REPORT SEARCH WARRANTS AND BENCH WARRANTS (LRC 115 – 2015) © COPYRIGHT Law Reform Commission FIRST PUBLISHED December 2015 ISSN 1393-3132 LAW REFORM COMMISSION’S ROLE The Law Reform Commission is an independent statutory body established by the Law Reform Commission Act 1975. The Commission’s principal role is to keep the law under review and to make proposals for reform, in particular by recommending the enactment of legislation to clarify and modernise the law. Since it was established, the Commission has published over 190 documents (Working Papers, Consultation Papers, Issues Papers and Reports) containing proposals for law reform and these are all available at lawreform.ie. Most of these proposals have contributed in a significant way to the development and enactment of reforming legislation. The Commission’s role is carried out primarily under a Programme of Law Reform. Its Fourth Programme of Law Reform was prepared by the Commission following broad consultation and discussion. In accordance with the 1975 Act, it was approved by the Government in October 2013 and placed before both Houses of the Oireachtas. The Commission also works on specific matters referred to it by the Attorney General under the 1975 Act. The Commission’s Access to Legislation project makes legislation in its current state (as amended rather than as enacted) more easily accessible to the public in three main outputs: the Legislation Directory, the Classified List and the Revised Acts. The Legislation Directory comprises electronically searchable indexes of amendments to primary and secondary legislation and important related information. The Classified List is a separate list of all Acts of the Oireachtas that remain in force organised under 36 major subject-matter headings. Revised Acts bring together all amendments and changes to an Act in a single text. The Commission provides online access to selected Revised Acts that were enacted before 2006 and Revised Acts are available for all Acts enacted from 2006 onwards (other than Finance and Social Welfare Acts) that have been textually amended. ii MEMBERSHIP The Law Reform Commission consists of a President, one full-time Commissioner and three part-time Commissioners. The Commissioners are: President: Mr Justice John Quirke, former judge of the High Court Full-time Commissioner: Finola Flanagan, Barrister-at-Law Part-time Commissioner: Donncha O’Connell, Professor of Law Part-time Commissioner: Thomas O’Malley, Barrister-at-Law Part-time Commissioner: Ms Justice Carmel Stewart, Judge of the High Court iii LAW REFORM RESEARCH STAFF Director of Research: Raymond Byrne BCL, LLM (NUI), Barrister-at-Law Legal Researchers: Hanna Byrne BCL (Intl) (NUI), MSc (Universiteit Leiden) Niall Fahy BCL, LLM (LSE), Barrister-at-Law Owen Garvey BA, LLB (NUI), Barrister-at-Law Finn Keyes LLM (LSE), Barrister-at-Law Meghan McSweeney BCL with Hist, LLM (Georgetown), Attorney-at-Law (NY) Jack Nea LLB, LLM (NUI), Barrister-at-Law Michael O’Sullivan BCL (NUI), Dip IT (DCU), Solicitor Fiona O’Regan BCL, LLM, PhD (NUI) ACCESS TO LEGISLATION Project Manager: Alma Clissmann, BA (Mod), LLB, Dip Eur Law (Bruges), Solicitor Deputy Project Manager: Jane Murphy LLB (UL), LLM (NUI), Barrister-at-Law iv ADMINISTRATION STAFF Head of Administration: Deirdre Fleming Executive Officer: Pearl Martin Staff Officer: Annmarie Cowley Clerical Officers: Patricia Mooney Brian Purcell Library and Information Manager: Órla Gillen, BA, MLIS PRINCIPAL LEGAL RESEARCHERS FOR THIS REPORT Sarahrose Murphy BCL (NUI), LLM (NUI), Barrister-at-Law Roz O’Connell BA, LLB (NUI), LLM (Dub), Barrister-at-Law The Commission also wishes to thank former legal research intern Lianne Meagher Reddy LLB (UL), LLM (NUI) for her contribution to this Report. v CONTACT DETAILS Further information can be obtained from: Head of Administration Law Reform Commission 35-39 Shelbourne Road Ballsbridge Dublin 4 Telephone: +353 1 637 7600 Fax: +353 1 637 7601 Email: [email protected] Website: www.lawreform.ie vi ACKNOWLEDGEMENTS The Commission would like to thank the following people and organisations who provided valuable assistance: Frank Buttimer, Solicitor, Frank Buttimer & Co Solicitors Centre for Criminal Justice, University of Limerick Commission for Communications Regulation Commission for Energy Regulation John Coyle, Courts Service Lorna Dempsey, Environmental Protection Agency Department of Arts, Heritage and Gaeltacht Department of Communications, Energy and Natural Resources Department of Defence, Legislation Branch Barry Donoghue, Deputy Director of Public Prosecutions Judge William Hamill, Judge of the District Court Fergus Healy, Chief Superintendent, An Garda Síochána Health Information and Quality Authority Health Products Regulatory Authority (formerly, Irish Medicines Board) Health Service Executive, Environmental Health Services Inland Fisheries Ireland Colin King, Senior Lecturer in Law, University of Sussex Law Society of Ireland, Criminal Law Committee Detective Sergeant Brian Mahon, Office of the Director of Corporate Enforcement Michael Mangan, Chief Superintendent, An Garda Síochána Her Honour Judge Catherine Murphy, Judge of the Circuit Court Kevin O’Connell, Office of the Director of Corporate Enforcement Margaret O’Driscoll BL Alan O’Dwyer BL Margaret O’Neill, Courts Service Road Safety Authority David Wheelahan BL vii TABLE OF CONTENTS SUMMARY 1 CHAPTER 1 HISTORY OF SEARCH WARRANTS AND CONSTITUTIONAL AND INTERNATIONAL HUMAN RIGHTS STANDARDS 9 A Historical Development of Search Warrants 9 (1) The development of search warrants in England and the United States 9 (2) Criticisms of general search warrants in the 17th century 10 (3) The end for general search warrants under English common law: Entick v Carrington (1765) 10 (4) United States Constitution: Fourth Amendment ban on unreasonable search and seizures 11 (5) Evolution of search warrants in English and Irish law to the 20th century 11 B The Constitution and International Human Rights Standards Applicable to Search Warrants 12 (1) Protection of privacy 12 (2) Protection of the dwelling 13 (3) Damache v Director of Public Prosecutions 14 (4) Legislative response to the Damache case 19 (5) Conclusions on constitutional and ECHR standards applicable to search warrants 21 CHAPTER 2 A GENERALLY APPLICABLE SEARCH WARRANTS ACT 23 A A Generally Applicable Search Warrants Act 23 (1) Relationship between law on search warrants and general law on entry, search and seizure, including powers of entry and search without warrant 23 (2) Over 300 existing search warrant provisions 27 (3) Search Warrant Acts in other jurisdictions 28 (4) Conclusion on the enactment of a generally applicable Search Warrants Act 30 B Scope of offences to which the Act should apply 30 (1) Option 1: Search Warrants Act could apply to arrestable offences 31 (2) Option 2: Search Warrants Act could apply to all criminal offences 31 (3) Option 3: Search Warrants Act could apply to indictable offences 31 (4) Discussion 31 C Main elements of a generally applicable Search Warrants Act 41 ix (1) Section 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997: origins and subsequent amendments 41 (2) Main elements of section 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997, as amended 44 CHAPTER 3 APPLICATION FOR SEARCH WARRANTS 47 A Reference to the Applicant 47 B The Evidential Threshold to be Met by Applicants 47 (1) Reasonableness of the applicant’s suspicion 48 (2) Affirmation of the applicant’s opinion 52 C Anticipatory Search Warrants 56 D Requests for Additional Information 58 E Form of Search Warrant Applications 59 (1) Format of “information for search warrant” forms in Ireland 60 (2) Implementing a standard search warrant application form 61 F An Electronic Search Warrant Application Process 62 (1) Electronic filing of search warrant forms 62 (2) Removing the requirement for a personal appearance by the applicant before the issuing authority 64 (3) Issuing authority in urgent electronic applications 70 (4) Affirmation of the applicant’s opinion where requirement for personal appearance removed 71 G Notice of Previous Search Warrant Applications 73 CHAPTER 4 ISSUING SEARCH WARRANTS 75 A Court Should be the Issuing Authority under the Search Warrants Act 75 (1) Non-judicial search warrants 75 (2) Administrative nature of power to issue search warrants 77 (3) Requirement that issuing authority be neutral and detached 78 (4) Conclusion: Garda warrants 85 (5) Conclusion: Peace Commissioner warrants 86 B The Contents of a Standard Search Warrant Form 87 (1) Current format and content of a search warrant form 88 (2) Discussion 88 C Records of Issued Search Warrants 91 D Electronic Issuing of Search Warrants 93 (1) Possession of the search warrant to show the owner or occupier 93 (2) Electronically issuing of search warrants in limited circumstances 95 CHAPTER 5 EXECUTION OF SEARCH WARRANTS 99 x A The Validity Period for Search Warrants 99 (1) General validity period of 7 days 99 (2) Exception for urgent electronic search warrants 100 (3) Extension of the validity period 101 (4) Effect on legislation providing for longer validity periods 102 B Time of Execution of Search Warrant 103 C Scope of Authority to Enter and Search 105 (1) Multiple entry search warrants in other jurisdictions 106 (2) “Break from search” provisions in other jurisdictions 107 (3) Discussion as to the scope of the authority to be set out in the Search Warrants Act 107 D The Use of Force in Executing a Search Warrant 108 E Giving a Copy of