The Minister for Justice has asked the Attorney General for "urgent advice" on a recent Supreme Court ruling which may invalidate a large number of search warrants and might result in convictions being overturned or ongoing prosecutions failing.
Senior officials from the Department of Justice have been in touch with Mr Rory Brady with a view to assessing the implications of the apparent loophole. The matter is being treated with urgency within the Department, and the Attorney General is expected to report to Mr McDowell this week. The Government has not ruled out introducing emergency legislation to close the loophole.
However, even if the loophole were closed any changes would not apply retrospectively, according to sources.
The matter involves any search warrant issued to gardaí or other agencies, such as the Office of the Director of Corporate Enforcement, by judges who were not sitting at the time in the District Court districts to which they had been formally assigned.
It arose in a Supreme Court case a fortnight ago. On that occasion a Co Clare man accused of a €150 million VAT fraud challenged the validity of search warrants issued to the Criminal Assets Bureau to search properties owned by him.
Mr Dylan Creaven from Ennis won his case, and documents seized by CAB were returned to him or destroyed. The Supreme Court ruled that the judge who issued the warrants was not sitting in the District Court districts to which he had been temporarily assigned. The court ruled the warrants were invalid and overturned 11 of 12.
It is not known how many other search warrants have been issued in this way. However, the movement of judges between different District Court districts is not unusual.
The Attorney General is assessing the implications of the CAB case ruling for the rest of the criminal justice system. Mr McDowell has said he has referred the matter for "urgent advice" to Mr Brady.
"As soon as I have received and examined that advice," Mr McDowell said, "I will take whatever action I consider necessary, including, if appropriate, the introduction of a legislative proposal to address issues raised by the judgment." He made the remarks in response to queries from Fine Gael's spokesman on justice, Mr Jim O'Keeffe. If Mr McDowell decides to implement legislative changes, he can do so in an emergency piece of legislation which could become law in a short period. He could also amend the Criminal Justice Bill to address the loophole.
Mr Creaven is currently awaiting trial in Britain in relation to an alleged €150 million alleged VAT carousel fraud. The alleged fraud, it is claimed, involved high-value computer components and the movement of those goods in a circle between various companies to generate VAT payments which were not declared to the British authorities. Mr Creaven, a software millionaire, has denied the claims.
The Criminal Assets Bureau has an interim order against him for €22 million he had lodged in a bank. Mr Creaven was arrested in London in November of 2002. After his arrest he voluntarily repatriated €14 million from New York.
