Report: Gardaí should not issue search warrants

Gardaí and peace commissioners should be stripped of remaining powers to issue search warrants, according to the State’s legal advisory body.

In a major study, the Law Reform Commission concluded that only the courts should have the power to sign such warrants.

The commission has gone further than previous court rulings, judicial inquiries, and Oireachtas reviews on the matter.

If implemented, gardaí could no longer issue their own emergency search warrants in terrorism, drugs, criminal assets, and corruption investigations.

It would also remove the power of peace commissioners to issue gardaí with warrants in relation to a range of offences, including drugs and firearms.

The commission said the establishment of an audio-visual warrant application system to the High Court could deal with emergency situations.

In its 466-page report on search warrants and bench warrants, the commission recommended that the 300 separate legislative provisions on warrants be replaced by a new Search Warrants Act.

“Search warrants should only be issued by a court,” the report said in its recommendations.

It said some provisions allow gardaí and peace commissioners to issue them in “urgent situations”, where a district court judge was not available.

However, it said that “only a judge of the High Court should be able to issue emergency search warrants” and that this could be done using a live television link or by phone.

Currently, senior gardaí can issue search warrants in emergency situations, including under the Offences Against the State Act 1939, the Misuse of Drugs Act 1977, the Criminal Assets Bureau Act 1996, the Official Secrets Act 1963, and the Prevention of Corruption (Amendment) Act 2011.

The commission said provisions stipulating that Garda members of a certain minimum rank, who were independent of the investigation seeking the warrant, may issue a search warrant were “compatible with the Constitution” and cited relevant court cases.

It also said the European Convention of Human Rights did not state that the lack of judicial authorisation was, of itself, in violation of the convention. It said an Oireachtas review of the Offences Against the State Acts said the emergency power was “a vital weapon” for gardaí.

It said the Morris Tribunal concluded that it would be preferable search warrants be vested in judges, but said a “residual power” could be retained if gardaí cannot contact a judge.

The commission said it considered the matter and concluded the power should be held solely by the courts, with the High Court acting as an emergency system.

It said that if appropriate technology — such as Skype — was put in place there “should be no need” for emergency garda powers.

In relation to dealing with bench and committal warrants, the legal experts called for the introduction of the Fines Act 2014 and the commencement of Section 44 of the Road Traffic Act 2010, which provides for the payment of a fixed charge notice upon receipt of a summons.

It said the courts should also have the power to direct authorities to refrain from processing motor tax applications or changes in vehicle ownership involving people who have not paid a road traffic fine.

www.lawreform.ie