Court of Criminal Appeal allows appeals and orders retrial due to unconstitutional search warrants under the 1939 Act.

THE COURT OF CRIMINAL APPEAL

CCA Nos. 301, 308/09, 6/10

Denham C.J.

Moriarty J.

Hogan J.

Between/

The People (Director of Public Prosecutions)

and

Jason Kavanagh

Applicant

and

The People (Director of Public Prosecutions)

and

Mark Farrelly

Applicant

and

The People (Director of Public Prosecutions)

and

Christopher Corcoran

Applicant

Judgment of the Court delivered on the 24th day of May, 2012, by Denham C.J.

1. Jason Kavanagh, Mark Farrelly and Christopher Corcoran, the applicants before the Court of Criminal Appeal in these appeals,

referred to collectively as “the applicants”, were accused jointly, with David Byrne and Niall Byrne, of:-

(i) Having falsely imprisoned Paul Richardson on the 13th and 14th days of March, 2005 at 28 Ashcroft, Raheny,

Dublin 5, in the County of the City of Dublin, contrary to section 15 of the Non Fatal Offences Against the Person

Act, 1997.

(ii) Having falsely imprisoned Marie Richardson on the 13th and 14th days of March, 2005 at 28 Ashcroft, Raheny,

Dublin 5, in the County of the City of Dublin, contrary to section 15 of the Non Fatal Offences Against the Person

Act, 1997.

(iii) Having falsely imprisoned Ian Richardson on the 13th and 14th days of March, 2005 at 28 Ashcroft, Raheny,

Dublin 5 in the County of the City of Dublin, contrary to section 15 of the Non Fatal Offences Against the Person

Act, 1997.

(iv) Having falsely imprisoned Kevin Richardson on the 13th and 14th days of March, 2005 at 28 Ashcroft, Raheny,

Dublin 5, in the County of the City of Dublin, contrary to section 15 of the Non Fatal Offences Against the Person

Act, 1997.

(v) Having robbed Paul Richardson and Securicor Security Services Ireland Limited of €2,280,000 on the 14th day of

March, 2005, in the County of the City of Dublin contrary to section 14 of the Criminal Justice (Theft and Fraud

Offences) Act, 2001.

2. The applicants were convicted on the 30th July, 2009, sentenced on the 12th November, 2009, and have appealed to the Court of

Criminal Appeal.

Preliminary Issue

3. There is a preliminary issue before the Court. It is a discrete matter, addressed in advance of full appeals. Two fundamental

questions arise at this time:

(i) Does the decision in Damache v. DPP and Ors [2012] IESC 11 apply to these cases?

(ii) If it does apply, what are the consequences?

Events

4. The events giving rise to these proceedings were as follows. On the 13th and 14th March, 2005, a number of men forced entry into

the Richardson family home. They falsely imprisoned the Richardson family with the intent of forcing Paul Richardson, under threat of

harm to his family, to undertake certain acts in his capacity as an employee of Securicor Security Services Ireland Ltd., so as to

facilitate a robbery. Paul Richardson’s wife and two sons were taken to Cloon Wood, County Wicklow, where they were kept for a

period overnight while Paul Richardson was kept at the family home. On the morning of the 14th March, 2005, Paul Richardson went to

work and, under duress and in accordance with instructions, enabled a drop-off of €2.28 million in cash at the car park of the Angler’s

Rest Pub, County Dublin. Marie, Kevin and Ian Richardson were left tied up in Cloon Wood. However they managed to release

themselves, and obtained assistance.

5. On the 30th July, 2009, the applicants were convicted on all counts by a jury of eleven (one member having been discharged by

reason of a family bereavement). The jury failed to reach a verdict in relation to the other accused; David Byrne and Niall Byrne.

6. On the 12th November, 2009, Jason Kavanagh was sentenced to 25 years imprisonment, concurrently on each count, which was

backdated to the 1st November, 2008; Mark Farrelly was sentenced to twenty five years imprisonment, concurrently on each count,

from the 30th July, 2009, and Christopher Corcoran was sentenced concurrently on each count, to twelve years imprisonment from

the 30th July, 2009.

7. Each of the applicants has appealed his conviction and sentence. Jason Kavanagh’s Notice of Appeal was filed on the 2nd

December, 2009; Mark Farrelly’s Notice of Appeal was filed on the 11th December, 2009; and Christopher Corcoran’s appeal was filed

on the 8th January, 2010.

Damache Case

8. A preliminary issue has arisen in each of the three appeals, by reference to the decision of the Supreme Court in Damache v. DPP

[2012] IESC 11 (unreported, 23rd February, 2010). It was held in Damache, at paragraph 59, that:-

“This Court would grant 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 as it

permitted a search of the appellant’s home contrary to the Constitution, on foot of a warrant which was not issued by an

independent person.”

9. The first question before the Court for consideration is whether the decision in Damache applies to the appeals of the applicants.

Each of the applicants had appealed to this Court, and grounds of appeal had been filed, but no hearing date had been listed, prior to

the decision in Damache v. DPP [2012] IESC 11.

Jason Kavanagh

10. It was submitted that Jason Kavanagh seeks to rely upon ground J, in his Notice of Appeal, which was filed before the Damache

decision was given. Ground J states:-

“The learned trial judge erred in law and in fact when he found that the search of the appellant’s home and his

subsequent arrest during that search were lawful”.

11. This ground refers, inter alia, to the admission of evidence that was obtained after a search of the applicant’s home which was

made on foot of a search warrant issued by Superintendent Conneely, pursuant to s. 29 of the Offences Against the State Act, 1939,

as inserted by s. 5 of the Criminal Law Act, 1976, referred to as “s. 29 of the Act of 1939.”

12. On Day 14 of the trial (18th May, 2008), the learned trial judge ruled on the issue as to whether the prosecution had fulfilled the

legal requirements and had laid a foundation for the subsequent admission of evidence.

13. The home of each of the appellants was searched pursuant to a warrant issued by Superintendent Conneely. The evidence in

relation to the warrants, which had been issued under s. 29 of the Act of 1939, was given by Superintendent Conneely on Day 14 of

the trial (18th May, 2008). It is clear from that evidence that:-

(i) Superintendent Conneely was one of the senior garda officers involved in the investigation of the offences in this

case;

(ii) Superintendent Conneely issued the warrant pursuant to s. 29 of the Act of 1939 to search Jason Kavanagh’s

home at 27, Parlickstown Court, Mulhuddart, Dublin 15; as he did for the home of the other applicants;

(iii) Jason Kavanagh was arrested;

(iv) After Jason Kavanagh’s arrest, Superintendent Conneely authorised the taking of bodily samples from Jason

Kavanagh during his period of detention at Santry Garda Station.

Warrants issued under s. 29 of the Act of 1939

14. Superintendent Conneely gave evidence, on the 18th May, 2009, that from his investigations it was his belief that there was

evidence in relation to the unlawful possession of firearms and other matters at 27, Parlickstown Court, Mulhuddart, Dublin 15, and

that on the 26th April, 2005, he issued a warrant under s. 29 of the Act of 1939 for that address to Declan Smith, Detective

Sergeant, An Garda Síochána, to enter within a week the said premises, if necessary by force, to search the premises and any person

found there, and to seize anything found on such person which any member had reason for believing to be evidence of or relating to

the commission of an offence under the Act of 1939, as amended, for an offence which was a scheduled offence. Superintendent

Conneely was aware that Jason Kavanagh resided at that address.

15. Superintendent Conneely gave evidence that on the 27th April, 2005, Jason Kavanagh was arrested at 27, Parlickstown Court,

Mulhuddart, Dublin 15, for an offence under s. 30 of the Act of 1939, on suspicion of being in the unlawful possession of firearms at

the home of Mr. Richardson on the 13th/14th March, 2005.

16. Superintendent Conneely gave evidence that on the 27th April, 2005, he was on duty at Santry Garda Station. He was informed

by Detective Sergeant Smith of Jason Kavanagh’s arrest, and he authorised him to take photographs, fingerprints and bodily samples

under the Criminal Justice (Forensic Evidence) Act, 1990, from Jason Kavanagh. He authorised the taking of blood, hair and samples of

saliva.

17. Superintendent Conneely gave evidence that he issued in excess of 60 warrants in relation to these crimes over two days.

18. Superintendent Conneely gave evidence that on the 26th April, 2005, he issued a warrant under s. 29 of the Act of 1939 to Seán

Hogan, Detective Sergeant, An Garda Síochána, to search 23, Moatview Court, Priorswood, Dublin 17, the home of Mark Farrelly,

whom Superintendent Conneely was satisfied was involved in the offences before the Court.

19. Superintendent Conneely gave evidence that on the 27th April, 2005, Mark Farrelly was arrested at 23, Moatview Court, under s.

30 of the Offences Against the State Act, 1939, on suspicion of being in unlawful possession of firearms on the 13th/14th March,

2005, at 28 Ashcroft, Raheny, and was detained at Blanchardstown Garda Station.

20. Superintendent Conneely gave evidence authorising the taking of fingerprints, photographs, and a bodily sample from Mark

Farrelly.

21. Superintendent Conneely gave evidence that on the 26th April, 2005, he prepared a number of s. 29 Act of 1939 warrants,

included was a warrant given to Sergeant Michael Mulligan, An Garda Síochána, to search 94 Bayside Boulevard North, Bayside,

Sutton, Dublin 13, the home of Christopher Corcoran, where he was satisfied there was evidence in relation to the investigation, being

in unlawful possession of firearms.

22. Superintendent Conneely gave evidence that on the 27th April, 2005, Sergeant Mulligan arrested Christopher Corcoran under s. 30

of the Act of 1939 on suspicion of being in possession of firearms at 28 Ashcroft, Raheny, on the 13th/14th March, 2005, and he was

detained at Store Street Garda Station. Superintendent Conneely authorised Sergeant Mulligan to photograph, fingerprint and take

bodily swabs from Christopher Corcoran, under the Criminal Justice (Forensic Evidence) Act, 1990.

23. On the evening of the 28th April, 2005, Christopher Corcoran was brought to the District Court, Chancery Street, where

Superintendent Conneely applied for an extension of his detention under s. 30(4) of the Act of 1939, and the District Court ordered

that the detention be extended for a further 24 hours.

24. Superintendent Conneely gave evidence that on the 16th December, 2005, he attended at the Dublin Metropolitan District Court

and sought and obtained a warrant pursuant to s. 30A(1) of the Act of 1939 for the arrest of Mark Farrelly, who had previously been

arrested under s. 30 of the Act of 1939 and released without charge, but that in the meantime new evidence, DNA evidence, had

been obtained.

Submissions on behalf of Jason Kavanagh

25. It was submitted by counsel on behalf of Jason Kavanagh that Superintendent Conneely was not independent of the investigation.

It was submitted that the facts of his case are foursquare within those of Damache v. D.P.P. and Ors [2012] IESC 11.

26. It was submitted that Jason Kavanagh is entitled to rely on the finding of the unconstitutionality of s. 29 of the Act of 1939 made

in the Damache case.

27. It was submitted that Jason Kavanagh’s case had not reached finality, as his appeal is live before this Court and that thus the

Damache principle may be applied.

28. It was pointed out that the search warrant under s. 29 of the Act of 1939 was challenged at the trial. This included a submission

that the reliance by An Garda Síochána on s. 29 of the Act of 1939 was a colourable device and that a judicially issued warrant,

which carried with it the safeguards of a judicial enquiry into the propriety of a warrant, should have been employed, which

submission at the trial was specifically adopted by counsel for Jason Kavanagh.

Constitutionality of an Act

29. It was submitted that Jason Kavanagh had not been permitted to challenge the warrant any further in the trial. Naturally, by

virtue of Article 34.3.2 of the Constitution, the constitutionality of an Act cannot be challenged in the Circuit Criminal Court. In fact,

when counsel for one of the co-accused (Mr. F. Kavanagh S.C., counsel for Niall Byrne) tried to do so on the point now determined by

Damache, the learned trial judge stated that he was:-

“[…] not in power to decide that and I would be bound by [DPP v. Birney [2007] 1 I.R. 337] [ …] in any event”

[Transcript, Day 14, at p. 86]

30. Counsel replied by stating:-

“I simply say that the investigating officer is effectively a Judge in his own cause and that it offends against two

principles, guarantee of the inviolability of the dwelling under Article 40.5 of the Constitution and Article 8 of the European

Convention on Human Rights and it also offends against the guarantee of a fair trial enshrined in Article 38 of the

Constitution and that in issuing the warrant he was acting as Judge in his own cause as head of the investigation. I say it

is a breach of fair procedures because there is no impartial or independent assessment of the need for the warrant in the

first place and I simply put that on the record.”

31. Also, it was submitted that this ground was listed as a ground of appeal before the judgment in Damache was delivered.

32. Thus, it was submitted, Jason Kavanagh has not acquiesced in the use of s. 29 of the Act of 1939.

33. It was submitted that Jason Kavanagh should be entitled to rely on the decision in Damache so as to assert that his home was

searched otherwise than in accordance with law and in breach of his constitutionally protected right to the inviolability of his dwelling,

for, where there is a finding that a post 1937 statute is unconstitutional, that section is deemed invalid from the date of its

enactment.

34. On that basis, it was submitted, Jason Kavanagh’s home was searched on foot of an unlawful warrant and so amounted to a

breach of his constitutional rights, and, thus all evidence flowing from that search should have been excluded from the trial: The

People (DPP v. Kenny) [1990] 2 I.R. 110, [1990] ILRM 56; The People (DPP v. Laide) [2005] IE CCA 24, [2005] 1 I.R. 209. Also, he was

not in lawful detention, it was submitted, when bodily samples were taken from him, and these samples should not have been

admitted at the trial.

35. It was submitted that the fact that Jason Kavanagh did not challenge the constitutionality of s. 29 of the Act of 1939 prior to his

trial in separate legal proceedings is not a bar to him doing so now.

36. Further, it was submitted that had Jason Kavanagh sought to challenge s. 29 of the Act of 1939 prior to his trial, the DPP would

have objected to the proceedings on the basis that they were premature and that the facts of the case had not been established.

Counsel submitted that he was not estopped from raising the point at this stage.

37. It was submitted that Jason Kavanagh’s case had not reached finality, and that he is entitled to rely on the third party right that

was vindicated in Damache, i.e. the unconstitutionality of s. 29 of the Act of 1939.

38. It was submitted that Jason Kavanagh’s appeal on this preliminary issue should be allowed and a re-trial ordered.

Submissions adopted

39. It was a feature of the joint trial that throughout the trial counsel for one accused adopted the submissions of counsel of a co-

accused. This cut down on unnecessary repetition of submissions and delay in the trial. This approach was permitted by the learned

trial judge. It was submitted that a decision in favour of one accused in the same trial on the issue of the s. 29 warrant should apply

to all.

Submissions on behalf of the DPP

40. It was submitted on behalf of the DPP that the independence of Superintendent Conneely was raised only as an ancillary point,

and that the main point argued was that the Superintendent did not have sufficient material upon which to make a fully informed

decision. It was submitted that counsel for Mark Farrelly had accepted that the Superintendent could issue such a warrant but that it

was a colourable device. It was submitted that the main argument relied upon by the applicants was that the Superintendent did not

give any or any sufficient evidence of having the requisite state of mind.

41. It was submitted that the arguments were summarised in the ruling of the learned trial judge on the issue [Transcript Day 16

pages 1 – 9]. The learned trial judge, it was submitted, relied on the fact that no suggestion had been made that the provisions of s.

29(1) of the Act of 1939 had not been available to the investigating gárdaí. Rather that the argument had been that other powers

should have been invoked instead. The learned trial judge analysed the Superintendent’s evidence with a view to ascertaining

whether evidence had been given of the requisite state of mind and he concluded that the evidence was such that there were

reasonable grounds to issue the warrants in question and that the statutory precondition for the issue of the warrants had been met.

42. It was accepted by the DPP that: (a) there was no question of urgency in the issuing of the search warrants; (b) that the issue

of the search warrants was not independent of the investigation; and (c) the premises searched were dwellings.

43. It was submitted that the declaration of invalidity of a statute only applies to the party in litigation and prospectively and will only

apply retrospectively in wholly exceptional circumstances.

44. It was submitted that the fact of an extant appeal is insufficient ground to enable the applicants to rely on a windfall from the

Damache decision; that each applicant had chosen not to challenge the constitutionality of s. 29 of the Act of 1939 prior to the trial.

45. It was submitted that appealing to the Court of Criminal Appeal against the manner in which the trial was conducted is an

inappropriate way for the applicants to advance Damache type arguments. That the correct way to challenge the validity of the

search warrants was by way of judicial review, seeking certiorari of the convictions, or by way of a plenary hearing seeking a

declaration.

46. It was submitted that any appeal to the Court of Criminal Appeal must be in respect of the trial and in relation to arguments and

points of law raised therein: The People (DPP) v. Cronin (No. 2) [2006] IESC 9, [2006] 4 I.R. 329. Further, that the applicants have

acquiesced in the use of s. 29 of the Act of 1939.

47. Also, it was submitted, that the lack of appellate jurisdiction to deal with the points now raised meant that on that point the

proceedings are concluded and finality reached.

48. It was submitted that the function of the Court of Criminal Appeal is not to facilitate a complete rehearing of the case. Rather, it

involves targeted criticism of the conduct of the criminal trial in relation to arguments and points raised. In this case it was submitted

that the applicants are seeking to go beyond a submission that the trial judge made an error in law; they are seeking to take

advantage of a shift in the law to enable an argument to be raised that was not raised at the trial.

49. It was submitted that the approach by the applicants was a misuse of the function of the Court of Criminal Appeal.

50. It was submitted that the applicants should not be entitled to rely on the decision in Damache v. DPP [2012] IESC 11 during the

appeal. The applicants did not choose to challenge the legislation prior to their trial, knowing that the trial would not be a forum to

challenge the constitutionality of the legislation.

Decision

Joint trial

51. There was a joint trial of the applicants and two other accused. To assist in the running of the long trial, counsel adopted

submissions and legal arguments made by other counsel for the other accused. Thus, the raising of an issue by one counsel was

adopted by other counsel. There was more than one specific reference to the constitutional validity of s. 29 of the Act of 1939 by

counsel. In all the circumstances the Court is satisfied that a decision in relation to the warrants issued pursuant to s. 29 of the Act

of 1939 should apply to all the applicants.

Constitutionality of s. 29 of the Act of 1939

52. The constitutionality of s. 29 of the Act of 1939 (and, by extension, the warrants issued thereunder) was clearly before the court

of trial, even if, as already noted, the Circuit Court Judge had no jurisdiction on this issue. Thus, for example, on the 18th May, 2009,

Mr. F. Kavanagh S.C., counsel for Niall Byrne, submitted to the trial judge:-

“I wish to say and submit to the Court that it is an unconstitutional provision and that it is also in breach of the European

Convention on Human Rights in relation to Article 6 right to a fair trial and the Article 8 provisions concerning privacy. I am

just simply putting it on the record.

[…]

I simply say that the investigating officer is effectively a Judge in his own cause and that it offends against two

principles, guarantee of the inviolability of the dwelling under Article 40.5 of the Constitution and Article 8 of the European

Convention on Human Rights and it also offends against the guarantee of a fair trial enshrined in Article 38 of the

Constitution and that in issuing the warrant he was acting as a Judge in his own cause as head of the investigation. I say

it is a breach of fair procedures because there is no impartial or independent assessment of the need for the warrant in

the first place and I simply put that on the record.”

[Transcript, Day 14, p. 86].

Mr. McGinn SC, counsel for the DPP, submitted that as none of the other co-accused had formally adopted this submission, they are

now precluded from relying on it. While it is technically true to say that the submission was not formally adopted by all the other

counsel, the Court considers that, certainly in the circumstances of this case, it is somewhat unrealistic to suggest that such an

objection was not being raised – and strongly raised – on behalf of all the accused. The applicants had effectively thrown down the

gauntlet of a challenge on this ground to validity of the statute (and, by extension, the warrants) and the trial judge ruled that he

had no jurisdiction in this matter. In the circumstances the Court is satisfied that it is appropriate to consider that the issue of the s.

29 warrants was raised on behalf of all of the applicants.

Does the decision in Damache apply to these applicants?

53. The first legal issue to be addressed is whether the applicants can rely on the decision in Damache v. DPP & Ors [2012] IESC 11

in their appeal.

54. In A v. Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 I.R. 88 at 143, a general principle was described by Murray C.J. as

follows:-

“In a criminal prosecution where the State relies in good faith on a statute in force at the time and the accused does not

seek to impugn the bringing or conduct of the prosecution, on any grounds that may in law be open to him or her,

including the constitutionality of the statute, before the case reaches finality, on appeal or otherwise, then the final

decision in the case must be deemed to be and to remain lawful notwithstanding any subsequent ruling that the statute,

or a provision of it, is unconstitutional. That is the general principle.”

The Court would adopt and apply that principle.

55. The finality of a trial is at its conclusion. The question then arises as to when the trial is concluded. After a trial an accused has a

right of appeal. However, the only issues that may be raised on appeal are those raised and decided upon at the trial. Thus, the

issues to be determined on an appeal are dependent on what transpired in the trial court.

56. Kearns J. stated in The People (DPP) v. Cronin (No. 2) [2006] IESC 9, [2006] 4 I.R. 329 at 346:-

“… the Court of Criminal Appeal is concerned only with a review of the trial and the rulings made therein, and not with

other suggested errors or oversights which may pre-date the trial or have been amenable to remedy in some other

manner”.

The Court agrees with that statement of law and applies it to this case. Thus, the appeal in this case will be a review of the trial,

issues raised, and rulings made therein.

Relevant Factors

57. In determining whether or not an issue may be raised on appeal it is necessary to consider the run of the trial to see if the matter

was raised and whether there was a decision by the court of trial on the issue.

58. Some decisions by an accused during a trial have an important consequence for an appeal. For example, if an accused enters a

plea of guilty at a trial that is a relevant factor. Such a plea is a choice by an accused. Once the plea is made and the conviction

order follows, that is the foundation of fact for any consideration on any appeal.

59. Similarly, once a strategy has been decided upon by an accused at a court of trial, the matter cannot be negated and another

approach taken on an appeal. As Geoghegan J. stated in The People (Director of Public Prosecutions) v. Cronin (No. 2) [2006] IESC 9,

[2006] 4 I.R. 329 at p.339:

“I agree with the view of the Court of Criminal Appeal that the applicant was defended with skill and competence at the

trial. It would be wrong now to set aside the conviction on foot of matters which were deliberately never raised in

requisitions unless this court were of the view that a fundamental injustice had been caused. I do not hold any such

view.”

60. Thus, if a person has taken a step, such as waiving a ground, that may not be opened on an appeal: Corrigan v. Irish Land

Commission [1977] I.R. 317; State (Byrne) v. Frawley [1978] I.R. 326; A. v. Governor of Arbour Hill Prison [2006] 4 I.R. 88.

61. The issuing of the s. 29 warrants was not a rare occurrence. Superintendent Conneely gave evidence that he issued 64 such

warrants over 2 days of investigations into these crimes. However, the only warrants in issue are the three which Superintendent

Conneely issued in relation to the homes of the three applicants in this case.

62. Relevant factors in this case include the following:-

(i) The applicants pleaded not guilty to the charges at the trial;

(ii) The matter of the constitutionality of the warrants issued under s. 29 of the Act of 1939 was raised for the

record during the trial. In the circumstances the Court determines that the issue was raised on behalf of each of

the applicants.

(iii) The issue was raised in the Notices of Appeal.

(iv) The Notice of Appeal of each of the applicants was filed, but awaiting a hearing, when the decision in Damache

v. DPP & Ors [2012] IESC 11, was made. Consequently, the Court is satisfied that the applicants’ cases had not

reached finality.

(v) In contrast to the position in cases such as Byrne and A., none of the applicants had taken any steps which

suggested that they had accepted, or waived objection to, or otherwise acquiesced in the validity of the section or

the warrants issued thereunder.

63. Therefore, the issue of the s. 29 warrants, having been raised at the trial, and in the Notices of Appeal, may be considered on an

appeal. This is so because finality of the case had not been reached. Further, the applicants have not acted so as to exclude the

issue, for example by pleading guilty or by adopting a strategy contrary to maintaining the issue. Consequently, the Court is satisfied

that there is no bar to the applicants raising the issue of the validity of the warrants issued under s. 29 of the Act of 1939 on their

appeal. Therefore, the applicants are entitled to raise the issue on their appeal.

What are the consequences?

64. The applicants being permitted under law to raise the decision of Damache v. DPP & Ors [2012] IESC 11 in their appeal, the next

question is, what are the consequences?

65. In general, a finding of the invalidity of a statute is applied prospectively, and to cases in which the issue was raised but in which

finality had not yet been reached. Finality not having been reached in the applicants’ cases, and the issue having been raised at the

trial, the consequence is that the circumstances of the case may be considered to determine if the law as stated in Damache is

applicable.

66. The facts in these cases are on all fours with those in Damache. In all cases it was the investigating Superintendent of the Garda

Síochána who issued the warrants; in all cases the warrants were addressed to search the dwelling of the applicants; and in all cases

there was no degree of urgency. Thus, these appeals fall within the boundaries of Damache itself.

The Decision in Cunningham

67. These issues were considered at length by this Court in The People (Director of Public Prosecutions) v. Cunningham [2012] IECCA

64. That was also a case where, like the present one, an appeal was pending to this Court at the time of delivery of the judgment in

Damache. In that case, the warrant had been issued in respect of a family home pursuant to s. 29 by a Garda Superintendent who

was leading the investigation into the allegations of money laundering against the accused. As in the present case, the accused had

always denied the charges and had further raised the validity of the warrant (though admittedly not the validity of the section itself)

before the court of trial.

68. This Court accordingly rejected the argument that the Damache point could not be raised on appeal. The critical point which the

Court of Criminal Appeal stressed was that as the criminal proceedings against the accused had not proceeded to finality and as the

accused had taken no steps which suggested that he had acquiesced in or otherwise accepted the validity of the warrant, he was

entitled to rely on Damache.

69. The judgment of the Court of Criminal Appeal in Cunningham was delivered by Hardiman J. who further explained how the

judgment in Damache had illustrated the inherent constitutional frailty of s. 29. If, for example, the Oireachtas could validly authorise

the search of a private dwelling merely because a Garda Superintendent was “satisfied” that there were “reasonable grounds” for

believing that a search of a private dwelling would reveal evidence in relation to the commission or intended commission of a range of

scheduled offences under the Offences Against the State Act, 1939, or the Criminal Law Act 1976, where then might the limits of

that house searching power reside? After all, if the Superintendent in question was leading the investigation (as he invariably was), he

presumably had already directed his subordinates to search the dwelling in question. In those circumstances, adopting the words of

the Court of Criminal Appeal in Cunningham, the entire s. 29 procedure was often little more than a “convenient and decorous

formality” which struck at the essence of the constitutional guarantee.

70. It is, after all, necessary to stress that Article 40.5 provides that the dwelling is “inviolable” and that any exceptions to this rule

must therefore be proportionate, objectively justifiable and, in the words of Henchy J. in King v. Attorney General [1981] I.R. 223 at

257, respect “the fundamental norms of the legal order postulated by the Constitution.” All of this means that, absent genuine

urgency, a search of a private dwelling must not only be authorised by an independent person, but the objective necessity for such a

search must also be capable of being independently demonstrated. This further means that the basis for the search must be

appropriately documented.

71. As the Supreme Court stressed in Damache, and as this Court explained in Cunningham, none of these essential safeguards were

present in section 29. Absent such safeguards, the section failed to protect and vindicate the essence of that core constitutional

guarantee of the inviolability of the dwelling.

72. The Court in Cunningham further demonstrated how a finding of unconstitutionality has general erga omnes (in relation to all)

effects. This means that, in general, such a finding will apply to third parties “certainly so far as current and prospective transactions

are concerned”, thus rejecting the argument that a finding of unconstitutionality somehow operates purely in personam, the benefit

of which is confined to the litigants in question and their privies. Nor was it necessary that the accused should have challenged the

validity of the warrant in separate proceedings.

73. For all of the reasons set out in this judgment and in Cunningham, the Court considers that the applicants are entitled to invoke

the principles articulated in Damache. It follows, therefore, that the convictions cannot stand.

Potential catastrophic consequences

74. In arriving at this conclusion, just as the Court in Cunningham, this Court refrains from offering any view on the circumstances in

which a court would decline to give full (or even partial) retroactive effect to a finding of unconstitutionality if this were to have

catastrophic consequences. In addition to the examples mentioned by the Court of Criminal Appeal in Cunningham, the Court would

further observe that it would be a fallacy to treat the issue of the consequences of a finding of unconstitutionality as if it were some

form of abstract quasi-mathematical syllogism, with the courts looking on helplessly as the retroactive application of a finding of

unconstitutionality worked inexorably to bring about catastrophic consequences for the legal system and ordered political society.

While the first duty of the courts is to secure legal redress for those whose rights have been infringed by unconstitutional action, this

duty is, as Article 40.3.1 itself recognises, tempered by considerations of feasibility and practicability. Any other conclusion would

mean that the “true social order” envisaged by the Preamble to the Constitution could not be attained.

75. Just as in Cunningham, however, arguments along these lines were not advanced. Beyond noting that such arguments could be

advanced in an appropriate case, this Court accordingly refrains from offering any view on such questions, whether in relation to the

present appeals or, more generally, the aftermath of Damache itself.

Conclusions

76. Applying the law stated in Damache to these appeals, it follows therefore, that the applicants in the present case are entitled to

rely on the finding of unconstitutionality. As their proceedings have not proceeded to finality, and as the finding of unconstitutionality

had erga omnes (in relation to all) effect, it follows in turn that the warrants, issued under s. 29 of the Act of 1939, are invalid.

77. Thus the applicants are entitled to succeed on the preliminary issue. This judgment addresses no other issue. The consequence is

that the appeals will be allowed and the Court will order a retrial of each of the applicants.