Regulators and other bodies with the power to search premises should consider identifying the specific offence suspected when applying to court for a search warrant and setting out the specific offence on the face of the warrant. While not strictly required by law, a Court of Appeal judge has said it is "certainly desirable" that search warrants identify the specific offence suspected.
This comment was made in DPP v Morgan, an appeal from a murder conviction. The appellant argued that clothing and footwear seized by the gardaí (the Irish police) during a search of his house were inadmissible as the search warrant used to carry out the search was defective. A District Court judge issued the search warrant on the basis that the gardaí reasonably suspected there was evidence relating to the commission of an 'arrestable offence' at the appellant's house.
The appellant argued that as the search warrant did not identify the specific 'arrestable offence' of which he was suspected, it was invalid. Against this, the Director of Public Prosecutions (DPP) said that reference to the specific arrestable offence was not required under the relevant legislation. Further the DPP said that as the search warrant made specific reference to blood stained clothing, it was clear to the occupants of the house that the search related to an assault in which blood was shed.
In dismissing the appeal, the Court accepted the DPP's argument that the failure to identify the specific arrestable offence suspected did not automatically render the warrant invalid. The judge stated that it is sufficient if the specifics of the offence can be inferred from the information on the warrant. However, he said this was a "sub-optimal situation", as individuals whose constitutional rights may be interfered with by a search of their property should not have to rely on inferences. The judge stated that it was "certainly desirable" that a warrant should identify the specific offence suspected so that the person to whom it relates knows the basis on which it was issued.
THE CONSEQUENCES FOR REGULATORS
Regulators seeking to obtain a search warrant should be in a positon to identify the offence that is suspected to have been committed. You will usually need to outline this in the information (statement) grounding the application for the search warrant. If you are unclear as to the offence that is suspected to have been committed, seek advice from your legal advisors.
If a search warrant has been wrongly executed, or executed in breach of an individual's constitutional rights, evidence obtained on foot of it may not be admissible at trial. This could result in an accused being acquitted.
HOW TO AVOID CHALLENGES TO YOUR WARRANT
The Court in DPP v Morgan acknowledged that great care should be taken when preparing search warrants. Even if not strictly necessary under the relevant legislation, if applying for a search warrant you should consider identifying the relevant offence suspected. This will reduce the potential of challenge to your search warrant.
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.