Click here for
Explanatory Memorandum
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AN BILLE UM CHEARTAS COIRIÚIL (BARÁNTAIS
CHUARDAIGH), 2012
CRIMINAL JUSTICE (SEARCH WARRANTS) BILL 2012
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Mar a tionscnaíodh
As initiated
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ARRANGEMENT OF SECTIONS
Section
1. Amendment of Offences against the State Act 1939.
2. Amendment of section 26(1) of Misuse of Drugs Act 1977.
3. Amendment of section 8 of Criminal Justice (Drug
Trafficking) Act 1996.
4. Short title and commencement.
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[No. 47 of 2012]
Acts Referred to
Criminal Justice (Drug Trafficking) Act 1996
1996, No. 29
Criminal Law Act 1976
1976, No. 32
Misuse of Drugs Act 1977
1977, No. 12
Offences against the State Act 1939
1939, No. 13
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AN BILLE UM CHEARTAS COIRIÚIL (BARÁNTAIS
CHUARDAIGH), 2012
CRIMINAL JUSTICE (SEARCH WARRANTS) BILL 2012
————————
BILL
5
entitled
AN ACT TO AMEND THE PROVISIONS OF THE OFFENCES
AGAINST THE STATE ACT 1939, THE MISUSE OF
DRUGS ACT 1977 AND THE CRIMINAL JUSTICE (DRUG
TRAFFICKING) ACT 1996 RELATING TO THE ISSUE OF
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SEARCH WARRANTS; AND TO PROVIDE FOR
RELATED MATTERS.
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
1.—The Offences against the State Act 1939 is amended by the
substitution of the following section for section 29:
15
“Search
warrants
relating to
commission of
offences under
this Act, etc.
29.—(1) In this section ‘an offence to which this
section applies’ means—
(a) an offence under this Act,
(b) an offence under the Criminal Law Act
1976,
20
(c) an offence which is for the time being a
scheduled offence for the purposes of
Part V of this Act,
(d) treason, or
25
30
35
(e) an offence of attempting or conspiring
to commit, or inciting the commission
of, an offence referred to in paragraph
(a), (b) or (d).
(2) If a judge of the District Court is satisfied
by information on oath of a member of the Garda
Síochána not below the rank of sergeant that there
are reasonable grounds for suspecting that evidence of, or relating to, the commission of an
offence to which this section applies is to be found
in any place, the judge may issue a warrant for
the search of that place and any persons found at
that place.
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Amendment of
Offences against the
State Act 1939.
(3) Subject to subsections (4) and (5), if a
member of the Garda Síochána not below the rank
of superintendent is satisfied that there are reasonable grounds for suspecting that evidence of, or
relating to, the commission of an offence to which 5
this section applies is to be found in any place,
the member may issue to a member of the Garda
Síochána not below the rank of sergeant a warrant
for the search of that place and any persons found
at that place.
10
(4) A member of the Garda Síochána not
below the rank of superintendant shall not issue a
search warrant under this section unless he or she
is satisfied—
(a) that the search warrant is necessary for 15
the proper investigation of an offence
to which this section applies, and
(b) that circumstances of urgency giving rise
to the need for the immediate issue of
the search warrant would render it 20
impracticable to apply to a judge of the
District Court under this section for
the issue of the warrant.
(5) A member of the Garda Síochána not
below the rank of superintendent may issue a 25
search warrant under this section only if he or she
is independent of the investigation of the offence
in relation to which the search warrant is being
sought.
(6) A search warrant under this section shall be 30
expressed, and shall operate, to authorise the
member of the Garda Síochána named in the warrant, accompanied by such members of the Garda
Síochána or of the Defence Forces as the member
considers necessary—
35
(a) to enter, at any time or times within one
week of the date of issue of the warrant, on production if so requested of
the warrant or a copy of it, and if
necessary by the use of reasonable 40
force, the place named in the warrant,
(b) to search it and any persons found at
that place, and
(c) to seize anything found at that place, or
anything found in the possession of a 45
person present at that place at the time
of the search, that that member
reasonably believes to be evidence of,
or relating to, the commission of an
offence to which this section applies.
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(7) Notwithstanding subsection (6), a search
warrant issued by a member of the Garda Síochána not below the rank of superintendent under
this section shall cease to have effect after a period
4
of 48 hours has elapsed from the time of the issue
of the warrant.
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(8) A member of the Garda Síochána or of the
Defence Forces acting under the authority of a
search warrant under this section may—
(a) require any person present at the place
where the search is being carried out
to give to the member his or her name
and address, and
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(b) arrest without warrant any person
who—
(i) obstructs or attempts to obstruct
the member in the carrying out of
his or her duties,
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(ii) fails to comply with a requirement
under paragraph (a), or
(iii) gives a name or address which the
member has reasonable cause for
believing is false or misleading.
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25
30
35
40
(9) A person who obstructs or attempts to
obstruct a member of the Garda Síochána or of
the Defence Forces acting under the authority of
a search warrant under this section, who fails to
comply with a requirement under subsection
(8)(a) or who gives a false or misleading name or
address to the member shall be guilty of an offence
and shall be liable on summary conviction to a
class A fine or imprisonment for a term not
exceeding 12 months or both.
(10) The power to issue a search warrant under
this section is without prejudice to any other
power conferred by statute to issue a warrant for
the search of any place or person.
(11) A member of the Garda Síochána not
below the rank of superintendent who issues a
search warrant under this section shall, either at
the time the warrant is issued or as soon as reasonably practicable thereafter, record in writing the
grounds on which the warrant was issued, including how he or she was satisfied as to the matters
referred to in subsection (4).
(12) In this section—
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‘independent of’, in relation to the investigation of
an offence, means not being in charge of, or
involved in, that investigation;
‘place’ includes—
(a) a dwelling or a part thereof,
(b) a building or a part thereof,
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(c) a vehicle, whether mechanically propelled or not,
(d) a vessel, whether sea-going or not,
(e) an aircraft, whether capable of operation or not, and
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(f) a hovercraft.”.
Amendment of
section 26(1) of
Misuse of Drugs
Act 1977.
2.—Section 26(1) of the Misuse of Drugs Act 1977 is amended by
the substitution of “subject to the provisions of subsections (2) and
(2A) of section 8 of the Criminal Justice (Drug Trafficking) Act
1996” for “subject to the provisions of subsection (2) of section 8 of 10
the Criminal Justice (Drug Trafficking) Act 1996”.
Amendment of
section 8 of
Criminal Justice
(Drug Trafficking)
Act 1996.
3.—(1) Section 8 of the Criminal Justice (Drug Trafficking) Act
1996 is amended by the insertion of the following subsections after
subsection (2):
“(2A) (a) A member of the Garda Síochána not below the 15
rank of superintendent may issue a search warrant
under the said section 26 only if he or she is independent of the investigation of the offence in relation to
which the search warrant is being sought.
(b) In this subsection ‘independent of’, in relation to the 20
investigation of an offence, means not being in
charge of, or involved in, that investigation.
(2B) A member of the Garda Síochána not below the rank
of superintendent who issues a search warrant under the said
section 26 shall, either at the time the warrant is issued or as 25
soon as reasonably practicable thereafter, record in writing the
grounds on which the warrant was issued, including how he or
she was satisfied as to the matters referred to in subsection (2).”.
(2) The amendments of section 8 of the Criminal Justice (Drug
Trafficking) Act 1996 effected by subsection (1) shall apply only to 30
a search warrant that is issued under section 26 of the Misuse of
Drugs Act 1977 on or after the commencement of this section.
Short title and
commencement.
4.—(1) This Act may be cited as the Criminal Justice (Search
Warrants) Act 2012.
(2) This Act shall come into operation on the day after the day 35
of its passing.
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Click here for Bill
————————
AN BILLE UM CHEARTAS COIRIÚIL (BARÁNTAIS
CHUARDAIGH), 2012
CRIMINAL JUSTICE (SEARCH WARRANTS) BILL 2012
————————
EXPLANATORY AND FINANCIAL MEMORANDUM
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Purpose of Bill
The primary purpose of the Bill is to restore, in updated form, the
search warrant provision in section 29 of the Offences against the
State Act 1939 which was struck down by the Supreme Court in its
judgment in the case of Ali Charaf Damache v The Director of Public
Prosecutions, Ireland and the Attorney General (delivered on 23
February 2012). The Bill also amends the provisions in the Criminal
Justice (Drug Trafficking) Act 1996 relating to the issue of search
warrants under section 26 of the Misuse of Drugs Act 1977.
Provisions of the Bill
Section 1
Section 1 substitutes section 29 of the Offences against the State
Act 1939. The substituted section provides as follows:
Subsection (1) identifies the offences to which section 29 applies.
They are: an offence under the 1939 Act or the Criminal Law Act
1976; an offence that is a scheduled offence for the purposes of Part
V of the 1939 Act (i.e. offences that may be tried before the Special
Criminal Court), treason and the related inchoate offences of
attempting, conspiring or inciting.
Subsection (2) provides that a District Court judge may issue a
warrant for the search of a place. In order to do so the judge must
be satisfied by information on oath of a member of the Garda
Síochána of sergeant rank (or above) that there are reasonable
grounds for suspecting that evidence of or relating to the commission
of an offence to which the section applies is to be found in that place.
Subsection (3) empowers a member of the Garda Síochána of
superintendent rank (or above) to issue a search warrant under the
section to a sergeant (or above). This power is qualified by
subsections (4) and (5).
Subsection (4) provides that a superintendent may only issue a
warrant under this section if (i) he or she is satisfied that the warrant
is necessary for the proper investigation of an offence to which the
section applies and (ii) he or she is satisfied that circumstances of
urgency giving rise to the need for the immediate issue of the warrant
would render it impracticable to apply to a District Court judge.
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Subsection (5) adds a further qualification to the power of a
superintendent to issue a warrant under this section — the issuing
officer must be independent of the investigation concerned.
‘‘Independent of’’ is defined in subsection (12) as meaning not being
in charge or, or involved in the investigation concerned.
Subsection (6) concerns the information to be set out in the
warrant and the actions that may be carried out pursuant to the
warrant. The actions are those of entry, search (of both the place
and any person found there), and seizure of anything found at the
place or in the possession of a person present at the place. The
seizure power relates to items that the member of the Garda
Síochána/Defence Forces reasonably believes to be evidence of or
related to the commission of an offence to which the section applies.
The right to enter is subject to the obligation to produce the warrant
or a copy of it, if requested. The entry may be achieved by use of
reasonable force, if necessary.
A warrant issued by a District Court judge permits multiple entries
within 1 week of the date of issue of the warrant.
Subsection (7) specifies a maximum duration of 48 hours for
superintendent-issued warrants from the time of the issue of the
warrant.
Subsection (8) provides that a member of the Garda
Síochána/Defence Forces acting under the authority of a warrant
under the section may require any person present at the place where
the search is being carried out to give to the member his or her name
and address. It provides an arrest power in the event that any person:
obstructs or attempts to obstruct a member in the carrying out of
their duties, fails to give a member his or her name and address, or
gives a false or misleading name or address.
Subsection (9) creates a summary offence. It provides that a person
who: obstructs or attempts to obstruct a member acting under the
authority of a warrant, fails to comply with a requirement to provide
their name and address when requested, or who gives a false or
misleading name or address commits an offence. The maximum
penalties on conviction are a class A fine (i.e. a fine not exceeding
€5,000) and/or imprisonment for a term not exceeding 12 months.
Subsection (10) provides that the power to issue a warrant under
this section is without prejudice to any other power conferred by
statute to issue a warrant for the search of any place or person.
Subsection (11) requires a superintendent (or above) who issues a
warrant under this section to record the grounds on which he/she
issued the warrant either at the time or as soon as reasonably
practicable after issuing the warrant.
Subsection (12) provides a definition of ‘‘independent of’’ and
‘‘place’’ for the purposes of the section.
Section 2
This section amends section 26 of the Misuse of Drugs Act 1977.
Section 26 provides for judge/peace commissioner-issued search
warrants in relation to suspected drug offences. The amendment
updates the cross references to section 8 of the Criminal Justice
(Drug Trafficking) Act 1996 already contained in the section and is
consequential to the amendment to that Act contained in section 3.
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Section 3
This section amends section 8 of the Criminal Justice (Drug
Trafficking) Act 1996. Section 8(2) permits a superintendent (or
above) to issue a warrant under section 26 of the Misuse of Drugs
Act 1977 in circumstances of urgency requiring the immediate issue
of a warrant and where it would be impracticable to apply to either
a District Court judge or a peace commissioner. The amendments
are for the purpose of inserting two additional safeguards.
Subsection (1) inserts two new subsections after subsection (2) of
section 8. New subsection (2A) provides that only a superintendent
who is independent of the investigation concerned may issue a
warrant under section 26. ‘‘independent of’’ is defined as not being
in charge of, or involved in the investigation concerned. New
subsection (2B) requires a superintendent who issues a warrant
under section 26 to record the grounds on which he/she issued the
warrant either at the time or as soon as reasonably practicable after
issuing the warrant.
Subsection (2) provides that this section only applies to search
warrants issued under section 26 after the commencement of this
section.
Section 4
This provides for the short title of the Bill and commencement
arrangements. It provides that the Act will commence on the day
following its passing i.e. the day following its signature by the
President.
Financial Implications
It is not expected that the proposed legislation will result in any
significant costs to the Exchequer.
An Roinn Dlí agus Cirt agus Comhionannais,
Meitheamh, 2012.
Wt. —. 629. 6/12. Clondalkin Pharma and Healthcare. (X59609). Gr. 30-15.
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