Retrial ordered on money laundering convictions due to unconstitutionality of search warrant.

By: Ciaran Joyce BL, on May 17th, 2012

DPP v Cunningham [2012] IECCA 64 (Court of Criminal Appeal, Hardiman J, 11 May 2012)

Court of Criminal Appeal quashes ten convictions and orders retrial on nine counts of money laundering, on grounds that the search warrant was repugnant to the constitution.

Criminal law - appeal from conviction – money laundering – Northern Bank raid – unconstitutional search warrant – s.29(1) of the Offence Against the State Act, 1939 – Damache v DPP – whether the appellant was entitled to rely on this precedent to invalidate his conviction which predated the Damache decision by some years – search warrant central to case –evidence of the fruit of the invalid warrant – whether applicant retrospectively entitled to the benefit of recent decision – finality of a criminal case – Court of Final Appeal – Whether the result in Damache could have been anticipated – “Burnfoot Module” of Morris Tribunal Report (2008) – Article 40.5 - the “inviolability” of the dwelling – Historical and contemporary comparative aspect – Article 40.4.2 & 34.2 & 34.5.1 of the Constitution – Section 29 of the Courts of Justice Act, 1924 – Courts (Establishment and Constitution) Act, 1961 – whether applicant is bebarred from relying on Damache due to his own conduct – whether appeal is the correct remedy.

Quotation from judgment (courtesy of the Courts Service of Ireland):

“The Court would also recall here that the essence of the constitutional guarantee in Article 40.5 - the “inviolability” of the dwelling - is one with very deep roots in the European constitutional tradition. Article 3 of the short lived republican Constitution of France of 1848 had provided that the residence of every person dwelling in French territory was “inviolable.” This exact phrase is to be found in relation to the protection afforded to the dwelling in Article 15 of the Belgian Constitution, Article 72 of the Danish Constitution and Article 14(1) of the Italian Constitution. Article 115 of the German (Weimar) Constitution of 1919 provided that the dwelling was a “sanctuary and is inviolable”, save that exceptions might “be permitted by authority of law.” Those who might be tempted to doubt the intrinsic importance of the guarantee contained in Article 40.5 would do well to reflect on the ultimate fate of its closest historical counterpart. Article 115 of the Weimar Constitution was suspended “until further notice” by paragraph 1 of the notorious constitution amending decree promulgated in the wake of the Reichstag fire in February 1933. This decree also recited that “warrants for house searches” were thereafter “to be permissible beyond the legal limits otherwise prescribed.” Millions were thereafter to discover the ugly reality of what the suspension of that key constitutional guarantee actually entailed.”

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Stare Decisis Hibernia

Retrial ordered on money laundering convictions due to unconstitutionality of search warrant.

Quotation from judgment (courtesy of the Courts Service of Ireland):

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