The fallout for Operation Amethyst: The collapse of the Curtin trial has put the spotlight on the Garda investigation, writes Carol Coulter
At the outset of every major criminal trial evidence is given of the arrest of the accused and the seizure of any evidence, if appropriate.
This can be a hotly-contested area, as the Constitution is very explicit about the right of the citizen to freedom from arbitrary arrest, and the inviolability of his or her residence. The Garda Síochána has learned from a long series of legal challenges of the importance of abiding by the letter of their statutory powers.
Operation Amethyst was a highly co-ordinated operation aimed at the arrest of those engaged in child pornography. It was an operation that required very careful planning as it was desirable that all the residences were raided at approximately the same time. That also required co-ordination of the obtaining of the warrants, given that they had a finite life-span.
From the information available, it is not known when all the warrants were issued. The majority of the cases arising from Operation Amethyst that have come before the courts so far have resulted in guilty pleas, and there have been no challenges to the validity of the warrants, so it is to be assumed that they were issued within seven days of the date the raids took place, May 27th, 2002.
If, like the warrant in this case, they were issued earlier than May 21st, then there are other cases out there that might be brought into question by the invalidity of the search warrants, and other judges may find themselves in the same situation as Judge Carroll Moran.
However, Garda sources last night said that they did not expect a similar problem to arise with other warrants under Operation Amethyst, claiming the warrant sought against Judge Curtin was the first to have been sought by detectives, in May 2002.
Judge Moran had, as he said himself, no alternative but to rule out the evidence taken from Judge Curtin's house on May 27th. The provisions for searching a person's home are very clearly defined in the various Acts of the Oireachtas. There are various Acts which deal with crimes including robbery, drug-dealing, firearms offences and, as in this case, child pornography, which allow for people's homes to be entered, forcibly if necessary, searched, and items seized.
But the Garda are circumscribed in doing so. They are required to obtain a search warrant, and under the Child Trafficking and Pornography Act, this had to be obtained from a District Justice, who had to be satisfied that there was sufficient reason to issue it. That search warrant is limited in its use and duration.
For example, it can only be used to search a specific premises, not others owned by the same person. It only allows a named officer to carry out the search. And, as arose in this case, it expires after a certain time.
The reason for this is obvious. It would not be desirable to have an open-ended search warrant, as this would clearly negate the inviolability of a person's home guaranteed by the Constitution.
There have been numerous instances in the past where the validity of warrants was questioned, and where evidence seized was subsequently ruled out as unconstitutional. A number of cases have reinforced the view that the inviolability of a person's dwelling is a fundamental right, and that evidence obtained while violating it is so tainted that it cannot be used.
This means that investigating officers have to take great care with search warrants. But the law is not a strait-jacket for investigators - if the time allocated is not long enough to execute a warrant, a new one can be sought. It is very unlikely that a judge would refuse a reasonable request.
Other difficulties can arise. The officer named in the warrant might fall ill and be unable to execute it. Again, it is hard to imagine a District Justice or a Peace Commissioner refusing to issue a new warrant.
There are questions, therefore, for the Garda Síochána as to why they did not ensure that all the warrants in Operation Amethyst would withstand scrutiny by the courts, and obtain new ones if they were needed.
It is clear also that the DPP knew about this problem in December 2002, yet proceeded with a prosecution likely to fail because the warrant was defective.