Damache v DPP [2012] IESC 11 (23 February 2012)

Damache v DPP [2012] IESC 11 (23 February 2012)

Section 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 insofar as it permits a search of a dwelling on foot of a warrant issued by a Garda officer involved in the investigation, rather than by an independent person, thereby failing to provide the necessary impartiality and protection required by Article 40.5 of the Constitution.

Citation
[2012] IESC 11
Parties
Applicant/appellant: Ali Charaf Damache; Respondents: Director of Public Prosecutions, Ireland, and the Attorney General
Jurisdiction
Ireland
Judgment Date
23 February 2012
Procedural Posture
Judicial Review / Supreme Court Appeal From High Court Decision
Outcome
Appeal allowed; declaration granted of unconstitutionality of s. 29(1) as applied
Legal Topics
Search Warrants, Constitutionality of Legislation, Inviolability of Dwelling, Judicial Review, Proportionality, Administrative Acts
Constitutional Law Criminal Law Search Warrants Constitutionality of Legislation Inviolability of Dwelling Judicial Review Proportionality Administrative Acts

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Parties

Ali Charaf Damache

Applicant/appellant

Director of Public Prosecutions, Ireland, and the Attorney General

Respondents

Procedural Posture

Judicial Review / Supreme Court Appeal From High Court Decision

Legal Issues

  1. 1 Whether 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 for permitting a search warrant to be issued by a Garda officer involved in the investigation, rather than an independent person
  2. 2 Whether the issuance of a search warrant by a non-independent person violates Article 40.5 of the Constitution (inviolability of the dwelling)

Ratio Decidendi

Section 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 insofar as it permits a search of a dwelling on foot of a warrant issued by a Garda officer involved in the investigation, rather than by an independent person, thereby failing to provide the necessary impartiality and protection required by Article 40.5 of the Constitution.

Court Disposition

Appeal allowed; declaration granted of unconstitutionality of s. 29(1) as applied

Orders

  • 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 as it permitted a search of the appellant’s home on foot of a warrant not issued by an independent person.