed that it would appear that:-

"In September 2009, Detective Superintendent Hayes who is attached to the South Eastern Garda Region based at Waterford Garda Station, commenced an investigation into an alleged conspiracy to murder Mr. Lars Vilks, a Swedish cartoonist who had depicted the Islamic prophet Mohammad with the body of a dog, thereby provoking serious unrest in several Muslim countries. It was suspected that the Applicant was involved in the said conspiracy along with other individuals resident in Ireland. It was also subsequently suspected that on the 9 ^th January 2010, the Applicant made a threatening phone call to an individual in the United States."

8 During the course of the investigations, D/Superintendent Hayes personally received from D/Superintendent Peter Kirwan, of the Crime and Security Section of An Garda Síochána, intelligence reports from the FBI and phone recordings made in the United States. D/Superintendent Hayes personally applied to Chief Superintendent Kevin Donahue for telephone billing relating to a mobile phone connected to the investigation.

9 On the 5 ^th and 8 ^th March 2010, D/Superintendent Hayes conducted briefings at Waterford Garda Station and heard from D/Inspector Michael Leahy in relation to the progress of the investigation.

10 On the 8 ^th March 2010, D/Superintendent Dominic Hayes granted a search warrant under s. 29(1) of the Offences Against the State Act 1939 (as inserted by s. 5 of the Criminal Law Act 1976) to D/Sergeant David Walsh. The search warrant was granted in relation to 1 John Colwyn House, High Street, Co. Waterford, the Applicant's dwelling at the time, and was executed on the 9 ^th March 2010."

11 5. Ms. Egan deposed that the appellant, his wife and child, were present at the time of the search, that the appellant was arrested for the offence of conspiracy to murder contrary to s. 71 of the Criminal Justice Act, 2006, and that items of property were removed from the appellant's home as evidence, including a mobile phone.

12 6. The appellant has been charged with an offence, but not the offence on which he was arrested. Ms Egan deposed that the appellant was subsequently detained at Waterford Garda Station and charged with an offence contrary to s. 13 of the Post Office (Amendment) Act, 1951, as amended, that he did on the 9 ^th January, 2010 send a message by telephone which was of a menacing character to Madjid Moughni. Ms. Egan deposed that...