THERE is the need for legislative reform when it comes to the issuance of search warrants, Justice Frank Seepersad said yesterday.
In the absence of such reform, police officers can easily approach a Justice of the Peace with information that may not reach the threshold of the issuance of such a warrant in the first place, but still, it may be issued contrary to law, the judge said.
This was so, he said, because justices of the peace were not required to be legally qualified individuals and, therefore, they may issue search warrants while not even being aware of glaring irregularities and misinformation on the face of the warrant being sought by police.
The judge made the statement while delivering a ruling in favour of the Express against the offices of the Attorney General, Police Commissioner and Supt Wendell Lucas, head of the Financial Investigations Branch (FIB) of the TTPS.
The Express had challenged the execution of two search warrants at Express House by police last March following publication of an investigative story.
In his ruling, the judge said in the absence of legislative reform, and, as the guardian of the Constitution, the court needed to be robust in its defence of democratic principles, and there is an evident need for judicial guidance so as to regulate the manner in which search warrants to be executed upon the media are issued.
These guidelines should be followed by justices of the peace and by police officers, he said.
“The police should adopt an approach which is guided by fundamental principles of fairness and natural justice, and it should be acknowledged that there exists a need to strike a balance between the interest of law enforcement, on the one hand, and the interest of privacy and proprietary protection, on the other,” Seepersad said.
He noted the two warrants before the court were issued pursuant to Section 5(1) of the Indictable Offences (Preliminary Enquiry) Act, which provides for the issue of a warrant upon proof on oath that there is reasonable ground for believing there is in a building anything that will afford evidence as to the commission of an indictable offence.
Further, he said the warrants reflected that the offence being investigated was the indictable offence of “tipping off”.
“However, under the Proceeds of Crime Act, tipping off is not an indictable offence, but a summary offence,” he said.
Approach only magistrates
The judge pointed out that warrants also stated that they were issued for the purpose of gathering evidence relating to an offence “contrary to Section 24 of the Proceeds of Crime Act, as amended”. “No such offence exists by virtue of Section 24 of the Proceeds of Crime Act,” stated the judge.
He went further to state that the referenced section bears no relation to the offence of tipping off, and sets out the procedure to be adopted by the DPP to obtain and modify confiscation orders on account of an increase in the value of an offender’s property.
“Ideally and with the effecting of legislative reform, search warrants which involve the unearthing of source information should be issued by judges of the Supreme Court. Such a course may militate the chilling impact which the search of a media house can have upon the society.
“Parliament may therefore wish to urgently consider the enactment of an amendment to Section 5 of the Indictable Offences (Preliminary Enquiry) Act.
Until such time as the suggested legislative amendments are undertaken, the police should only approach magistrates, if they intend to obtain a search warrant to search a media house,” said the judge.