Search & Warrant
Cases
The State (Batchelor & Co. (Ireland) Ltd.) v District Justice Cathal O. Floinn and Maureen O’Carroll
In The Matter of the Courts of Justice Act, 1924
Supreme Court.
7 July 1955
[1960] 94 I.L.T.R 50
Maguire C.J. Lavery, Kingsmill Moore, O’Daly, Maguire JJ.
April 28, 29, May 2 and July 7, 1955
Haugh J., in delivering judgment said:—I happened to be sitting on Saturday morning when the conditional order was applied for by Mr. FitzGerald. When I heard him and read the affidavits and other evidence relied on, I granted the conditional order.
Now, normally a person or body against whom such an order is made is given ten clear days within which to show cause and normally the same time would have been given in this case except that Mr. FitzGerald asked (and stated the reasons), that the time should be abridged until yesterday (Tuesday). The Court has power to lessen the ten days. I did not accede to the request for Tuesday, but fixed to-day for the hearing, if cause shown had been made. I would not shorten the period, particularly during the legal vacation, unless it seemed to me to be a matter of vital necessity. On the amount of information supplied to me on Saturday last I came to the conclusion that this was a case in which the time should be shortened—that there could not be much, and, in fact, there had not been any, dispute about the facts of the seizure of the goods and that it was a case in which it was just and proper that it should be heard within the legal vacation and within the shortest possible time. I came to that conclusion because it was stated, and it is now established, that the entire stock-in-trade of the goods of this Company, in so far as they consist of dried packet peas, had been, without notice of any sort to the Company, taken away from their premises and Mr. FitzGerald pointed out that they had to deal with their traders and that they were left without any packet peas (some 23,500 packets were taken) and it seemed to me to be a case, in common sense and fair play, where I should personally inconvenience myself and dispose of the matter at once.
Cause has been shown. I am sorry to say that I have not changed my opinion. I tried anxiously to satisfy myself (in fact and judicially), as to what necessity whatever existed for such—I can only use the word “confiscation”. I asked Mr. Hooper was it for the purpose of bringing them all before the District Justice and having them all opened and examined before him or was it for the purpose of having them destroyed as unfit for human consumption.
I have had a long experience at the Bar, as a Prosecutor, as Attorney General, and as Judge, and I am satisfied that, if this was a prosecution conducted through State channels, the order would not have been made.
Now that the arguments have been finished, I do not yet understand the necessity for coming in upon this Company without any notice and of emptying their shelves of goods in regard to which (they say) no complaint has ever been made. I just do not understand it. I fail to understand why the property of a well-established, reputable Company has been taken pending the hearing of a complaint and a decision by the District Justice. I must bear in mind (as I do), that the question of whether an offence has, or offences have, been committed is entirely a matter for the District Justice to determine, but whether the seizure was legal is a matter that I must determine.
Mr. FitzGerald has said that this prosecution is based on s. 2, sub-s. 2 (1) (d) of the Merchandise Marks Act, 1887, which runs as follows:—“Every person who … (d) applies any false trade description to goods … shall subject to the provisions of this Act, and unless he proves that he acted without intent to defraud, be guilty of an offence against this Act”. Sub-sect. 3 of the aforementioned section provides (so far as material) that every person guilty of an offence against the Act shall be liable:—
(i) on conviction on indictment, to imprisonment, with or without hard labour, for a term not exceeding two years, or to fine or to both imprisonment and fine; and
(ii) on summary conviction to imprisonment, with or without hard labour, for a term not exceeding four months, or to a fine not exceeding twenty pounds. …
(iii) in any case to forfeit to Her Majesty (now to be construed and to have reference to the State by virtue of s. 29, sub-s. 2 of the Merchandise Marks Act, 1931), every chattel, article, instrument or thing by *53 means of or in relation to which the offence has been committed.”
The expression “trade description” is defined in s. 3, sub-s 1, of the Act as meaning, for the purposes of the Act “any description, statement, or other indication direct or indirect.
(a) as to the number, quantity, measure, gauge, or weight of any goods or …
(d) as to the material of which any goods are composed … and the use of any figure, word or mark which according to the custom of the trade, is commonly taken to be an indication of any of the above matters, shall be deemed to be a trade description within the meaning of this Act.”
In the same section, the expression “false trade description” is defined as meaning “a trade description which is false in a material respect as regards the goods to which it is applied”.
It should be noted here that the onus of proof, in a prosecution under this Act, shifts to the accused only where it has been proved by the prosecution that there was, in fact, a false trade description of the goods; then, and then only, it becomes incumbent on the accused to show that such false trade description was not made with intent to defraud. The question of forfeiture of goods can first arise only when the falsity of their trade description has been proved and the District Justice or jury, as the case may be, has negatived the absence of fraudulent intent. I cannot be judicially satisfied that these goods are properly forfeited where it has not been made clear to me, as it could not have been here, that the District Justice here has been satisfied, both that the goods were sold under what was a false trade description in fact and that the defence have failed to discharge their burden of proving that such sale under a false trade description was not made with fraudulent intent This is not a mere technical legal matter to which judges pay lip service. We must assume people are not guilty until the contrary has been proved. Mr. Hooper has made certain allegations against the Company, but subsequently admitted that they were a firm of the highest repute and did not suggest that their other products were of anything but the highest quality. This is a matter to which I must have regard when considering the question of making the conditional order absolute.
This search warrant was made without the knowledge of the Company and without notice to them. Mr. FitzGerald submitted that, in the absence of a specific statutory provision either expressed or implied, providing that property might be seized, altered, destroyed, transferred or disposed of without notice being given to the owner of the property, the District Justice had not jurisdiction to order such seizure, destruction, alteration, transfer or disposal and that no statutory provision existed whereby the District Justice was given jurisdiction to issue a search warrant in this case. He further submitted that the warrant itself was bad as being addressed to the Superintendent and his assistants instead of being addressed to a particular officer as required by s. 54 of the Dublin Police Act, 1842.
It is with the first and major ground of Mr. FitzGerald’s argument that I am concerned. Is the decision of the District Justice to issue a search warrant against these goods of Messrs. Batchelor & Co. (Ireland) Ltd., without notice to them, in accordance with the law as it has always been administered in these Courts?
The law is, I think, correctly summarised by the late Sir James O’Connor in his Justice of the Peace (1st ed., 1911, vol. 1), at p. 51:—“Where a statute gives power to Justices to order the forfeiture or destruction of property this should only be done on notice, by summons, to the party interested (Ex-parte Francis [1903] 1 K. B. 275; Gill v. Bright (1871) 41 L. J. M. C. 22, the only exceptions to the rule, such as the destruction of unsound food (White v. Redfern (1879) 5 Q. B. D. 15; Thomas v. Van Os [1900] 2 Q. B. D. 448), being based on the paramount necessity in the public interest of an immediate order.”
Quinn v. Pratt [1908] 2 I. R. 69 was an action brought against two Justices for damages arising from the making of an order in excess of jurisdiction under the Police Property Act, 1897, whereby it was ordered that certain barley alleged by the plaintiff to be his property should be delivered to J. F. B., such property having come into the possession of the police by virtue of a search warrant granted on an information sworn by J. F. B., such search warrant having been granted without notice having been given to the plaintiff. Palles C.B., in delivering the judgment of the King’s Bench Division in Ireland—by which judgment was given in favour of the plaintiff—deals with the failure of the Justices to give notice of the search warrant to the plaintiff as follows at pp. 77 and 78:—
“In this particular case not only was the adjudic *54 ation made in the absence of the party, but he was not even summoned to the proceedings. It has been argued, and as I think rightly, that, by reason of the plaintiff not having been present or summoned, the matter was one in which, quoad him the magistrates had no jurisdiction to proceed at all. …
“The question in White v. Redfern (1879) 5 Q. B. D. 15, arose on a power under the Public Health Act, 1876, to seize meat intended for the food of man which was diseased or unsound, and to carry it before a Justice, who might order it to be destroyed. Field J., held that such order might be made, although no notice had been served on the owner of the meat. The grounds of his decision are in these words:—‘Then is he bound to give notice to the owner before proceeding to apply to a Justice to condemn the article so seized? It is contended that he is bound to give such notice, by which I suppose is meant that he must take out a summons, as is usual in the case of most proceedings before magistrates. Ordinarily such a proceeding could be necessary. The Legislature generally cannot be considered to have intended that a man’s property may be destroyed without giving him an opportunity of being heard, but here the paramount object would appear to be the speedy destruction of a noisome and unwholesome thing There is nothing in the words of sect. 117, which gives power to the magistrates to condemn the article seized, to lead to the conclusion that he is to hear anybody. All he has to do apparently is to inspect the article, and if he is satisfied that it is unsound or unwholesome, he is to condemn the same and order it to be destroyed, or so disposed of as to prevent its being used for food. The primary object is the prevention of an evil which in the nature of things presses for an immediate remedy.’
“Thus the basis of the judgment there was that the paramount object of the statute in question was the speedy destruction of a noisome and unwholesome thing.”
The present case is plainly distinguishable from that provided for in White v. Redfern (1879) 5 Q. B. D. 15. It cannot be said that in s. 12 of the Merchandise Marks Act, 1887, the section by virtue of which this search warrant was granted, there was any intention that the party against whom, a search warrant should be ordered should not be heard, in view of the fact that this statute relates, not to the sale of unwholesome foodstuffs, but (in so far as it relates to the sale of food) to the alleged substitution for a foodstuff answering a particular trade description of a similar foodstuff which is of inferior quality, but, which nevertheless, is normally no whit less wholesome than the foodstuff for which it has allegedly been substituted. There was no suggestion whatever that the peas the subject-matter of this search warrant were, or could be, in any way deleterious to health.
I must have regard to the statement of Mr. Loughrey’s affidavit that, if the Company had received notice of this application to seize their entire stock, they would have resisted it before the District Justice—possibly with success. It is because of the failure to give notice that the entire stock of the premises has been taken away from the Company.
This is the kind of case where the procedure regulating the search of premises and seizure of property is not clearly laid down and in such a case, the principles applicable are well set out by Lord Alverstone C.J., in his judgment in Ex parte Francis [1903] 1 K. B. 275, where he says (at p. 279):—“Now, it has for many years been a well-established principle of law that legal proceedings affecting the rights of persons as owners of property must not be taken unless notice has been given to those persons, and, as was pointed out by Field J., in White v. Redfern (1879) 5 Q. B. D. 15, in the case of proceedings under the Summary Jurisdiction Acts, a summons is the method by which notice is given. A good example of the application of this principle is to be found in Gill v. Bright 41 L. J. M. C. 22. In that case proceedings were taken under an Act which gave powers to search premises where it was suspected that excisable liquors were being unlawfully sold, and the Act provided that any liquor so found might be seized and sold. No special procedure was provided, and Lush J., in dealing with the question whether an order for sale could be made ex parte, pointed out that ‘it is quite clear that before the property of the appellant was forfeited the Justices should have given him an opportunity of being heard. Common sense and justice require that this should be so. … Before a man’s property can be forfeited, and he be deprived of it, an opportunity must be given him to explain the matter or to shew that the seizure was improper.”
I adopt with respect the statement of the law made by Lord Alverstone C.J. In the *55 absence of any explanation of why the Company should be deprived of its property before conviction—if conviction there is to be—I hold that they are entitled to their property, and I have no hesitation in making the order absolute as against the complainant.
From this judgment the complainant appealed to the Supreme Court.
The grounds of the appeal were as follows:
“1, that the said warrant was good on its face.
“2, that none of the grounds stated in the conditional order for quashing the said warrant were good grounds in law for so doing.
“3, that the issuing of the said warrant was a matter for the discretion of the learned District Justice in a case within his jurisdiction and the exercise of such discretion is not reviewable on certiorari proceedings.”
J. Hooper, S.C. (with him S. Collins ), for the appellant:—
It is submitted that the warrant in this case is not reviewable on certiorari as it was good on its face, and furthermore it is not a final order. The issue of certiorari is an exercise of a judicial function, and is not merely ministerial The State (Cronin) v. Circuit Court Judge of the Western Circuit [1937] I. R. 34; The Queen v. Justices of Roscommon [1894] 2 I. R. 158; R. (Hastings) v. Justices of Co. Galway 43 I. L. T. R. 185; Courts of Justice Acts, 1924, ss. 67, 77 (b), 78, 79, 90, 91; Court Officers Act, 1926, ss. 46 and 48.
He also cited, Merchandise Marks Act, 1887 (50 & 51 Vict., c. 28), ss. 2, 3, 5, 9 and 12; Gill v. Bright 41 L. J. M. C. 22; White v. Redfern (1879) 5 Q. B. D. 15; Ex parte Francis [1903] 1 K. B. 275; Quinn v. Pratt [1908] 2 I. R. 69.
W. O’B. FitzGerald, S.C., and J. Kenny (with them A. O’Keeffe, S.C. ) for the respondents:—
It is submitted that the ordinary law of the common law is that no justice has jurisdiction to issue a search warrant on an ex parte application. In this case it is submitted that the first requirement of s. 12 of the Merchandise Marks Act, 1887, has not been complied with as there was no complaint. The second requirement, namely, the issue of a summons by a Justice, was not complied with as the summonses in the present case are signed by a clerk of the District Court. The third requisite, before a warrant can issue under this section, is that there must be a sworn information. The alleged information in this case is not, in our submission, a sworn information at all. It is a disregard of all principles of justice to issue a warrant upon such a document. It is from start to finish an offence against every principle of law relating to the admissibility of hearsay evidence.
The appellant contends that a warrant is not subject to certiorari because it is not a final order. Blakeney’s Case [1894] 2 I. R. 158 and Hasting’s Case 43 I. L. T. R. 185 are cited as authorities for that proposition, but those cases are cases of a return for trial and, accordingly, do not cover the present case. The warrant in this case is final; it is a judicial act; it is unconditional. The finality is that it takes the person’s goods, removes them out of his possession, and keeps them so until the determination of the criminal charge and there is no appeal from that warrant. Furthermore, the summonses in this case seek a trial by jury and a return for trial so that the defendants in those proceedings would be deprived of all their goods for perhaps many months.
It is submitted that an essential condition precedent to jurisdiction to issue a summons under s. 12 of the Merchandise Marks Act, 1887, is that a summons should have been issued by a Justice. There is no reason to suggest that s. 12 has been amended by the District Court Rules Section 12 requires that the summons should have been issued by a Justice No amendment is in fact called for because the requirement of the issue of a summons by a Justice can still be complied with under the Rules of the District Court.
It is contended on behalf of the appellant that it was decided in Blakeney’s Case [1894] 2 I. R. 158 that certiorari only lies in the case of a final order But that, it is submitted, is not correct, as it clear from that authority that it lies in other cases. [They also cited: White v. Redfern (1879) 5 Q. B. D. 15; Ex parte Francis [1903] 1 K. B. 275, Quinn v. Pratt [1908] 2 I. R. 69; R. v. Thompson [1909] 2 K. B. 614; R. v. Montgomery 26 T. L. R. 225; R. v. Baines [1909] 1 K. B. 258; District Court Rules, 1948, rules 30 and 31; Merchandise Marks Act, 1931, s. 24; Halsbury Vol. 10, p. 192, para. 37r; Halsbury (Hailsham edition), Vol 9, p. 180.]
J. Hooper, S.C., in reply cited The State (Taylor) v. Circuit Court Judge of Wicklow and Others [1951] I. R. 311. *56
Cur. adv. vult.
Maguire C.J.:
I agree with the judgment which Mr. Justice O’Daly is about to read and I have nothing to add.
Lavery J.:
I also agree.
Kingsmill Moore J.:
I also agree.
O’Daly J., in the course of his judgment said:—Two questions arise for determination on this appeal, first, whether a warrant issued by a District Justice under s. 12 of the Merchandise Marks Act, 1887, is subject to certiorari and, if so, secondly, whether the warrant issued in this instance by District Justice O’Floinn should be quashed. Mr. Justice Haugh, in the High Court, quashed the warrant, and he did so on the ground that it had been issued without notice to and in the absence of Batchelor & Company (Ireland) Ltd., whose goods had been seized under the warrant. This is an appeal from Mr. Justice Haugh’s order. The appellant is Mrs. Maureen O’Carroll, on whose application the warrant was issued by the District Justice.
Sect. 12, sub-s. 2, of the Merchandise Marks Act, 1887, is in these terms:—
“(1) Where, upon information of an offence against this Act, a Justice has issued either a summons requiring the defendant charged by such information to appear to answer to the same, or a warrant for the arrest of such defendant, and either the said Justice on or after issuing the summons or warrant, or any other Justice, is satisfied by information on oath that there is reasonable cause to suspect that any goods or things by means of or in relation to which such offence has been committed are in any house or premises of the defendant or otherwise in his possession or under his control in any place, such Justice may issue a warrant under his hand by virtue of which it shall be lawful for any constable named or referred to in the warrant, to enter such house, premises, or place at any reasonable time by day, and to search there for and seize and take away those goods or things; and any goods or things seized under such warrant shall be brought before a court of summary jurisdiction for the purpose of its being determined whether the same are or are not liable to forfeiture under this Act.
“(2) If the owner of any goods or things which, if the owner thereof had been convicted, would be liable to forfeiture under this Act, is unknown or cannot be found, an information or complaint may be laid for the purpose only of enforcing such forfeiture, and a court of summary jurisdiction may cause notice to be advertised stating that, unless cause is shown to the contrary at the time and place named in the notice, such goods or things will be forfeited, and at such time and place the court, unless the owner or any person on his behalf, or other person interested in the goods or things, shows cause to the contrary, may order such goods or things or any of them to be forfeited.
“(3) Any goods or things forfeited under this section, or under any other provision of this Act, may be destroyed or otherwise disposed of, in such manner as the court by which the same are forfeited may direct, and the court may, out of any proceeds which may be realised by the disposition of such goods (all trade marks and trade descriptions being first obliterated) award to any innocent party any loss he may have innocently sustained in dealing with such goods.”
It is an offence against the Act to have in your possession for sale goods to which a false trade description is applied, unless you can prove, as the Act specifies, that you acted innocently: s. 2, sub-s. 2. A “trade description” is defined as meaning, among other things, a description, statement or other indication, direct or indirect, as to the material of which any goods are composed; and a “false trade description” means a trade description which is false in a material respect as regards the goods to which it is applied: s. 3, sub-s. 1. Offences against the Act may be prosecuted summarily or on indictment; and the Act declares that any person guilty of an offence against the Act shall, in addition to other penalties, be liable to forfeit to the State every chattel by means of which or in relation to which the offence has been committed: s. 2, sub-s. 3, as adapted by s. 29, sub-s. 2, of the Merchandise Marks Act, 1931 (No. 48 of 1931).
On the 20th September, 1954, a District Court summons was issued in which the appellant, Mrs. O’Carroll, as complainant charged that Batchelor & Company (Ireland) Ltd., on the 18th September, 1954, at Cabra West in the City of Dublin had in their possession for sale goods, namely, a mixture of marrowfat and blue peas to which a false trade description, namely, “specially selected marrowfats”, meaning marrowfat peas, had been applied contrary to the statute in that case made and provided. This summons indicated that *57 an order for return for trial on indictment would be sought against the Company. On the following day, the 21st September, 1954, on foot of an information sworn that day, Mrs. O’Carroll applied ex parte to District Justice Cathal O’Floinn for a warrant under s. 12 of the Act of 1887. The District Justice granted the warrant sought. Later on the same day execution was effected by the seizure at Messrs Batchelors’ factory premises at Cabra West of 653 cases of package peas valued at £1,306. Four days later the Company moved for an order of certiorari to quash the warrant. Mr. Justice Haugh granted a conditional order which, after cause shown, he made absolute on the 29th September, 1954. The goods the subject of the seizure were thereupon returned to the Company. These have, however, since been dispersed by the Company to their customers. The rehabilitation of the warrant, it is acknowledged by the appellant, cannot now serve any practical purpose. But having been ordered to pay the costs of the certiorari proceedings the appellant challenges the entire of the order of the High Court with the object, first, of ridding herself of the liability for the Company’s costs, and, secondly, of having the Company ordered to pay her costs.
Counsel for the appellant made two main submission, viz. (i) that a warrant issued under s. 12 of the Act of 1887 is not subject to certiorari and, in any event, (ii) that neither statute nor common law requires that a defendant should be given notice of the application for the warrant.
It was conceded by the appellant’s counsel that a District Justice who issues a warrant under s. 12 is discharging a judicial function, but the appellant’s counsel contended notwithstanding this that a warrant so issued was not reviewable on certiorari because, as it was put, the warrant is not a final order. In support of the proposition that certiorari does not lie in the case of a judicial order which is not final, counsel cited R. (Blakeney) v. Justices of Roscommon [1894] 2 I. R. 158.
In Blakeney’s Case [1894] 2 I. R. 158 a divisional Court, consisting of Sir Peter O’Brien C.J., and O’Brien, Holmes and Madden JJ., refused an order to bring up by certiorari the decision of justices of the peace committing a defendant for trial under the Petty Sessions (Ireland) Act, 1851. O’Brien J., in his judgment, at p. 174, said: “… the general power of superintendence belonging to the Queen’s Bench over inferior tribunals was never considered to extend to any but tribunals in the exercise of a definite, exclusive, and final judgment, and that the limitation of the principle, which excludes the present case, is to be found in the very terms of the proposition itself—magistrates returning informations are not tribunals in the sense of the rule.”
Blakeney was charged under 24 & 25 Vict., c. 97, s. 2, by Thomas Barrett with “unlawfully and maliciously setting fire to a dwelling-house, one Anne Barrett being at the time therein.” The defendant was a landlord’s agent. Barrett and his family were evicted from their dwellinghouse, and immediately after the eviction the dwelling-house was destroyed at the direction of the defendant. The same evening, Barrett made a temporary shelter out of the remains of the thatch under which he and his wife and children, of whom Anne Barrett was one, spent the night. On the next day the defendant came to the place and set fire to this temporary shelter. It was deposed that the child, Anne Barrett, was within this temporary shelter at the time it was set on fire though it was not alleged that the defendant was aware of this. Evidence was given on behalf of the defendant that the place was searched by the defendant before setting fire to the thateh, and that it was impossible that any one could have been under the thatch at the time. The only order made in the Petty Sessions Book by the justices was as follows: “Depositions returned to the next Assizes for the County of Roscommon”. The argument advanced on behalf of the defendant on a motion to make absolute a conditional order of certiorari was that the evidence showed that the structure set on fire was not a dwelling-house at all, and in any case, as the Justices did not decide that the structure was a dwellinghouse, they could not decide that a prima facie case was shown.
The Lord Chief Justice, at p. 169, said he preferred to rest his decision on the ground that there was an absolute discretion vested by statute—the Petty Sessions Act—in the magistrates to determine whether the evidence before them was sufficient to put the accused person on his trial, and that once they had exercised that discretion, the Court could not interfere or review it by writ of certiorari. The Lord Chief Justice also adverted to three other grounds for declining the writ, viz., (i) lack of precedent; (ii) that the question of the existence of a dwellinghouse was not a mere preliminary enquiry and collateral to the *58 merits but was of the very definition and essence of the crime and, accordingly, on the authority of The Queen v. John Sullivan 22 L. R. Ir. 504, that the evidence was not examinable; (iii) that the fact that the Legislature did not provide for recording in some shape the decision of the Justices showed that it was a matter within their discretion not removable by certiorari, there being no legal entry made pursuant to statute upon which certiorari was to attach and remove.
Holmes J. (as he then was), began by saying that he considered he was bound by the judgment of the Division in The Queen v. John Sullivan 22 L. R. Ir. 504. He added that he was of opinion, from the language by which the duty of Justices was declared and also from the fact that no provision was made for embodying in any record the conclusion arrived at, that it was made evident that the Legislature intended to give the Justices absolute discretion. The fourth member of the Court, Madden J., said that in his opinion the magistrates in returning the accused for trial acted within their jurisdiction in a matter committed by statute to their determination and that certiorari existed for the purpose of restraining inferior tribunals within the limits of their jurisdiction and not for the purpose of correcting any errors into which they might fall while acting within those limits.
From this examination of the judgments, it will be clear the decision of the Court in Blakeney’s Case [1894] 2 I. R. 158 went on grounds other than that which commended itself to O’Brien J.
A warrant issued under the Act of 1887, as s. 12, sub-s. 1, indicates, authorises entry, search and seizure. But the seizure does not itself effect a forfeiture; it is for the purpose of having it determined by a court of summary jurisdiction whether the chattels seized are or are not liable to forfeiture under the Act. The warrant, therefore, appellant’s counsel argue, determines nothing; it is, they say, only auxiliary to proceedings under the Act and forfeiture can arise only if there is a conviction for an offence under the Act.
The respondents’ main answer to this argument is that while it is true that the warrant is in a sense interlocutory in that it is a step in the proceedings, it is none the less a final order. The warrant authorises entry, search, and seizure, and while an acquittal will restore the goods, nothing will undo the interference which a defendant suffers in his privacy and property in the entry and search and in the seizure and withholding of his goods pending the Court’s judgment upon them. The respondents’ counsel have pointed to two English cases in which warrants of arrest were set aside on certiorariR. v. Thompson [1909] 2 K. B. 614 and R. v. Montgomery 26 T. L. R. 225 Both these cases arose out of prosecutions under the Motor Car Act, 1903, for exceeding the speed limit.
In Thompson’s Case [1909] 2 K. B. 614 the defendant did not attend in Court at the hearing of the summons, but he was represented by counsel. The Justices decided to convict. The Motor Car Act authorised greater penalties for offences subsequent to a first offence and provided on a third conviction for an endorsement of the licence, its suspension and disqualification from obtaining a further licence. The prosecuting solicitor told the Court that he was in a position to prove three previous convictions and had witnesses in Court to identify the defendant as the person so convicted had he been in Court. Defendant’s counsel refused to give an undertaking that the defendant would attend Court for that purpose, and the Justices thereupon issued a warrant for his arrest. The warrant was in a form scheduled to the Summary Jurisdiction Rules, 1886, and alleged that the defendant was duly served with the summons, but did not appear. Lord Alverstone C.J., held that there was no justification for the issue of a warrant for the purpose of enabling the prosecution to prove that which they suggested they could not prove without the presence of the defendant. Jelf J., said that he could find no power to serve a defendant with process in the nature of a subpoena duces tecum to bring his body into Court for the purpose of inspection A. T. Lawrence J., said the issue of a warrant was judicial and must be done for some legitimate purpose and that he did not think such a purpose existed in that case.
Montgomery’s Case 26 T. L. R. 225 was also a case in which the defendant did not attend in Court at the hearing of the summons, but was represented by a solicitor who on his behalf pleaded guilty and also admitted a previous conviction. The prosecutor intimated that he required the defendant’s personal appearance, and thereupon the Justices granted a warrant. It was held that under the circumstances a warrant ought not to have issued and the warrant was quashed. *59
Neither Thompson’s Case [1909] 2 K. B. 614 nor Montgomery’s Case 26 T. L. R. 225, as I see them, is analogous to the present case, and they do not, I think, advance the respondents’ main answer to the appellant’s submission on this branch of the argument. But that answer is in my opinion an answer of great force. The appellant’s submission in short amounts to this—that warrants may be issued under s. 12 without a right in the superior Courts to exercise any effective check as to whether they are being issued in the cases and manner authorised by statute, that is to say, that without such check premises and homes may be entered, searches made and goods seized (albeit provisionally). Reduced to these blunt terms the submission immediately shocks one’s sense of justice; but it does more, it throws into relief that a warrant under s. 12 trenches upon rights of the citizen which the law guards jealously. The section, while it empowers a justice to authorise interference with these rights, does so only after a judicial consideration of certain evidence. It, therefore, seems to me that the warrant emanating from an inferior tribunal is well within the category of orders which it has for long been established are reviewable on certiorari. The appellant’s first submission accordingly must, in my opinion, be rejected.
The appellant’s second submission gives challenge to the ground upon which the conditional order was made absolute in the High Court. It was argued there on behalf of the respondent company that it was a common law prerequisite in a case of this kind that a defendant should have notice of the application to the Justice for the warrant, and it was submitted that the law on this matter was accurately summarised in the following passage in O’Connor’s Justice of the Peace (1st ed., 1911, Vol. 1 at p. 51): “Where a statute gives power to Justices to order the forfeiture or destruction of property, this should only be done on notice, by summons, to the party interested (Ex parte Francis [1903] 1 K. B. 275; Gill v. Bright (1871) 41 L. J. M. C. 22), the only exceptions to the rule, such as the destruction of unsound food (White v. Redfern (1879) 5 Q. B. D. 15; Thomas v. Van Os [1900] 2 Q. B. 448), being based on the paramount necessity in the public interest of an immediate order.” (See this passage as recast by O’Connor in his second edition, vol. 1, at p. 132).
Mr. Justice Haugh in his judgment adopted this passage as a correct statement of the law. The respondent company have also relied upon the passage in this Court and upon the cases referred to in it.
Appellant’s counsel make no criticism of the passage cited, but they point out, and in my opinion correctly, that the passage relates to orders for forfeiture or destruction of goods. The warrant under s. 12, on the other hand, is not an order for forfeiture or destruction of goods; it is no more than an order for seizure of goods for the purpose, as s. 12 says, of its being determined whether the same are or are not liable to forfeiture. It is an order of a wholly different character. It is a warrant issued in existing proceedings and an order of forfeiture can follow only if there is a conviction for an offence under the Act and only as part of the penalty proper to be imposed for such offence. There is no question of the defendant not having notice of any order for forfeiture; he is at that stage before the Court on summons or warrant of arrest.
It will suffice to refer to the first of the cases cited in the passage from O’Connor’s Justice of the Peace, Ex parte Francis [1903] 1 K. B. 275. What was in question in Ex parte Francis [1903] 1 K. B. 275 was whether Justices were entitled under the provisions of the Musical (Summary Proceedings) Copyright Act, 1902, without notice to the owner, to order the forfeiture of copies of pirated music seized under the Act. No question arose of notice to the owners of intention to seize the copies of the pirated music for the very good reason that the Act authorised the seizure of such copies instanter, without warrant.
A parallel with Ex parte Francis [1903] 1 K. B. 275 would arise in this case at the time when the Court is about to convict and forfeit the seized goods; but, as has already been pointed out, that can happen only in the criminal proceeding of which the defendant necessarily has full notice.
It may be added that an examination of the terms of s. 12, sub-s. 1, of the Act of 1887 in itself suffices to demonstrate that it is not required that a defendant should have notice of the application to the Justice for the warrant. The sub-section says the Justice may issue the warrant on, or after, issuing a summons in respect of an offence under the Act. If he may issue the warrant on issuing the summons, then both may issue together. A summons issues ex parte. It is equally clear, I think, that *60 the issue of the warrant may also be ex parte. Indeed, if notice of the issue of the warrant were required, it is not easy to see what useful purpose the warrant would serve; the defendant if guilty of an offence would be warned to remove or conceal the forfeitable goods.
The appellant’s second submission therefore succeeds; the warrant should not, as the High Court held, have been quashed because it issued ex parte. But that is not enough for the allowing of this appeal. In the High Court the validity of the warrant was questioned on several other grounds, and the respondents, as they were entitled to do, have called in aid those grounds on this appeal for the purpose of sustaining the order quashing the warrant. I now turn to an examination of those grounds.
The first of these additional grounds concerns the summons which is required to precede, or at least be contemporaneous with, the issue of the warrant. Sect. 12 speaks of a Justice having issued a summons. The summons issued against the respondent company was not issued by a District Justice, but by the Chief Clerk of the Dublin Metropolitan District Court. The respondents do not question the right of a District Court clerk to issue a valid summons in respect of an offence under the Act of 1887. but they submit that it is only where the issuing authority of the summons is a Justice that s. 12 authorises the issue of a search warrant.
The “justice” of the Act of 1887 is no longer with us, and we have therefore to enquire who now exercises the powers of such justice.
Sect. 49 of the Dublin Police Act, 1842, vested in a divisional justice the power to issue a summons in respect of a summary offence committed in the metropolitan area. In the rest of Ireland the power to issue a summons was exercised by a Justice of the Peace: s. 11. sub-s. 2, of the Petty Sessions (Ireland) Act, 1851; s. 5 moreover provided expressly that the petty sessions clerk was not to have power to issue a summons. In 1924, when under the Courts of Justice Act, the District Court was constituted (s. 67), there was transferred to the Court, qua Court, all the jurisdiction formerly vested in a justice or justices sitting at petty sessions and all the jurisdiction of a divisional justice of the police district of the Dublin metropolis. The Act also provided, by s. 91, that rules of Court might be made for the practice and procedure of the Court and for the adaptation or modification of any statute that might be necessary for any of the purposes of the section. In 1926, the Court Officers Act established the office of district court clerk (s. 46) and s. 48, sub-s. 1, provided that every district court clerk should have and exercise all the powers and perform all the duties to be conferred or imposed on him by statute or rule of Court. The provision of the current rules, the District Court Rules, 1948 (Stat. Rules & Ors., 1948, No. 43) is that in the case of an offence, summary or indictable, committed within the Court area, the district court clerk for the area, equally with the Justice, may issue a summons in respect of that offence.
The respondent’s counsel, taking up the words of s. 91 of the Courts of Justice Act, 1924, have submitted that any adaptation of s. 12 of the Act of 1887, arising by virtue of s. 91, can only be such as is necessary for the purposes of s. 91; and that the purposes of s. 91 do not require that a power formerly exercised by a justice should now be exercised by a court clerk. I do not deny some force to this argument; but the appellant’s counsel have pointed to a transfer to the district court clerk of the summons-issuing powers of a pre-Treaty Justice which is independent of any adaptation effected by virtue of s. 91 of the Act of 1924, viz, Court Officers Act, 1926. I am therefore of opinion that a summons now issued by a district court clerk does not differ from the summons issued by the Justice spoken of in s. 12 of the Merchandise Marks Act, 1887. Accordingly, I reject the first of the respondent company’s additional grounds of challenge to the validity of the warrant.
The next of the respondents’ grounds of objection to the validity of the warrant is that the warrant fails to recite that the summons issued “upon information of an offence”. The warrant recited the issue of a summons requiring the defendants to answer a charge of an offence against the Merchandise Marks Act, 1887. In my opinion, the absence of a recital that the summons issued “upon information of an offence” does not affect the validity of the warrant. No summons could in 1887, or can now, issue without an information of an offence. The purpose of the opening words of s. 12, sub-s. 1, is clear: it is to ensure that the application for a search warrant shall be made in the case only of an existing criminal proceeding. A charge must be pending in the Courts. That is the only *61 matter preliminary to the exercise of the jurisdiction to issue the warrant, apart from the necessity to ground such application on a sworn information. Recital of the issue of a summon, in my opinion, adequately puts on record that such preliminary to jurisdiction has been complied with.
A third ground of objection to the validity of the warrant taken by the respondents is that the warrant does not disclose the offence charged and that it was essential for the proper execution of the warrant that the Garda officer should have known the date of the alleged offence.
The warrant follows the Statute; it recites the issue of a summons requiring the defendant to answer a charge of an offence under the Act of 1887. The warrant, moreover, purports to identify the offending goods and directs their seizure. It seems to me that for the purpose of executing the warrant, the executing officer is not concerned to know the date of the offence alleged. Whatever the date of the offence, his only duty is to seize the goods specified in the warrant as offending goods and to bring those goods before the Court to be dealt with as the Court orders. The warrant lacks nothing of certainty in respect of essentials. The validity of the warrant is, in my opinion, unaffected by the absence of a recital of the specific offence which it is alleged has been committed against the Act.
The respondents’ final ground of objection to the validity of the warrant is that the information sworn in support of the application for the search warrant did not contain evidence on which the Justice, in the words of s. 12, sub-s. 1, of the Act, could have been satisfied that there was reasonable cause to suspect that there were on the respondents’ premises, goods in relation to which the offences had been committed. This objection cannot prevail.
It is well settled law that the sufficiency of the evidence to warrant a determination made within jurisdiction is not a matter which is examinable on certiorari: it is enough to refer to R. (Martin) v. Mahony [1910] 2 I. R. 695 which, it will be recalled, approved of the reasoning in The Queen v. John Sullivan 22 L. R. Ir. 504. The sufficiency of the evidence is the very matter committed to the jurisdiction of the District Justice; the Justice’s function is to decide whether or not the evidence satisfies him. If District Justice O. Floinn erred in the conclusion he came to—and I am far from saying I think he did—his error was one within jurisdiction, and it is not reviewable on certiorari.
In the result, the warrant should not, in my opinion, have been quashed either on the ground accepted in the High Court or on any of the other grounds of objection urged against its validity. The appeal, therefore, should be allowed and the order of the High Court set aside.
Maguire J.:
I agree.
Director of Public Prosecutions v. Delaney
[1998] 1 I.L.R.M. 507
O’Flaherty J
This appeal arises on a consultative case stated by Judge Gillian Hussey, a judge of the District Court assigned to Kilmainham District Court, Dublin, pursuant to s. 52 of the Courts (Supplemental Provisions) Act 1961. The appeal is brought by the appellants from the judgment of the High Court (Morris J) of 8 February 1996, [1996] 1 ILRM 536. Leave to appeal was granted by the High Court judge pursuant to s. 52(2) of the Courts (Supplemental Provisions) Act 1961.
In the course of the case stated, Judge Hussey recites that the five appellants appeared before her at a sitting of Kilmainham District Court on 18 January 1994. Michael Delaney was charged with using words with intent to provoke a breach of the peace contrary to s. 14(13) of the Dublin Police Act 1842, as were Wayne Kelly, Alan Lawless and David Crowley. Wayne Kelly, Alan Lawless, Anthony Lawless and David Crowley were, in addition, charged with producing an article capable of inflicting serious injury during the course of a dispute, contrary to s. 11 of the Firearms and Offensive Weapons Act 1990. David Crowley was further charged with unlawfully assaulting Garda John Ferry in the due execution of his duty contrary to s. 12 of the Prevention of Crimes Act 1861, as well as failing to answer to his bail in accordance with a recognisance entered into by him in the District Court.
Sergeant Nicholas McGrath gave evidence that on 6 June 1993, at about 3.00 a.m. together with nine other gardaí, he arrived at the premises 51, Chamber Court, Dublin 8 (which is in the Liberties area) where there was a disturbance in progress. There was a large crowd in the street which he felt constituted a riot, some of whom were armed with sticks which they had dropped. They moved away on the arrival of the gardaí. This crowd was hostile to persons in flat No. 51, with some persons threatening to petrol bomb and burn down the flat.
Sergeant McGrath felt that he had to take preventative action and so he went to the flat and peered in the window. The appellants had barricaded themselves in. They were armed with weapons. The sergeant requested that the occupants leave the flat, under garda escort for their own safety, which they declined to do, and they demanded that he not enter the flat.
He said that he spoke to two unnamed women on the balcony of the complex who claimed that there were young children inside. He then entered the flat under a power that he believed he possessed at common law, together with five other members of the gardaí. All five accused persons were arrested in the flat. There was a woman with four children on a bed upstairs in the flat. She was the mother of Wayne Kelly, the second named defendant, and the children were his siblings. They were unharmed.
Sergeant McGrath said that he believed he had a right to enter the dwelling ‘on the basis of the safety of the children in the flat and in the interests of the persons inside the flat, having regard to the attitude of the mob outside.’ Evidence to the same effect was given by other members of the gardaí.
The solicitors for the defendants applied for a ‘direction’ on the basis that the entry into 51, Chamber Court was illegal and in breach of the defendants’ constitutional rights and accordingly that the arrests were unlawful.
It was submitted that the gardaí only have the power to arrest without warrant in a person’s home where:
(a) they have reasonable grounds for suspecting that the person has committed a felony, or
(b) they have been given permission by an appropriate person to enter the premises.
Further, that where the gardaí arrest a person without a warrant in his home the power of arrest must be construed in accordance with Article 40.5 of the Constitution which provides that ‘the dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law’ so that, if the member of gardaí is in the dwelling unlawfully at the time of the arrest, that arrest is unlawful.
It appears that the submissions made in the District Court and also in the High Court and, to a degree, in this Court proceeded on the basis that the matter of arrest had some relevance to the charges here.
Whether an arrest is illegal or not, can only be of relevance where proof of a valid arrest is an essential ingredient to ground a charge, such as under s. 49 of the Road Traffic Act 1961, as amended (driving with excess alcohol); see, for example, Director of Public Prosecutions v. Forbes [1993] ILRM 817. It was not necessary in the case of any of the charges brought against these appellants to prove a lawful arrest.
It appears that there was much debate in the District Court as well as in the High Court, on recondite points arising on the decisions of this Court in People (Attorney General) v. O’Brien [1965] IR 142; People (DPP) v. Shaw [1982] IR 1 and Director of Public Prosecutions v. Gaffney [1988] ILRM 39. While I am conscious of how worthless wide judicial pronouncements may be, when not necessary to decide a particular case, I think in the circumstances of this case since the matter occupied the District Court and the High Court to a good extent and we were also urged by counsel for the appellants to deal with the matter, I should say something about the ambit of these decisions. Both O’Brien and Shaw are cases concerned with the admissibility of evidence. There is no question of admissibility of any evidence in regard to these charges as far as the facts set out in the case stated go. O’Brien decided that evidence obtained illegally could be admissible at the discretion of a trial judge and, as a second point, decided that where evidence was obtained as a result of a deliberate and conscious violation of the constitutional rights of an accused person then the evidence should be excluded unless there were ‘extraordinary excusing circumstances’. Walsh J gave three examples of such circumstances, namely, the imminent destruction of vital evidence, the need to rescue a victim in peril, and also evidence obtained by a search which was incidental to and contemporaneous with a lawful arrest, though made without a valid search warrant. In addition, Walsh J made it clear that accidental and unintentional infringements of the Constitution would not be sufficient to exclude evidence obtained without a deliberate and conscious violation of the accused’s rights aside altogether from ‘extraordinary excusing circumstances’. While Kingsmill Moore J, who delivered the majority judgment in that case, adopted Walsh J’s dictum as regards the exclusion of such evidence, he preferred to leave the matter of what would constitute ‘extraordinary excusing circumstances’ for future cases and did not want to anticipate what they might be.
Shaw’s case decided that there is a hierarchy of constitutional rights and when conflict arises between them that which ranks higher must prevail. Thus, in that case the otherwise wrongful detention of the accused had to yield to the possibility that the victim in peril might yet be rescued through information supplied by the suspect while in wrongful custody. As Griffin J (delivering the majority opinion) said, at p. 56:
The existence in a Constitution of certain guaranteed civil, as distinct from natural, fundamental human rights does not mean that a person is entitled to insist on a particular guaranteed right to the exclusion or disregard of another person’s guaranteed right, or of the common good. Indeed, many of the guaranteed personal rights under our Constitution are expressly limited in their application. But even where there is no such express limitation, it is a fundamental canon of construction, as well as being a phenomenon of every legal order, that rights, whether constitutional or merely legal, are prone to come into conflict with one another to such an extent that in particular circumstances one of them must yield right of way to another. If possible, fundamental rights under a Constitution should be given a mutually harmonious application, but when that is not found possible, the hierarchy or priority of the conflicting rights must be examined, both as between themselves and in relation to the general welfare of society. This may involve the toning down or even the putting into temporary abeyance of a particular guaranteed right so that, in a fair and objective way, the more pertinent and important right in a given set of circumstances may be preferred and given application.
Finlay CJ when he came to give the majority judgment of the court (Walsh and Hederman JJ concurring) in People (Director of Public Prosecutions) v. Kenny [1990] 2 IR 110; [1990] ILRM 569 disagreed with the majority view in the O’Brien case concerning the importance of a person’s state of knowledge when a breach of the Constitution is alleged and held that the important point was not whether the breach of the Constitution was undertaken when the person knew or ought to have so known but ‘that the correct principle is that evidence obtained by invasion of the constitutional personal rights of a citizen must be excluded unless a court is satisfied that either the act constituting the breach of constitutional rights was committed unintentionally or accidentally, or is satisfied that there are extraordinary excusing circumstances which justify the admission of the evidence in its [the court’s] discretion’.
However, this decision has nothing to say to the concept of a hierarchy of constitutional rights and it is now well established in our constitutional jurisprudence that there is a recognition of a hierarchy of constitutional rights. See, for a recent example: D. v. Director of Public Prosecutions [1994] 2 IR 465; [1994] 1 ILRM 435. And, also, ever since Quinn’s Supermarket v. Attorney General [1972] IR 1 and McMahon v. Attorney General [1972] IR 69 it has been accepted that there may be a ‘collision’ of constitutional rights on occasion and one right may have to yield to another.
As regards the Gaffney case, it appears that the accused was summoned for breaches of ss. 49, 53, 54, 106 and 109 of the Road Traffic Act 1961, as amended. It appears that the only charge in respect of which the proof of a lawful arrest was an essential ingredient was the s. 49 charge. It was held, on the peculiar facts of that case, that the guards had entered the dwellinghouse of the suspect without authority and that, therefore, the arrest effected was invalid. But that is as far as that case went.
It should be noted that the only one who could assert any constitutional right in relation to a dwelling was Wayne Kelly who was the occupier of the dwelling in question. As already related, the offences charged against him can be proved whether or not there was a breach of any constitutional provision. However, in my judgment, there clearly was not in this case any breach of the Constitution. Sergeant McGrath had to make a choice in an extremely fraught situation. Provided he made that choice bona fide — and there is no suggestion that he did otherwise — then, to recall the words of Kenny J in the Shaw case at p. 63: ‘When passing judgment on the actions of the Garda Síochána, we must remember that they have to make many immediate decisions and cannot possibly get a court decision to guide them’. The sergeant was entitled to enter the premises to safeguard the life and limbs of the woman who was there as well as the children. The fact that he may have thought that he was relying on some common law power is neither here nor there. He was entitled to make the choice that he did and such choice, far from being in breach of the Constitution, was in fulfilment of the obligation that devolves on all citizens to observe and implement the requirements of the Constitution because the safeguarding of life and limb must be more important than the inviolability of the dwelling of a citizen, especially when it is under attack in any event.
Throughout Mr O’Donnell SC’s submission to us there has been an undercurrent of a suggestion that the gardaí might have done more to discipline those who were laying siege to the house; that they should have chased them away or arrested them and could have stopped short of entering the dwelling, thereby harmonising the two constitutional rights: the right to life and inviolability of the dwelling. Whether there is anything in such a point would be a matter for the court of trial (if it came to be considered at all; as already indicated, I do not think this issue has any relevance to the case) but it seems to me that if a person makes a choice — to adopt a well known phrase from the law of tort — in the ‘agony of the moment’ which, on an objective view might be found not be the correct course, nevertheless such a person is not to be faulted for making the choice he did make.
The questions posed in the case stated were:
(1) Having regard to Article 40.5 of the Constitution is the fact that persons outside a property have threatened to harm persons within it an ‘extraordinary excusing circumstance’ justifying a forcible entry by the gardaí against the will of the occupier to a dwelling without warrant?
(2) Do the gardaí enjoy the power to forcibly and against the will of the occupier enter a dwelling without a warrant for the purposes of preventing a breach of the peace caused by persons outside the dwelling in relation to the persons within it?
(3) Do the gardaí enjoy a power to enter a dwelling forcibly against the will of the occupier and without a warrant for the purposes of protecting the safety of persons in that dwelling from threats originating outside the dwelling as opposed to from within it?
(4) Do the gardaí have the power to enter a dwelling forcibly and against the will of the occupier without a warrant on the basis that they have formed a view that there may be children in their own dwelling the other occupants of which (including their mother) have sought to protect themselves against the persons seeking to unlawfully gain access thereto?
It will be clear from what I have stated in the course of this judgment so far that these points are of no relevance to what the learned district judge has to decide. This is because, as already related, proof of arrests — the validity of which arrests might have been vitiated if there was a breach of the Constitution — was not an essential ingredient to prove the charges brought and, in any event, provided the district judge is satisfied that Sergeant McGrath was acting bona fide in the belief that he should enter the premises to safeguard life and limb, then there was no breach of the Constitution. The learned High Court judge was clearly conscious of this difficulty when he came to consider the questions posed and endeavoured to give what guidance he could to the district judge, both in the answers he formulated to the questions in the case stated and in the body of his judgment. I would not propose to attempt another formulation: I think that it is sufficient to say that the district judge now has sufficient guidance from the judgment in the High Court and this judgment to bring the matter to a conclusion.
Of course, it needs to be emphasised that the trial had only got to the ‘direction’ stage when the request for a consultative case was granted. The defendants have yet to be heard.
I would dismiss the appeal.
Farrelly v. Devally
[1996] IEHC 5; [1998] 4 IR 76 (19th July, 1996)
Judgment of Mr. Justice Morris delivered the 19th day of July, 1996 .
1. The Applicant was convicted in Kilmainham District Court on the 8th March, 1993 of three offences as follows:
(a) On the 8th March, 1992 at Ballyfermot Road, Dublin, he unlawfully obstructed one Garda Anita Connolly by refusing to allow himself to be searched contrary to Section 21(4) of the Misuse of Drugs Acts, 1977/1994 as amended.
(b) That on the same occasion he unlawfully assaulted Garda Anita Connolly, a Garda in due execution of her duty contrary to Section 12 of the Prevention of Crimes Act, 1871, and
(c) That he did on the same occasion unlawfully assault one Donal Brazel, a Garda in the due execution of his duty contrary to Section 12 of the Prevention of Crimes Act, 1871.
2. From these convictions the Applicant appealed to the Circuit Court and the matter came on for hearing on the 26th June, 1995. The first named Respondent affirmed the said convictions and varied the amount of the fine for obstruction by reducing the amount from £160 to £20.
3. By Order of the 9th October, 1995 the Applicant was given leave to apply for an Order of Certiorari by way of application for Judicial Review in respect of the Order of the first named Respondent on the grounds that the first named Respondent erred in law in interpreting the provisions of the Misuse of Drugs Acts, 1977/1984 thereby resulting in the wrongful conviction of the Applicant and, accordingly, acted in excess of jurisdiction.
4. Leave was also given on the basis that the first named Respondent erred in law in refusing to dismiss the charges on the grounds that they were bad for duplicity. However, while this ground was not abandoned, no submissions were made in support of it and, accordingly, I confine my judgment to the first of these two grounds.
5. In order to identify the grounds upon which the relief is sought, it is necessary to set out in some detail the facts upon which this application is based.
6. These facts emerge from Affidavits sworn and filed in this matter. On the date of the alleged offence, namely, the 8th March, 1992, Garda Anita Connolly and Garda Brazel observed and monitored the movements of known drug addicts from an unmarked Garda car at a point near the shopping centre in Ballyfermot. While they were doing this the Applicant stopped his car close by. He was approached by Garda Connolly and Garda Brazel. Garda Connolly produced her identification and informed him that she was a member of An Garda Siochana and that he was being detained for the purposes of a search under the Misuse of Drugs Acts, 1977/1984 and that he and his car would be brought to Ballyfermot Garda Station for the purposes of this search.
7. The powers of detention and search under the Misuse of Drugs Acts are contained in Section 23 of the 1977 Act as amended by Section 12 of the 1984 Act.
8. Section 23 of the 1977 Act provides that a member of An Garda Siochana who with reasonable cause suspects that a person is in possession in contravention of this Act of a controlled drug may without warrant;
(a) search the person and if he considers necessary for that purpose detain the person for such time as is reasonably necessary to make a search,.
(b) search any vehicle, vessel or aircraft in which he suspects that such drug may be found and for the purpose of carrying out the search may, if he thinks fit, require the person who for the time being is in control of such vehicle or aircraft to bring it to a stop and when stopped to refrain from moving it, or in any case where such vehicle, vessel or aircraft is already stationery, to refrain from moving it.
9. Accordingly, the section empowers a member of An Garda Siochana to search “on the spot”. Section 12 of the Act of 1984 empowers the Gardai to search the suspect or the vehicle in the Garda Station. It provides:
“1(a) Where a member of An Garda Siochana decides to search a person under this section he may require that person to accompany him to a Garda Station for the purpose of being so searched at that station.
1(b) Where a member of An Garda Siochana decides to search a vehicle, vessel or aircraft under the section he may as regards the person who appears to him to be the owner or in control or charge for the time being of the vessel, vehicle or aircraft make one or more of the following requirements:
(a) Require such person pending the commencement of the search not to remove from the vehicle, vessel or aircraft as may be appropriate any substance, article or thing.
(b) In case the decision relates to a vehicle and the place at which he finds the vehicle is in his reasonable opinion unsuitable for such search, require such person forthwith to take the vehicle or cause it to be taken to a place which he considers suitable for such search and which is specified by him.
(c) Require the person to be in or on or to accompany the vehicle, vessel or aircraft as may be appropriate for so long as the requirement under this paragraph remains in force.”
10. The section goes on to provide that where there is a failure to comply with the requirements made under the section then the member of An Garda Siochana may arrest the person without warrant and may take the vehicle to the place that he considers suitable. The section also creates it an offence to fail to comply with the provisions of the section.
11. It is submitted by Counsel for the Applicant that there is no power vested in a member of An Garda Siochana to bring a person or a vehicle to a Garda Station unless he first of all requires the person to be searched to accompany him to the Garda Station or requires him to take the vehicle to the Garda Station as provided for in Section 12 of the 1984 Act subsections 1(a) and 1(b) and there is a failure to comply with this request.
12. It is submitted that since no such request was made, the Gardai had no authority to remove the Applicant or his vehicle to the Garda Station and since they were not acting in conformity with the provisions of the Act they were not acting in the execution of their duty and the Applicant was fully entitled to resist them as he did.
13. I have no difficulty in accepting Counsel’s proposition that the powers conferred by the Oireachtas on the Garda Siochana are a significant interference with the liberty of the citizen and I accept as a correct statement of the law the statement of Mr. Justice O’Hanlon in D.P.P. -v- Rooney, 1992 I.R. p7 at p10 when he was considering the powers to “stop and search” vested in the police force by Section 29 of the Dublin Police Act, 1842 when he said:
“Although less drastic in its effect than the power to arrest, such action on the part of the police authorities does nevertheless amount to a substantial and significant interference with the liberty of the subject and it appears to me that the same principles which underlie the decisions in Christie -v- Leachinsky, (1947) AC 573 and The People (The Attorney General) -v- White , 1947 I.R. 247 must apply with equal force in this situation also, if the constitutional guarantees of liberty of the person are to be adequately defended and vindicated. Consequently I would hold that before the power of search given by Section 29 of the Dublin Police Act, 1842 already referred to can now be lawfully exercised, the suspect is entitled to be informed of the nature and description of the statutory power which is being invoked.”
14. It seems clear that the Courts require a strict compliance with the provisions of the Section. In The People (At The Suit of The Director of Public Prosecutions) -v- Sean Boylan, 1991 1 I.R. 477 the Court of Criminal Appeal draws distinction between a requirement that the person “be in or on or accompany the vehicle, vessel or aircraft as the case may be appropriate for so long as the requirements under the paragraph remain in force” and the requirement that “the applicant go to a shed down at the Alexandra Road Ferry Port there to meet if not be interviewed by or questioned by a member of An Garda Siochana”.
15. The central question in this case is whether the matter is one which it is proper for the Court to review by way of Judicial Review and this involves considering whether the first named Respondent acted within his jurisdiction in deciding the issues before him as he did.
16. I accept Mr. Justice Henchy’s statement in The State (Holland) -v- Kennedy , 1977 I.R. 193 as correctly summarising the law when he says at p. 201
“But it does not necessarily follow that a court or tribunal vested with powers of a judicial nature which commences a hearing within jurisdiction will be treated as continuing to act within jurisdiction. For any one of a number of reasons it may exceed jurisdiction and thereby make its decision liable to be quashed on Certiorari. For instance, it may fall upon an unconstitutionality or it may breach the requirements of natural justice or it may fail to stay within the bounds of the jurisdiction conferred in it by statute.”
17. There can be no doubt that the first named Respondent had jurisdiction to embark upon the consideration of this District Court Appeal and what the issue comes down to is a consideration of whether his decision in the case was so obviously incorrect as to deprive him of jurisdiction. Put another way, this Court has to consider whether in the words of the Law Lords in Anisminic Limited -v- Foreign Compensation Commission , 1969 2 AC 147 approved by McMahon J. in The State (Cork C.C.) -v- Fawsitt, High Court 13th March, 1981 there has been “an extreme example of an error of law”.
18. It appears to me that what this Court must consider is whether the facts of the case as presented to the first named Respondent could under any circumstances have justified the first named Respondent in reaching the decision he did. If there is no basis upon which he could have been justified then this Court should hold that there was a jurisdictional error. If there was a basis upon which he would have been justified in holding as he did it should not intervene. In John V. Lennon -v- District Judge Clifford and D.P.P. , 1993 ILRM 77 Mr. Justice O’Hanlon restates with approval Lord Brightmans speech in Chief Constable of North Wales Police -v- Evans , 1982 3 AER 141 and reviews other authorities and concludes with the following statement:
“The general tenor of the decisions is that the High Court is not available as a Court of Appeal from decisions of other tribunals except where it is given such a function by statute and that the scope for challenging the validity of Orders made by lower Courts by way of judicial review proceedings is confined to those cases where reliance can be placed on want of jurisdiction or excessive jurisdiction; some clear departure from fair constitutional procedures; bias by interest; fraud and perjury; or decisions containing an error of law apparent on the face of the record.”
19. In the present case, Garda Connolly having approached the Applicant identified herself as a member of An Garda Siochana and told him that he was being detained under Section 23 of The Misuse of Drugs Act, 1977/1984. She informed him that she had evidence of a confidential nature in relation to the Applicant and she informed him that both he and his motor car would be brought to Ballyfermot Garda Station for the purpose of being searched. At this stage the Applicant assaulted her and Garda Brazel.
20. Of the utmost importance in my view is the fact that no steps whatever had been taken towards either bringing the Applicant or his motor car to the Garda Station. All that had happened was that he was told that he and the car would be taken there for the purposes of a search. He was not told how it was proposed to achieve that objective. In particular he was not “required” to bring the car to Ballyfermot.
21. It appears to me that if the submissions made on behalf of the Applicant are correct in this case then by merely informing a suspect of the proposal of the Gardai, then if these proposals failed to measure up strictly to the requirements of any given legislation, irrespective of whether the guards put these proposals into effect or not, would have the effect of depriving the guards of authority. I have a considerable doubt that this proposal can be correct. If one takes, for example, a situation where a suspect is informed by a guard that he proposes to take a statement from him and then when the preparations are made for the taking of the statement the guard administers a full and satisfactory caution so as to ensure to the Court’s satisfaction that the suspect knows it is unnecessary for him to make a statement and the Court is satisfied that the statement is entirely voluntary, can it automatically be said that the statement is inadmissible simply because the Garda indicated his intention and because the caution was administered later in the transaction. Similarly, if a Garda informs a driver that he proposes to breathalyse him in advance of going through the appropriate preliminary procedures which would render such a test lawful, can it be said that this step automatically invalidates the test?
22. I am satisfied that if the Gardai had embarked upon a course of conduct in the furtherance of bringing the Accused and his car to the Garda Station without complying with the requirements of the section then the submissions made on behalf of the Applicant would be well founded. However, on the facts this does not appear to be the case.
23. The significance of the views which I express above is that these or some similar views may well have been present in the mind of the first named Respondent at the time when he reached his decision. If so, it appears to me that his determination of the issues in the case fell within his jurisdiction and in those circumstances it would be improper for this Court to interfere.
24. Accordingly, I refuse the relief claimed.
People (DPP) v. Owens
Supreme Court, February 16, 1999
[Judgments by O’Flaherty J. and Barrington J.; Hamilton C.J., Denham J. and Keane J. agreed with Barrington J.]
Judgment delivered on the 16th day of February, 1999, by O’Flaherty J.
1. I agree with the judgment of Barrington J. on the answer to the question that has been referred to the Court.
2. However, since I believe that the trial should not have been halted on that ground, I add these words. It seems to me that the search warrant was entirely irrelevant in the circumstances of this case. Nothing was found as a result of the search. The gardai must also be taken to have gone to the house with the intention of arresting the respondent on suspicion of felony. If they had found something as a result of the search that might have strengthened
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their case and solidified their suspicion, but clearly the gardai were entitled to act on the suspicion that they had already formed.
3. It is so that they gained entry to the house on producing the search warrant but they would have been entitled to enter the house, peaceably and without force in any event, to effect the arrest. There was nothing to suggest that there was anything defective about the warrant or that it was used in any mala fide way. I do not know of any statement of law that says the gardai are not entitled to go to a person’s dwellinghouse to effect an arrest providing they have the requisite suspicion. On the contrary, the old case of Davis .v. Russell [1829] 5 Bing. 354 decides that the police are so entitled to act. It was an action brought by the plaintiff, an elderly woman, who proved that between 10.00 pm and 11.00 pm at night constables, without producing any warrant, took her from her bed at her lodgings in Cheltenham, and conveyed her to prison where she remained until the next morning when she was brought before the magistrate upon a charge of theft, which was ultimately dismissed. Best C.J. recounts (at p.3 63):-
“It has been further contended, that without a warrant from a magistrate a constable has no right to apprehend upon suspicion, unless there be danger of escape if he forbear to apprehend. The law, however, is not so. For though a private individual cannot arrest upon bare suspicion, a constable may. This has been decided in so many cases, that it is unnecessary to refer to them;
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and unless the law were so, there would be no security for person or property.”
Later, at p. 365 he said:-
“It has further been insisted, that, at all events, an undue degree of coercion was resorted to; that the plaintiff ought not to have been apprehended at night, or compelled to go from her home. But what was the constable to do? Was he to go home? or to watch the plaintiffs house all night? …if the plaintiff had escaped he would have been responsible. A person in his situation has little discretion left to him; if a charge be made he must act; and the defendant would not have been justified if, after the information he had received, he had not gone that night to the plaintiffs house:
he used no unnecessary violence; he did not break the door: and he was bound to make the arrest. The case has been ably argued, and is of great importance. It is important that constables should not abuse their authority, and equally so that they should not be discouraged in the due discharge of their duty. We cannot uphold the notion that a constable is not permitted to go into a house at night to apprehend a person suspected. Severity, indeed, is not necessary, and parties charged should be treated according to their condition…”
4. How does that old law align with our constitutional protections for the dwelling? The answer is provided in the case of The People (Attorney General) . v. Hogan I Frewen 360 , where the question arose as to whether a
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member of the garda was entitled to go to the accused’s caravan when he had a suspicion that the accused had committed a felony (although as it happened the accused was not in the caravan when he went there). Kenny J., delivering the judgment of the Court of Criminal Appeal, said:-
“The guarantee [in Article 40.5 of the Constitution] is not against forcible entry only. The meaning of the article is that the dwelling of every citizen is inviolable except to the extent that entry is permitted by law which may permit forcible entry.
The guard had not a warrant which authorised him to arrest the accused or to search the caravan and he had not implied permission to enter it. As a guard he had authority to arrest the accused without having a warrant if a felony had been committed and if he had reasonable grounds for suspecting that the accused had committed it. He was investigating a felony, breaking and entering, and he entered the caravan to arrest the accused for this crime. The Court is of opinion that a guard has authority to enter a dwelling if he does so to make an arrest which the law permits. The entry was therefore authorised by law and was not a breach of the accused’s constitutional right.”
5. While the case was appealed to the Supreme Court, and the appeal was successful, it was on a point not germane to anything that has come in for
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consideration in this case. See, too, The People (Director of Public Prosecutions) .v. McCann (C.C.A. 11th March, 1998; unreported ).
6. The matter of arrest on suspicion is now regulated by s. 4 of the Criminal Law Act, 1997, which provides:-
“(1) Subject to subsections (4) and (5), any person may arrest without warrant anyone who is or whom he or she, with reasonable cause, suspects to be in the act of committing an arrestable offence.
(2) Subject to subsections (4) and (5), where an arrestable offence has been committed, any person may arrest without warrant anyone who is or whom he or she, with reasonable cause, suspects to be guilty of the offence.
(3) Where a member of the Garda Síochána, with reasonable cause, suspects that an arrestable offence has been committed, he or she may arrest without warrant anyone whom the member, with reasonable cause, suspects to be guilty of the offence.
(4) An arrest other than by a member of the Garda Síochána may only be effected by a person under subsections (1) or (2) where he or she, with reasonable cause, suspects that the person to be arrested by him or her would otherwise attempt to avoid, or is avoiding, arrest by a member of the Garda Síochána.
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(5) A person who is arrested pursuant to this section by a person other than a member of the Garda Síochána shall be transferred into the custody of the Garda Síochána as soon as practicable.
(6) This section shall not affect the operation of any enactment restricting the institution of proceedings for an offence or prejudice any power of arrest conferred by law apart from this section.”
“Arrestable offence” is defined in s. 2 to mean:-
“an offence for which a person of full capacity and not previously convicted may, under or by virtue of any enactment, be punished by imprisonment for a term of five years or by a more severe penalty and includes an attempt to commit any such offence.”
7. I would wish, for my part, to prevent any misapprehension about the scope of what we were asked to decide in this reference. I would hold that the learned trial judge erred in ending the trial at the stage that he did. The arrest of the respondent was valid and, therefore, his detention was in order. It would be wrong if, in the future, trials were unnecessarily halted on unsustainable grounds.
Judgment 271
JO’F – DO’C
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THE SUPREME COURT
Record No. 101/98
Hamilton, C.J.
O’Flaherty, J.
Denham, J.
Barrington, J.
Keane, J.
IN THE MATTER OF THE CRIMINAL PROCEDURE ACT, 1967,
and
IN THE MATTER OF THE REFERENCE OF A QUESTION
OF LAW TO THE SUPREME COURT FOR
DETERMINATION
and
IN THE MATTER OF THE TRIAL OF THE PEOPLE AT THE
SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
V.
DAVID OWENS
JUDGMENT of Mr. Justice Barrington delivered the 16th day of February, 1999.
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8. This case concerns a net point of law referred to the Supreme Court pursuant to the provisions of the Criminal Procedure Act, 1967, by the Director of Public Prosecutions, after consultation with his Honour Judge Joseph Matthews, a Judge assigned to the Circuit Criminal Court for the County of Dublin.
Background to the reference .
9. The background to the reference is as follows. The trial of the above-named accused David Owens took place on the 10th day of November, 1997, before Judge Joseph Matthews sitting as the Judge assigned to the Circuit Criminal Court for the County of Dublin with a jury. The accused was arraigned and, having pleaded not guilty, a jury was empanelled to try the counts on the indictment. These consisted of three counts – assault occasioning actual bodily harm contrary to Section 47 of the Offences against the Person Act, 1861; having an article in a public area intending unlawfully to cause injury, incapacitate or intimidate contrary to Section 9 (5) of the Firearms and Offensive Weapons Act, 1990; and robbery contrary to Section 23 of the Larceny Act, 1916, as inserted by Section 5 of the Criminal Law (Jurisdiction) Act, 1976.
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10. The offences were alleged to have been committed on the 21st October, 1994 (some three years before the trial). On the 9th November, 1994 Garda Vincent Byrne, acting on confidential information, received by a colleague, that some of the proceeds of the robbery might be found at 55 Doon Court, Poppintree, obtained from Mr. Fowler, a Peace Commissioner, a warrant to search the premises. Later on the same night, at about 1.10 a.m., Garda Byrne accompanied by three other Garda officers went to the premises 55 Doon Court, Poppintree. The door was opened by the accused David Owens. The search warrant was produced and the Gardai carried out a search of the premises but found nothing incriminating. Nevertheless Garda Byrne, on the basis of confidential information which he had received and of statements in his possession, believed that David Owens was responsible for the robbery and, after caution, arrested him on the premises and conveyed him to Ballymun Garda Station where he was detained pursuant to the provisions of Section 4 of the Criminal Justice Act, 1984. While in detention he made an incriminating statement which was the principal evidence to be proffered by the prosecution against him at his trial.
11. At the commencement of the trial the defence indicated that they were challenging the search warrant and putting the prosecution on formal proof of it. Their line of argument, which appears to have been accepted by the trial
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12. Judge, was that if the search warrant was invalid the entry by the police officers into the premises was illegal and amounted to an unconstitutional invasion of the accused’s dwellinghouse; that the arrest was therefore invalid and also the detention of the accused pursuant to Section 4 of the Criminal Justice Act, 1984 was also invalid and any statement made by him, while in unlawful detention was inadmissible in evidence against him.
13. At the commencement of the trial, the defence having challenged the validity of the search warrant, the learned trial Judge agreed to try a preliminary issue relating to the search warrant in the absence of the jury.
14. The prosecution’s problem was that the Peace Commissioner, Mr. Peter Fowler, was eighty-five years old at the date of the issue of the search warrant, and, at the time of the trial – some three years later – was too ill to come to Court to explain his state of his mind at the time he issued the search warrant. In these circumstances the learned trial Judge felt that he was bound by the decision in The People [DPP] v. Byrne [1989] ILRM p. 613 . He, accordingly, held that the Peace Commissioner’s signature was not sufficient to establish the validity of the warrant and that the Peace Commissioner must be present in person to prove his state of mind and to be available, if necessary, for cross-examination by the defence.
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15. The learned trial Judge ruled that there was no evidence to establish the validity of the search warrant. He thereupon ruled that the subsequent arrest and detention were invalid and unconstitutional and directed the jury to find the accused not guilty.
16. In these circumstances the Director of Public Prosecutions, after consultation with the trial Judge has referred to us for decision the following question-
“The question of law hereby referred to the Supreme Court for determination is whether the learned trial Judge properly exercised his judicial discretion in holding that a peace commissioner must give evidence to prove his state of mind at the time of issuing the warrant”.
17. As previously indicated the case by which the learned trial Judge felt bound was The People [Director of Public Prosecutions] v. Byrne [1989] ILRM 613. In that case the accused had been arrested in pursuance of Section 30 of the Offences against the State Act, 1939, and his initial period of detention had been extended for a further four hours by a Garda Chief Superintendent. During the period of extended detention an incriminating statement was made by the accused which the prosecution wished to adduce in evidence. The Chief Superintendent was no longer alive at the date of the trial
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and no evidence could therefore be adduced as to the state of his mind when directing the extension period. The trial Judge ruled the statement inadmissible and directed the jury to acquit the Respondent. This Court (Finlay, CJ, Walsh, Griffin, Hederman and McCarthy JJ) held that he was right. They held that the suspicion of the Chief Superintendent must be expressly proved and cannot be inferred either from the signing of the extension order or by hearsay evidence of a verbal direction. Such evidence could only be given by the Chief Superintendent himself.
18. McCarthy, J. having referred to the presumption “omnia praesumunter rite esse acta” continued [at page 619] of his Judgment as follows:-
“This presumption, however, is limited; there is a wide gap between a presumption in favour of the regularity of acts and against misconduct and bad faith and that degree of proof required not merely in every criminal trial, as such, but, also, in every instance of what is, on its face, a breach of the constitutional right to personal liberty. There is no suggestion that Chief Superintendent Joy did not entertain the suspicion necessary to warrant giving the statutory direction; that is not to the point, the necessary underpinning of the direction must be positively proved and cannot be inferred merely from the signing of a formal direction or the intimation of a less formal direction by word of mouth”.
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19. The Peace Commissioner, like the Chief Superintendent, is a public officer but he is not a Court of Record. A search warrant is also a document which may affect constitutional rights. It does not speak for itself in a criminal trial. It appears to me that the learned trial Judge was right in feeling himself bound by the decision in The People [Director of Public Prosecutions] v. Byrne. I would accordingly answer the question referred to us “Yes “.
20. No question was referred to us concerning the validity of the arrest in this case nor were any submissions made to us on that issue either by Counsel for the Director of Public Prosecutions or by Counsel assigned by the Court. I accordingly make no comment on that matter.
People v. Edgeworth
, Supreme Court, March 29, 2001
JUDGMENT of Mr. Justice Hardiman delivered the 29th day of
March, 2001 [nem diss.].
Background.
1. On the 23rd and 24th days of February, 1998 the Defendant herein, Mr. Edgeworth, was tried before his Honour Judge Matthews in the Dublin Circuit Court on charges alleging the breach of Section 15 and Section 3 of the Misuse of Drugs Act, 1977 as amended.
2. After the jury had been empanelled, a preliminary point was argued in relation to the validity of a search warrant under which the Gardaí had searched certain premises. On this point being resolved in favour of the Defendant, with the consequence that a considerable body of evidence fell to be excluded, the Defendant was found not guilty by direction of the learned trial judge on both counts.
3. The Director has referred to this Court, pursuant to Section 34 of the Criminal Procedure Act, 1967, the point of law which, he says, led to this directed verdict.
Pursuant to Section 34(2) of the 1967 Act, the statement of the question of law to be referred to this Court has been settled by the Director of Public Prosecutions after a consultation with the learned trial judge. It is as follows:-
“Whether the learned trial judge was correct in law in holding that notwithstanding evidence of the appointment of the Commissioner and due issue of the warrant, it was bad in law and void and the entry unlawful because:
(a) It failed to assert that the Peace Commissioner who signed it was a Peace Commissioner for the County of Dublin and
(b) It was headed ‘The District Court’ ”.
4. It may be noted that this was not the only ground argued at the trial against the validity of the warrant. The first ground related to the proposition that the Peace Commissioner had not formed any view on the grounds put forward to support the issue of the warrant, but merely accepted that the Garda making the application was sincere in his view of the said grounds. The Peace Commissioner gave evidence that Gardaí called to her looking for such warrants “very, very often” and that she had never refused to issue a warrant “because I always asked the one question about the information” . This one question appeared to be as to whether the information on which the application was based was confidential because “…….usually when they come to me they all say that to me to sign, like, on confidential information”. In this particular case “I asked him was it confidential information and he said yes, and he was positive”. However, although there is no absolutely express statement of the ground on which the preliminary issue was decided in favour of the Defendant, it seems likely from the contents of pages 30 and 31 of the transcript that the ground was substantially that identified by the Director and set out above.
The Warrant.
5. The warrant in this case is dated the 11th November, 1996 and is signed by Maureen Smyth. Under her signature the words “Judge of the District Court” have been crossed out and the words “Peace Commissioner” written below the deleted words, in capital letters. The warrant itself is in common form and is headed with the official emblem of the Harp with “An Chúirt Duiche” on one side and “The District Court” on the other. Underneath that is written “Misuse of Drugs Act, 1977, Section 26” and in capital letters “Search Warrant Dublin Metropolitan District”.
6. At the trial, evidence was given before the learned trial judge by both Garda Galvin who applied for the warrant and Mrs. Smyth who issued it. It is clear from this evidence that the application was made to Mrs. Smyth in her capacity as a Peace Commissioner for the County Borough of Dublin and the County of Dublin and the counties immediately adjoining that county. She was so appointed on the 5th March 1981 by Mr. Jim Mitchell, the then Minister for Justice. She produced her warrant of appointment to the learned trial judge.
Grounds of challenge.
7. The grounds of challenge in this matter are limited to the two mentioned above viz. whether the warrant is invalidated by the failure to specify that the Peace Commissioner was a Peace Commissioner for the County of Dublin, and by the fact that the warrant was entitled “The District Court” .
8. Provision for the appointment of Peace Commissioners was made by Section 88 of the Courts of Justice Act, 1924. This provided that:-
“The Minister for Home Affairs may from time to time by warrant under his hand appoint and remove such and so many fit and proper persons as he shall think expedient in each county to be called …… Peace Commissioners and to perform and exercise within such county and (if so expressed in his warrant of appointment) within the counties immediately adjoining such county the duties and powers of Peace Commissioners under this Act”.
Section 26 of the Misuse of Drugs Act, 1977 provided that:-
“(1) If a Justice of the District Court or a Peace Commissioner is satisfied by information on oath of a member of the Garda Síochána that there is reasonable ground for suspecting that…… such Justice or Commissioner may issue a search warrant mentioned in subsection (2) of this Section”.
9. Here, no question arises as to whether the Peace Commissioner was in fact so satisfied or as to whether the evidence available allowed her rationally to be so satisfied. Nor does any question arise as to whether the warrant issued pursuant to the power just recited was in any particular form: it appears to be common case that so long as such warrant complied with provisions of subsection (2) of Section 26 (as inserted by Section 13 of the Misuse of Drugs Act, 1984), no particular form of warrant had been prescribed or was required.
Conclusions.
10. Article 40.5 of the Constitution provides:-
“The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law”.
11. This provision was commented upon by Mr. Justice Carney in DPP v. Henry Dunne [1994] 2 IR 537 at 540 as follows:-
“The constitutional protection given in Article 40.5 of the Constitution in relation to the inviolability of the dwellinghouse is one of the most important, clear and unqualified protections given by the Constitution to the citizen”.
12. I respectfully agree.
13. In circumstances such as those arising in the present case, forcible entry to the premises in question could be secured “in accordance with law” by the operation of Section 26 of the Act of 1977, as amended. This required that a Peace Commissioner or Judge of the District Court be satisfied of certain matters by the information on oath of a member of the Garda Síochána. The matters in question are those set out at paragraphs (a) or (b) of subsection (1) of Section 26. In this case, the information exhibited extends to the matters described in subparagraph (a) of the subsection. There is no issue before this Court as to the adequacy of this information to satisfy the Peace Commissioner.
14. Turning to the warrant, there is no doubt that, while it is not itself in any statutorily prescribed form, it complies with subsection (2) of Section 26 as amended. In other words, in so far as its form is laid down by statute, it complies with the statutory requirement.
15. There is no doubt that the warrant is headed “The District Court” and with the other words set out earlier in this judgment. Equally clearly, the document is signed by a person describing herself as a Peace Commissioner and not as a Judge of the District Court. The heading of the warrant undoubtedly relates to the fact that a judge of the District Court is entitled to issue such warrants and no doubt frequently does. No special form seems to have been provided by the authorities for use when the application for a warrant is made to a Peace Commissioner and not to a Judge of the District Court. This is a regrettable omission but in my opinion is not such as invalidates a warrant in the form of the present one.
16. The present warrant features an inappropriate statement on the face of the document whose affect is to associate the document with the District Court whereas in fact it was issued without any application to a judicial personage at all. It is not however a statement calculated to mislead and there was no evidence before the learned trial judge that any person was in fact misled. The status of the person actually issuing the warrant appears clearly on its face.
17. This situation may be contrasted with those obtaining in DPP v. Dunne , cited above, or Simple Imports Ltd. and Anor. v. The Revenue Commissioners [2000] 2 IR 243.
18. In the latter case, the Customs Consolidation Act, 1876 permitted the issue of a warrant:
“If any officer of Customs shall have reasonable cause to suspect …… and it shall be made to appear by information on oath before any District Judge…….”
19. This Court held that the rather odd syntax of the provision meant that “The District Judge, before issuing the warrant, must have come to the conclusion, from the information on oath of the Customs Officer, not merely that he (the officer) suspects that there are uncustomed or prohibited goods on the particular premises but that his suspicion is reasonable”.
20. In fact, the warrants in question in Simple Imports omitted the recitation of the existence of a cause for suspicion which was “reasonable”. The Court struck down the warrants as invalid.
Similarly, in Dunne the warrant in question, which was in the same form as the warrant in the present case, had an essential averment struck out of its body. This was the averment that a person was in possession of a controlled drug “on the premises to which the warrant related”. This was plainly one of the requirements of Section 26(1) (a). Carney J. held that he could not act on the proposition that the words struck out of the body of the warrant had been so struck out by inadvertence because “such an approach would facilitate the warrant becoming an empty formula”.
21. I have no doubt that the warrants in question in the two cases cited were correctly found inadequate by the Superior Courts. As was said by Keane C.J. in Simple Imports , referring to powers of search or seizure:-
“These are powers which the Police and other authorities must enjoy in defined circumstances for the protection of society, but since they authorise the forcible invasion of a person’s property, the Courts must always be concerned to ensure that the conditions imposed by the legislature before such powers can be validly exercised are strictly met”.
22. In each of the cases cited, there had been a failure to demonstrate that the conditions laid down by the legislature had in fact been met. In the first of them, Simple Imports , the warrant itself provided positive evidence that the condition precedent had not been met. In the present case the position is quite different: all the statutory criteria can be seen, at least on a prima facie basis, to have been met. The misdescription, and that is the most it can be called, involved in the use of the heading “The District Court” is not a breach of any condition or criterion imposed by the legislature and is simply an error. In my view there is no basis in law for the proposition that this error invalidates a document which accords with all specified requirements of the law.
23. I turn now to the objection on the basis that Mrs. Smyth is described merely as a Peace Commissioner without the addition of a county or counties for which she holds this appointment.
24. I believe that the appointment of a Peace Commissioner is subject to a territorial limitation. Section 88 of the Act of 1924 provides for the appointment of such Peace Commissioners “in each county” . They are so appointed “to perform and exercise within such county ……..the duties and powers of Peace Commissioners under this Act”. (Emphasis added)
25. Since this is the general power of a Peace Commissioner, I do not believe that it was necessary for the 1977 Act expressly to spell out a territorial limitation on the power either of a Peace Commissioner or a Judge of the District Court. Nor do I believe that the omission of the latter Act to do so empowers a Peace Commissioner to issue warrants for an area outside the county in respect of which she has been appointed or the adjoining counties, as the case may be.
26. It follows from this that, if at the trial Mrs. Smyth’s warrant of appointment had not been shown to extend to the area where the premises sought to be searched were situated, this would have been fatal to the validity of the warrant. But there was no such omission at the trial and the uncontradicted evidence was that her appointment was in respect of the relevant county. A warrant issued under the provisions of Section 26 is not required either by the terms of that section or by any general enactment or rule to carry on its face a statement of the counties to which a Peace Commissioner’s warrant of appointment relates. The omission to do so is not a breach of any condition laid down by law for the issue of a warrant.
27. I would determine the question settled by the Director of Public Prosecutions, and set out at the start of this judgment, in the negative.
People (DPP) v McCarthy
[2010] IECCA 89
Judgment of the Court delivered on the 12th day of October, 2010 by Macken, J.
This is an application made on behalf of the Director of Public Prosecutions, pursuant to the provisions of the Criminal Procedure Act, 1967 (“the Act of 1967”), as amended by s.9 of the Criminal Justice Act, 1999 (“the Act of 1999”). It is made against the decision of the Circuit Court judge sitting at a Dublin Circuit Criminal Court on the 12th October, 2009, who ruled that, in light of certain errors in the search warrant used in the course of the crime investigation, the details of which will be dealt with later in this judgment, the charges laid against the respondent would have to be dismissed.
Background
The respondent, as accused, was charged with certain offences under the provisions of the Misuse of Drugs Acts, 1977/1984 (“the Acts of 1977/1984”). In particular, that at specified premises in Old Bawn, Tallaght, County Dublin, he was alleged to have in his possession prohibited drugs, namely, cocaine and diamorphine (heroin), in respect of which there were four counts, as follows:
1. Unlawful possession of cocaine.
2. Unlawful possession of diamorphine.
3. Possession of diamorphine for the purposes of sale or supply.
4. Possession of diamorphine having a market value at the time amounting to €13,000, or more, for the purposes of sale or supply.
These are serious offences, especially the latter two, the penalties in respect of these being correspondingly high.
The respondent was returned for trial, in the usual way, to the Dublin Circuit Criminal Court, and on his behalf an application was made pursuant to the provisions of s.4E of the Act of 1967, as amended by s.9 of the Act of 1999, seeking the dismissal of the charges laid against him on the Bill of Indictment. That section provides, in its amended form, as follows:
4E.— (1) At any time after the accused is sent forward for trial, the accused may apply to the trial court to dismiss one or more of the charges against the accused.
(2) Notice of an application under subsection (1) shall be given to the prosecutor not less than 14 days before the date on which the application is due to be heard.
(3) The trial court may, in the interests of justice, determine that less than 14 days notice of an application under subsection (1) may be given to the prosecutor.
(4) If it appears to the trial court that there is not a sufficient case to put the accused on trial for any charge to which the application relates, the court shall dismiss the charge.
(5) (a) Oral evidence may be given on an application under subsection (1) only if it appears to the trial court that such evidence is required in the interests of justice.
(b) In paragraph (a) ‘oral evidence’
includes—
(i) any evidence given through a live television link pursuant to Part III of the Criminal Evidence Act, 1992, or section 39 of the Criminal Justice Act, 1999, or
(ii) a videorecording of any evidence given through a live television link pursuant to that Part or section in proceedings under section 4F.
(6) Where the trial court is satisfied that it is in the interests of justice that any document required under this Part to be served on the accused or his solicitor be served at the hearing of an application under this section—
(a) the prosecutor shall serve the document on the accused or his solicitor, if any, at the hearing, and
(b) the court may, if it considers it appropriate to do so, adjourn the hearing for that purpose.
(7) Where a charge is dismissed by the trial court under subsection (4), the prosecutor may, within 21 days after the dismissal date, appeal against the dismissal to the Court of Criminal Appeal.
(8) On an appeal under subsection (7), the Court of Criminal Appeal may—
(a) affirm the decision of the trial court, or
(b) quash the decision of the trial court, in which case the trial of the accused may proceed as if the charge had never been dismissed.
The basis for the application stems from the terms of a search warrant, the background to which is as follows:
A. In January, 2008 Garda O’Connell of the local garda station obtained from a Peace Commissioner for the appropriate area a search warrant pursuant to s.26 of the Acts of 1977/1984, permitting the gardai to search specified premises at Old Bawn, Tallaght in County Dublin. It appears clear that Garda O’Connell informed the Peace Commissioner that he had received confidential information from a source, claimed to be reliable, or who had previously been reliable, that cocaine was being sold from the premises in question and that he, the garda, had carried out enquiries and effected surveillance on the address in question.
B. It appears from the Book of Evidence that the Peace Commissioner considered that he was satisfied from the information furnished by Garda O’Connell and from the garda’s answers to questions which he, the Peace Commissioner, had put to him, that there were reasonable grounds for believing that cocaine was to be found at the address in question and he therefore issued a search warrant, signed by him, on the 19th January, 2008.
C. Garda O’Connell having secured the search warrant, attended at the premises in question in the evening of the 19th January, 2008, and the Book of Evidence records that he stated as follows:
“I knocked on the door and it was answered by a female. I identified myself as a member of An Garda Siochana to the female and explained I was in possession of a search warrant issued pursuant to s.26 of the Misuse of Drugs Act, 1977/1984, and that I intended to search the premises. I then explained in ordinary English, and the female indicated she understood. A search of the house commenced …”.
D. As a consequence of that search, both cocaine and diamorphine (heroin), which are the subject of the charges in question, were found in the bedroom of the respondent, together with other drug paraphernalia. The respondent was arrested at the premises and taken to Tallaght Garda Station and interviewed. He claimed to have received the drugs in question shortly before the gardai arrived, but said he did not know that heroin was involved. The respondent indicated, during the interview, he was to deliver the package to another person, so as to wipe out a drug debt, and claimed to be in fear for his safety if he did not comply with this person’s orders, the person being unidentified.
It is the above search warrant which forms the basis of the appeal to this Court, and the terms of which formed the basis for the learned Circuit Court judge’s ruling dismissing the charges against the respondent.
Pursuant to the application made on behalf of the respondent under s.4E of the Act of 1967, as amended by the Act of 1999, in the Circuit Court, Mr. Sean Gillane, S.C., contended that the search warrant was invalid and did not authorise the search of the premises in which the respondent and the drugs were found on the date in question. It was argued that the fruits of such a search, which were the drugs, including diamorphine and cocaine found on the premises, were not admissible in evidence as a result of the alleged invalidity of the search warrant. The basis for this allegation is twofold:
(1) Although the search warrant was not issued by the District Court, but rather by a Peace Commissioner, it was nevertheless entitled and bore the heading “An Chuirt Duiche” and “The District Court”, as if it had been issued from the District Court.
(2) Although both parties were in agreement that the warrant was, in fact, signed by the Peace Commissioner in his own name, and there is no doubt but that he is a Peace Commissioner, nevertheless, the warrant bore the following notation under his signature: “JUDGE OF THE DISTRICT COURT ASSIGNED TO THE SAID DISTRICT”.
The case made by counsel on behalf of the respondent was that such a warrant did not comply with the appropriate legal requirements, and could not be saved by the application of the principles established by the case law on the matter.
On the other hand, Patrick McGrath, counsel on behalf of the applicant, as prosecutor, argued that it was clear on the face of the document that the search warrant was signed by a Peace Commissioner, and the respondent, as accused, had accepted that it was signed by a Peace Commissioner. Further, the substance of the warrant was not being challenged in any way by the respondent, as accused. In the case of the warrant in suit, the person signing the warrant, namely, the Peace Commissioner, had full jurisdiction to sign and issue the warrant. All the statutory pre-conditions for the issue of the warrant had been complied with, and in the present case, he contended that unequivocally and. on its face the statutory authority for the search in question was disclosed. According to his argument, the case law did not support a claim that every infirmity in a warrant invalidates it. On the contrary, the case law makes it clear that only those defects that go to the heart of the jurisdiction to grant the warrant have the effect of invalidating it. In the present case there is simply a technical error on the form, there was no intention to mislead, and no evidence that any person was, in fact, misled.
Mr. Gillane, in reply, did not demur from some of the arguments made on behalf of the Director of Public Prosecutions, but contended that the requirement for the warrant to “show unequivocally on its face authority for the search in question” was not fulfilled in the present case. The warrant purported that the authority was that of a judge of the District Court, which was simply incorrect and misleading as to the status of the signatory. Both parties cited extensive case law.
The learned Circuit Court judge, having considered the submissions by counsel for each party, and, in particular, having considered the case law on the matter, found that the error in the document, arising from the fact that the Peace Commissioner signed the search warrant, which indicated incorrectly on its face that this was done in the capacity of a judge of the District Court, was nevertheless an error on the face of the document which was a fundamental error, not capable of being corrected on viva voce evidence. The warrant did not show jurisdiction or authority, because the person signing the document is either a judge of the District Court, or he is not, and this incorrect assertion, that he was a judge, could not be corrected at that stage. The warrant, the trial judge found, was incorrectly signed by somebody who misleadingly described himself as a judge. According to the transcript, the trial judge having had careful regard to the various judgments furnished to the court, and having considered the observations of Prof. Dermot Walsh in his book on “Criminal Procedure”, held that this error on the face of the search warrant was fundamental and not capable of being corrected. In consequence, the learned Circuit Court judge found that the warrant had no validity in law, and dismissed the charges under s.4E of the Act of 1999.
From that ruling the applicant has appealed on the following grounds:
(a) The learned trial judge erred in law in dismissing the charges against the respondent, pursuant to the provisions of s.4E of the Criminal Procedure Act, 1967, as inserted by the Criminal Justice Act, 1999;
(b) The learned trial judge erred in law in ruling that the search warrant was invalid;
(c) The learned trial judge erred in principle in holding that, entry having been gained into the premises on foot of the warrant, evidence of the finding of controlled drugs in the premises was not admissible in evidence at the trial of the proceedings;
(d) The learned trial judge erred in law in concluding, where it was undisputed that the Peace Commissioner had signed the said search warrant and had affixed his signature “Michael Duff, PC”, that the failure on the part of the said Peace Commissioner to delete that part of the search warrant which described the signatory as “JUDGE OF THE DISTRICT COURT ASSIGNED TO THE SAID DISTRICT” rendered the search warrant invalid;
(e) The learned trial judge erred in law in failing, when considering the signature on the warrant, to take into account evidence which on the application then before the court, under the Act of 1967 and as set out in the Book of Evidence, was uncontested, including the statement of Garda John O’Connell that he applied to the Peace Commissioner for the warrant, the information on oath sworn by the garda and signed by the Peace Commissioner, who described himself on the information as “a Peace Commissioner for the County of Dublin, etc.”; the evidence of the garda that the Peace Commissioner had issued the search warrant to him on foot of that information; the evidence of the Peace Commissioner that he had issued the search warrant, which evidence was exhibited in the Book of Evidence; and the accepted fact that the search warrant was signed by the Peace Commissioner but was erroneous in its form, in that it referred to him as a Judge of the District Court Assigned to the Said District.
The Issues on the Appeal and the Law Thereon
The net issue arising on this appeal relates to the errors on the search warrant. The Court is satisfied that the fact that the Information was sworn, and was signed by the Peace Commissioner in that capacity, he stating himself on the Information to be such a Peace Commissioner, does not affect the validity, or otherwise, of the search warrant in question. The Information was equally entitled “An Chuirt Duiche” and “The District Court” at the top of the document, although that document was clearly signed above the description “Peace Commissioner”.
The nub of the problem appears to have arisen because the Peace Commissioner was presented with pro forma or pre-typed documents applicable for an application to a District judge, but inapplicable to the jurisdiction and status as a Peace Commissioner, a matter which is puzzling, to say the least. The Court considers that it must be possible, with little or no effort, to present to a Peace Commissioner, when it is clear that the garda authorities are going to apply to a Peace Commissioner, as opposed to a District judge, a document in the same pro forma pre-printed version appropriately adapted to suit the status and jurisdiction of a Peace Commissioner. If such simple steps had been taken, this appeal, and equally the application originally brought before the Circuit Court judge, would have been wholly unnecessary.
There are several cases relevant to the issue and they are of some assistance, together with academic writings, in resolving the legal issues which were before the learned Circuit Court judge. Among the authorities are the following: Simple Imports v. Revenue Commissioners [2000] 2 I.R. 243, The People (DPP) v. Edgeworth [2001] 2 IR 131, The DPP v. Dunne [1994] 2 I.R. 537 and The People (DPP) v. Veronica Balfe [1998] 4 I.R. 50. The last of these cases concerned an error in the warrant, in that it did not correctly transpose the description of the goods for which the search warrant was sought under the provisions of The Larceny Act, 1916. This Court, in Balfe, having considered other authorities, concluded that this defect, although serious, was a patent defect rather than an inherent or fundamental effect, and therefore the goods in question could properly be admitted in evidence by the trial judge. While the facts were quite different, in the course of the judgment, delivered by Murphy, J., this Court stated as follows:
“Where a judge of the District Court acting within his jurisdiction agrees to issue a search warrant, a mistake, however gross, in the recording of his order will not necessarily render the warrant invalid for all purposes though it might justify persons to whom it was addressed, or intended to be addressed, declining to cooperate with it. Where, however, the search warrant is made without authority, then it has no value in law, however innocent the mistake when granting the same or however apparently plausible the document issued.” (emphasis added)
The second case which has been considered and argued by both parties on this appeal is the Simple Imports case, supra., in which the warrant did not, on its face, show jurisdiction for issuing it. Pursuant to the provisions of the legislation governing the particular warrants in question, the District judge was required to conclude, not only that the officer seeking the search warrant (a Customs & Excise officer) suspected that there were prohibited goods on particular premises, but also that “the suspicion of such officer was reasonable”. The Supreme Court concluded that the warrant in question was inadequate for the purposes of the particular legislation, as the required pre-condition was not reflected in the warrant. In that regard Keane, J., as he then was, stated:
“I am satisfied that the submissions on behalf of the respondents that, in a case where the warrant itself states that it is being issued by the District Judge on a basis which is not justified by the statute creating the power, the invalidity of the warrant can be cured by evidence that there was in fact before the District Judge evidence which enabled him to issue the warrant within the terms of the statute is not well founded. The proposition seems to me contrary to principle and unsupported by authority. Given the necessarily draconian nature of the powers conferred by the statute a warrant cannot be relied upon as valid which carries on its face a statement that it has been issued on a basis which is not authorised by the statute. It follows that the warrants were invalid and must be quashed”. (emphasis added)
In the case of DPP v. Dunne, supra., the High Court (Carney, J.) dealt with a case also falling within the ambit of validity of warrants, but that case, in reality, is dependent on its particular and peculiar facts, and the Court does not consider it to be of any additional assistance.
The final case, which both parties accept is also particularly relevant to the issues arising on the appeal, is The People (DPP) v. Edgeworth, supra. That case too involved a search warrant issued by a Peace Commissioner, and also under the Misuse of Drugs Acts, 1977/1984. It too was a document which, as here, issued under the title “An Chuirt Duiche” and “The District Court” and, as in the present case, it was signed by a Peace Commissioner. However, in that case the words “JUDGE OF THE DISTRICT COURT ASSIGNED TO THE SAID DISTRICT” had been clearly deleted by being crossed out, and the words “Peace Commissioner” in full were written in capital letters below the signature.
In the Edgeworth case, when considering the challenge to the warrant, the Supreme Court unanimously stated that the pre-conditions required for the issuing of a warrant under the Acts in question existed. The first finding of the Supreme Court is in the following terms:
“1. That it was inappropriate for a warrant issued by a Peace Commissioner to bear the words “The District Court” but that the appearance of such words did not breach any statutory requirement as to the form of the warrant and did not mislead, where the status of the person issuing the warrant appeared clearly on its face, and did not, therefore, affect the validity of the warrant”. (emphasis added)
Hardiman, J. in the sole judgment stated:
“There is no doubt that the warrant is headed “The District Court”, and with the other words set out earlier in this judgment. Equally clearly, the document is signed by a person describing herself as a Peace Commissioner and not as a Judge of the District Court. The heading of the warrant undoubtedly relates to the fact that a judge of the District Court is entitled to issue such warrants and no doubt frequently does. No special form seems to have been provided by the authorities for use when the application for a warrant is made to a Peace Commissioner and not to a Judge of the District Court. This is a regrettable omission but in my opinion is not such as invalidates a warrant in the form of the present one.
The present warrant features an inappropriate statement on the face of the document whose affect is to associate the document with the District Court whereas in fact it was issued without any application to a judicial personage at all. It is not however a statement calculated to mislead and there was no evidence before the learned trial judge that any person was in fact misled. The status of the person actually issuing the warrant appears clearly on its face.`” (emphasis added)
Following on from the foregoing case law, Hardiman, J., stated as follows in his conclusions:
“In the first of them, Simple Imports the warrant itself provided positive evidence that the condition precedent had not been met. In the present case the position is quite different: all the statutory criteria can be seen, at least on a prima facie basis, to have been met. The misdescription, and that is the most it can be called, involved in the use of the heading “The District Court” is not a breach of any condition or criterion imposed by the legislature and is simply an error. In my view there is no basis in law for the proposition that this error invalidates a document which accords with all specified requirements of the law.” (emphasis added)
The Argument of the Parties
In a nutshell, what is argued on behalf of the parties, boils down to whether or not the learned Circuit Court judge was correct in finding that the two errors in the search warrant, and, in particular, the error in the description of the signatory as being a “JUDGE OF THE DISTRICT COURT ASSIGNED TO THE SAID DISTRICT” were of such a fundamental nature, appearing on the face of the document, as to invalidate the warrant.
Counsel for the applicant contends that since the substance of the warrant is accepted by both parties as complying with the legislative framework, and having regard to the fact that the signatory appends the initials “PC” after his name – thereby, according to the applicant, making it clear that he was a Peace Commissioner and, more importantly, that he was not a District judge – on the case law, the inclusion of the legend is merely an error in form, which was not intended to mislead, and did not, in fact, mislead, and does not go to the substance of the warrant, or to its validity. Mr. McGrath, on behalf of the applicant, argues that he clearly comes within the ambit of the case law, whose extracts are set out above. Counsel for the applicant also relies on certain comments by Professor Walsh in his book on “Criminal Procedure”, which points out that, as has been said in the case of DPP v. Edgeworth, supra., not every error on the face of the warrant will render it void, but rather only those defects that go to the heart of jurisdiction to grant the warrant will have this effect.
Mr. Gillane, on behalf of the respondent, also relies on the case of DPP v. Edgeworth, supra., but also invokes the judgment of the learned Circuit Court judge in this case. He argues that the learned Circuit Court judge was correct when he made the following finding in dismissing the charges:
“Here I am faced with the situation that whilst it’s accepted by both parties that the person signing is a Peace Commissioner, he purports to sign a search warrant indicating that he is a judge of the District Court. He’s clearly not that. It would seem to me that this error on the face of the document is a fundamental error and taking the dicta in Simple Imports, it is not capable of being corrected by viva voce evidence. It simply does not show jurisdiction or authority. The man signing is either a judge of the District Court or he is not, and that can’t be corrected at this juncture, at this remove, it would seem. That therefore would suggest to me that the warrant in this instance has no valid authority. It is incorrectly signed by someone who incorrectly describes himself. For those reasons therefore having had careful regard to the various judgments that have been furnished to the court and the observations of Mr. Walsh in his text book, it would seem that this error is, on the face of the document, fundamental and cannot be corrected”.
Moreover, counsel for the respondent refers to a more recent academic publication, Bacik, “Criminal Procedure: Current Issues and Emerging Trends”, 2009, Firstlaw, in which it is suggested that legal authorisation to issue a search warrant in respect of private property, and especially a person’s home, must be interpreted strictly. In the present case it is submitted by counsel on behalf of the respondent, that the warrant used to search the applicant’s dwelling was not a valid warrant and therefore the search carried out was unlawful and in breach of the applicant’s constitutional rights. The Peace Commissioner invalidly purported to sign the search warrant as a District judge and the prosecution evidence, or its case against the respondent, flows from the mistakenly invalid execution of the warrant. There being a clear error on the face of the record, jurisdiction is not disclosed, and the warrant therefore cannot be declared lawful. The warrant is also misleading in that it conveys, on its face, to any person shown the warrant that it was authorised by a judicial authority, a District Court judge, whereas in fact this was not the case. The respondent relies on the following statement in Simple Imports Limited & Another v. The Revenue Commissioners, in which Keane, J., as he then was, stated:
“Search warrants, such as those issued in the present case, entitle police and other officers to enter the dwelling house or other property of a citizen, carry out searches and (in the present case) remove material which they find on the premises and, in the course of so doing, use such force as is necessary to gain admission and carry out the search and seizure authorised by the warrant. These are powers which the police and other authorities must enjoy in defined circumstances for the protection of society, but since they authorise the forcible invasion of a person’s property, the courts must always be concerned to ensure that the conditions imposed by the legislature before such powers can be validly exercised are strictly met … Under the Constitution, this principle is expressly recognised, in Article 40.5, in the case of the dwelling house of every citizen”. (emphasis added)
Conclusion
The foregoing case law suggests that the following principles in relation to search warrants, and the effect of errors in them, have emerged:
(a) Documents, such as search warrants, must be carefully prepared having regard to the fact that they entitle gardai or other authorised officers to enter the property of a citizen, and in the course of so doing, to use such force as may be necessary, both to gain admission and to carry out the search and seizure authorised by the warrant.
(b) This cautionary approach is particularly enjoined when the search warrant is in respect of the dwelling house of a citizen, in light of the recognition granted to such property under the Constitution;
(c) Although search warrants should be prepared carefully, not every error in such a warrant will, by virtue of the same, lead automatically to the invalidation of a warrant;
(d) In particular where the substance of the warrant, as opposed to its form, is not open to objection, the invalidation of the warrant will not necessarily ensue.
(e) The nature of the error, or omission, must be scrutinised by the courts to see whether it is of a fundamental nature, including an error going to jurisdiction. Several factors may be taken into account, including whether the error is a mere mis-description, whether it is likely to mislead, whether it undermines the apparent jurisdiction to issue it, according to the warrant on its face, and such matters, before the courts will find, in an appropriate case, that it should be considered invalid.
(f) It is not possible in relation to non-substantive errors, that is to say, errors which do not affect the substance of the legislative requirements found in the body of the warrant itself, to say that they will never lead to the invalidation of a search warrant, due to the wide variety and nature of errors which may occur.
Legislation authorises the issuing of a search warrant by the District Court, to be signed by the judge of the District Court assigned to the appropriate area. The warrant may, in general, only issue on foot of a judge assigned to a particular District Court area. The title therefore “Judge of the District Court assigned to the said District” has considerable import. Equally, pursuant to statutory authority, a Peace Commissioner may also issue a search warrant, but, in line with the case law, and having regard to the legislation concerning them, the warrant does not require the inclusion of the words “assigned to a district” with “Peace Commissioner”. Nevertheless, although each may issue a search warrant, these two parties are not interchangeable parties, District judges having specific legislative competence and particular jurisdiction to issue a warrant, and equally Peace Commissioners having a separate legislative authority to do so.
In addition, it is clear from the authorities, that the warrant is addressed not only to the garda to whom it has issued, but also to the person, or persons, thought to be residing, or who may be residing or present, in the premises in question, in this case a dwelling house where the respondent did, in fact, reside. Such a person is entitled to know and readily read or understand the authority upon which the warrant is issued. In the present case the warrant purported to issue from the District Court under the signature of a person who purported to be a judge of the District Court assigned to the relevant district, even if it is accepted no one was, in fact, mislead.
Equally, it is clear that in the case of The People (DPP) v. Edgeworth, supra., of considerable importance to the Supreme Court in ruling that the mis-description involved only the use of the heading “The District Court”, was the fact that the status of the person actually issuing the warrant was, as stated by Hardiman, J. in his judgment, “clear on its face”. This was because in that case the Peace Commissioner had deleted any suggestion that the status of the signatory was that of a judge of the District Court assigned to the district, and, in addition, the Peace Commissioner had made clear the precise nature of his status, and therefore the nature of his jurisdiction to issue the warrant, by signing it as a “Peace Commissioner”.
While it is said by counsel on behalf of the applicant in the present case, that the signature in the warrant included the letters “PC” after the signature, as a matter of fact it is unclear, even on viewing the warrant, that the letters in question are actually separate from the signature: nor do the letters lend themselves to being clearly identified as “PC”. In any event, even if they did lend themselves to being “PC” it cannot be concluded that a person viewing a warrant entitled, or headed, “The District Court” and seeing an illegible signature over the legend “JUDGE OF THE DISTRICT COURT ASSIGNED TO THE SAID DISTRICT” would, or could reasonably be expected to conclude, on the basis of seeing “PC” after such a signature, that the authority issuing the warrant is, in fact, a Peace Commissioner, or is anyone other than “A Judge of the District Court” of the appropriate district.
In the case of The People (DPP) v. Edgeworth, Hardiman, J., drew attention to the fact that “No special form seems to have been provided by the authorities for use when the application for a warrant is made to a Peace Commissioner and not to a Judge of the District Court. This is a regrettable omission but in my opinion is not such as invalidates a warrant in the form of the present one.” That comment was made in 2001, at least eight years before the judgment by the learned Circuit Court judge in the present proceedings, and seven years before the date of presentation of the search warrant to the Peace Commissioner on the 19th January, 2008. This is an entirely regrettable situation, which could have been easily avoided and could have been readily cured if the comment of the Supreme Court had been noted and acted upon by the provision of a suitable form for use by a Peace Commissioner. In Edgeworth, it is noteworthy that the finding that a warrant “in the form of the present one”, – which included the deletion of “Judge of the District Court, etc.” and the clear description “Peace Commissioner”, was not such a misleading error as to invalidate the search warrant. This constituted a careful comment, pointing out that the mistake in leaving in the title “District Court” was simply an error and not a breach of any condition or criterion imposed by statute. The status of the Peace Commissioner was clear on the face of the warrant and did not affect his jurisdiction or its validity. Accordingly such error as there was, did not invalidate a search warrant which was in accord with all specified requirements of the law.
On the law, this Court is satisfied that the learned Circuit Court judge was correct when he found that the error on the face of the search warrant document is a “fundamental error”, and it is so because, in contrast with the position in The People (DPP) v. Edgeworth, supra., the status of the party issuing the warrant, and therefore the jurisdiction to issue it, is claimed to be a judge of the District Court, and therefore discloses no proper jurisdiction in law, and is wholly misleading, particularly, when combined with the inclusion of the erroneous title “An Chuirt Duiche” and “The District Court” in the title of the search warrant.
In the foregoing circumstances, the dismissal of the application by the learned Circuit Court judge was correct in law, the application made pursuant to s.9 of the Criminal Justice Act, 1999 is refused, and the Order of the Circuit Court is affirmed
People (DPP) v Devlin
[2017] IECA 201
Mr. Justice Birmingham
1. On the 1st March, 2016, following a trial before the Special Criminal Court, the appellant was convicted of the offence of possession of explosives in suspicious circumstances contrary to s. 4 of the Explosive Substance Act 1883, as amended by s. 15(4) of the Offences Against the State Act 1998, and was subsequently sentenced to a term of six years imprisonment. He has appealed against that conviction.
Background
2. The background to the trial and the present appeal is to be found in events that occurred on 11th May, 2014 at Finnstown House Hotel and Resort in Lucan. On that occasion Number 144 “Golf Suite”, a chalet style structure, was searched by Gardaí pursuant to a warrant that had been issued in accordance with the provisions of s. 29 of the Offences Against the State Act, 1939, as amended. The Gardaí entered the premises at approximately 10.25 a.m. on Sunday, 11th March, 2014. The appellant was present in the apartment/chalet when the Gardaí entered and had been seen entering the premises minutes earlier. A large assortment of electronic items and most significantly 26 metres of detonator cord was found during the course of the search.
3. The detonator cord was hidden, wrapped in a towel inside a laptop case, located on a shelf within what was described as a “tallboy” unit. Within the laptop case there was a laptop and also a plug for a laptop. Fingerprint evidence connected the appellant with the screen of the laptop and DNA evidence provided a link to the plug for the laptop.
4. When the detonator cord was examined by personnel from the Technical Bureau it was found that the explosive substance Pentaerythritol tetranitrate (PETN) was located within the core of the cord. The cord had a bright orange label which said “Explos” with the balance of the word apparently torn off. The letters “Exp” were initially visible, and then when the label was unfurled the letters “Explos”. The label was torn with the loss of the letters “ive”. In the bedside locker was found a medical card, a library card and a bank card in the name of the appellant.
5. It was the prosecution case that the appellant was residing at Room 144 “Golf Suite” at that time. There was evidence before the Court that there had been a long-term booking in the name of “Joe Murphy” between 31st March, 2014 and 11th May, 2014. The appellant’s fingerprint was found on a newspaper located at 144 “Golf Suite” and also on the door handle.
6. Other items found during the search of the suite included:
(i.) a small remote controlled Quadcopter;
(ii.) a large white coloured remote control Quadcopter with a piece of timber attached to the plastic underside, two separate remote controls, a rucksack containing viewing goggles for a camera attached to one of the Quadcopters, batteries, tissues, a battery charger, duct-tape, spare blades for a Quadcopter, cable ties and wires;
(iii.) a smaller rucksack contained a Tesco bag which in turn contained disposable gloves, a red coloured dye, a plastic bag containing a roll of multi-core cable, a Conrad shopping bag containing a number of items including twin-channel touch contact memory switches, two packs of wires, a battery charger and a BC voltage supply, a second Conrad shopping bag containing items which included a miniature key switch, a mini relay, a model craft voltage supply, twin-channel switch, a USB cable, a micro and mini SD card, a Voltcraft battery charger, a Gortner receiver, two model craft server wiring looms, a USB adaptor in the plastic bag, a Maplin plastic bag containing items which included batteries, screwdrivers, glue, insulation tape, bell wire, bulb tester, roll of J-cloth and battery chargers;
(iv.) a second Maplin bag containing a black plastic project box, batteries, five glass test tubes wrapped in J-cloth and individually wrapped in cling film, a universal switch and two light-activated switches, a Stanley knife, long-nosed pliers and snips.
A drawer in a bedside locker contained a number of items, which included a soldering iron and solder, batteries, four bulbs, fishing line, a desk lamp, wire cutters and wire. Another contained a number of items including a multi-metre, a soldering iron, a phone charger, an A4 writing pad, a pen torch, a nail clippers and a pencil sharpener.
7. Some 24 grounds of appeal have been formulated but counsel on behalf of the appellant in his oral submissions has indicated that the appeal really boils down to a few fairly simple propositions and then proceeded to address arguments related to three core issues.
8. The first of these is a challenge to the s. 29 search warrant. Secondly there is a challenge to the DNA evidence that formed part of the case. Thirdly it is said that the Court erred in being satisfied beyond a reasonable doubt that the appellant was in possession of the explosives and that the appellant had the necessary knowledge that the explosives located in the apartment were in fact explosives.
The issue in relation to the s. 29 Warrant
9. To put the legal arguments that have been advanced in context it is necessary to say a little more about the circumstances in which the Gardaí entered the apartment, purporting to do so on foot of the authority of a s. 29 warrant. It was clear from the evidence of Detective Inspector Hanrahan, who is the member of An Garda Síochána in charge of the operation that was put in place at Finnstown House, that Gardaí were aware that Mr. Devlin was in occupation of a hotel apartment from 9th May, 2014. Detective Inspector Hanrahan was a long-serving member of the Special Detective Unit (SDU) and the presence of Mr. Devlin was a concern to him because he believed him to be linked to bomb making. Late on Saturday, 10th May, 2014 the Gardaí felt the situation altered very considerably. On that evening at about 11 p.m. a car, which it was established had been stolen earlier in the border area, was located in the car park at Finnstown House Hotel containing a large homemade explosive device. The Garda case was that at that point it became urgent for them to obtain a search warrant and be in a position to search the premises that they believed to have been occupied by Mr. Devlin. Detective Inspector Hanrahan made enquiries through the Bridewell Garda Station as was the established practice, and was told that a court would be available to deal with an application for a warrant at 10.30 a.m. or 11 a.m. on the Sunday morning. Detective Inspector Hanrahan did not wish to wait until then and decided to seek a warrant from a senior Garda officer who issued a warrant at approximately 3.30 a.m. However, the warrant was not immediately executed and was not executed in fact until approximately 10.25 a.m. on the morning of Sunday the 11th. It was executed minutes after Mr. Devlin was seen entering the premises.
10. The validity of the warrant is challenged essentially on two separate grounds and it is contended that the warrant should have been condemned by the Special Criminal Court and the evidence of what was found in the bedroom excluded. In summary, the validity of the warrant was challenged on the grounds that the statutory precondition for the issuing of a valid warrant by a Garda officer were not met. Secondly, and separately, it was said that the Chief Superintendent to whom the application was made and who was the officer who issued the warrant was not independent of the investigation as he was a first cousin of Detective Inspector Hanrahan who was in operational charge of the Garda operation and that the warrant should be condemned for this reason.
11. The statutory provision for the issuing of warrants by Garda officers is to be found in the Criminal Justice (Search Warrants) Act, 2012. Section 29 of the Offences Against the State Act, 1939 is amended by the substitution for that section of the section set out in s. 1 of the Criminal Justice (Search Warrants) Act, 2012. The relevant provisions are as follows:
“(3) Subject to subsections (4) and (5), if a member of the Garda Síochána not below the rank of superintendent is satisfied that there are reasonable grounds for suspecting that evidence of, or relating to, the commission of an offence to which this section applies is to be found in any place, the member may issue to a member of the Garda Síochána not below the rank of sergeant a warrant for the search of that place and any persons found at that place.
(4) A member of the Garda Síochána not below the rank of superintendant shall not issue a search warrant under this section unless he or she is satisfied—
(a) that the search warrant is necessary for the proper investigation of an offence to which this section applies, and
(b) that circumstances of urgency giving rise to the need for the immediate issue of the search warrant would render it impracticable to apply to a judge of the District Court under this section for the issue of the warrant.
(5) A member of the Garda Síochána not below the rank of superintendent may issue a search warrant under this section only if he or she is independent of the investigation of the offence in relation to which the search warrant is being sought.”
12. The appellant says three conditions must be in place before a warrant issued by a Garda officer would be valid: (a) it must be necessary for the proper investigation of the offence that the warrant be issued, (b) there must be circumstances of urgency, and (c) it must be impracticable to apply to a judge of the District Court. The appellant says that there were no circumstances of urgency in this case and says that it has not been established that it was impracticable to apply to a judge of the District Court in this case. The Director responds that the urgency was in seeking and obtaining a warrant, that once Gardaí are in possession of a warrant it would be a matter for their professional judgement when to execute the warrant. In this case the decision was taken to enter the suite minutes after the arrival there of Mr. Devlin.
13. The Court is slightly surprised that these arguments should have been advanced on behalf of the appellant. It is almost impossible to imagine a situation of greater urgency than that triggered by the discovery of a car bomb in a hotel car park. This country, as well as its neighbours, and indeed countries across the world, have seen the devastation that can be caused by terrorists with access to explosives. In this case Detective Inspector Hanrahan had made enquiries through the Bridewell Garda Station, as is the standard procedure, as to when a judge of the District Court would be available and was told it would be 10.30 or 11 o’clock on the Sunday morning. In the situation of extreme urgency that existed, he did not deem it practical to wait until then and so decided to invoke the statutory power to obtain a warrant from a Garda officer. The Court is quite satisfied that he was entitled to make the judgment that he did.
14. Detective Inspector Hanrahan was then criticised for bringing his application before Chief Superintendent O’Brien on the basis that the chief superintendent was a cousin of his and so could not be said to be independent. The trial court dealt with this issue as follows:
“There is no question as to his independence within the Gardaí because he had nothing to do with this operation, was unaware of it and had nothing to do with it since either. The only matter raised is the fact that he is a first cousin of Detective Inspector Hanrahan who applied for the warrant. We simply do not believe that this is a relevant consideration, in particular in light of the fact that being a fellow member of An Garda Síochána would be much more relevant and that is envisaged and allowed for in the Act.”
This Court would endorse the approach of the trial court. The statute provides that in particular circumstances a member of An Garda Síochána not below the rank of Superintendant may issue a warrant. However, the statute requires that the officer be independent of the investigation. Beyond any question Chief Superintendent O’Brien was independent of the investigation, knowing nothing about the operation at Finnstown House until contacted by Detective Inspector Hanrahan. That the Chief Superintendent and the Detective Inspector were cousins is quite irrelevant. In the circumstances that existed it is hard to imagine how any Garda officer presented with the information that was laid before Chief Superintendent O’Brien in the early hours of Sunday morning, 11th May, 2014, could or would have acted any differently. The Court therefore rejects the challenge to the warrant.
DNA Evidence
15. The challenge to the DNA evidence in the case was a significant aspect of the trial and has also been raised on the appeal. Before addressing the grounds of challenge it is worth noting that DNA was a much more significant aspect of the case at the time when the challenge was raised in the Special Criminal Court. At trial there was evidence in relation to the knot of a plastic bag found in a waste bin on Adamstown Ave near the back entrance to the hotel, and also on gloves found in the plastic bag in the bin on the same occasion. The prosecution had sought to rely on surveillance evidence to connect Mr. Devlin to the bin, to which they contended he had travelled by bike while subject to surveillance. Gardaí then had subsequently gone to the bin and retrieved a plastic bag and amongst the items found in the bag were plastic tubing which had been cut lengthways, plastic fibres which were brown and white in colour, a J-cloth, plastic gloves and a newspaper. However, the evidence in relation to the placing of a plastic bag in a bin on Adamstown Ave by Mr. Devlin was one of two elements of the prosecution case that was specifically rejected by the Special Criminal Court and did not form part of the Court’s consideration of the evidence.
16. In the light of the Court’s ruling, the only DNA evidence that remained relevant was that relating to the plug which was in the laptop case. Given that the prosecution was in a position to link Mr. Devlin to the laptop which was in the case by way of a fingerprint, the plug evidence was of marginal significance at best.
17. The challenge to the DNA evidence arose from the evidence of Sergeant Birchall. He gave evidence on 9th February, 2016, day 4 of the trial. On 11th May, 2014 Sergeant Birchall was acting as member in charge at Lucan Garda Station where Mr. Devlin was detained after his arrest. He gave evidence that he was informed by Detective Sergeant Boyce that Detective Sergeant Maguire had authorised the taking of Mr. Devlin’s fingerprints, photographs, explosive residue swabs and also his DNA. He said that he informed Mr. Devlin of the fact that the authorisation had been given. He said that in respect of the authorisation that had been given by Detective Sergeant Maguire regarding the taking of a DNA sample, that at around 12.15 p.m. on the day in question he brought Mr. Devlin to the “privacy room” and informed him that the authorisation had been given and the reason for the authorisation was to “either prove or disprove that he had been involved in the offence for which he had been arrested: namely the possession of explosive substances, unlawful possession of an explosive substance.” Asked by counsel whether he had informed the appellant of what use would be made of any results, he responded “from the results, they were used to prove or disprove the fact that he had been arrested for, namely the possession of explosives”. He then gave evidence that he took a buccal swab.
18. On behalf of the appellant it is argued that what Sergeant Birchall said was insufficient to comply with the provisions of s. 2(6) of the Criminal Justice (Forensic Evidence) Act, 1990. The section provides:
“(6) Before a member of the Garda Síochána takes, or causes to be taken, a sample under subsection (1) of this section, or seeks the consent of the person from whom the sample is required to the taking of such a sample, the member shall inform the person—
(a) of the nature of the offence in which it is suspected that that person has been involved,
(b) that an authorisation has been given under subsection (4) (a) of this section and of the grounds on which it has been given, and
(c) that the results of any tests on the sample may be given in evidence in any proceedings.”
The appellant says that nothing was said about the results of any tests being given in evidence in any court proceedings. The respondent accepts that there was no specific reference to court proceedings, however on her behalf it is submitted that the thrust of the obligation was complied with in that it is only in court that Mr. Devlin could be proved to be guilty of the offence of possession of explosives.
19. The Special Criminal Court dealt with the matter as follows:
“The Act requires that he be told that the samples could be used in evidence. There is no requirement that a particular formula should be used. It is very clear that he was told that they could be used to prove or disprove something. How does one prove or disprove something other than by due process in court.
It was very clear to him and we are satisfied that the statutory requirement was properly complied with in that connection.”
This Court feels that the approach of the Special Criminal Court was a proper one and a realistic one. Accordingly, the Court is not prepared to uphold the challenge to the admissibility of the DNA evidence based on the information that was provided to Mr. Devlin while in custody. We turn then to the argument that the evidence should have been excluded as hearsay and specifically that the evidence of Dr. Connolly, the forensic scientist, should have been excluded as hearsay. The argument was made that there were other people who were involved in the creation of the DNA profile, and the exercise also involved a computer and there was no evidence as to the method of operation of the computer or of what was inputted into the computer. The Court sees this argument as in reality more one relating to the chain of evidence rather than an argument grounded on the hearsay rule. However, whatever way the argument is formulated, the Court does not see it as an argument of substance. Dr. Connolly’s evidence established that DNA matches were established in the State Laboratory. Accordingly, the Court rejects the challenge to the admissibility of the DNA evidence, while again pointing out that the DNA evidence is now much less significant than was believed to be the case when the debate took place at trial because of the exclusion of the Adamstown Lane evidence.
Possession of the Explosives
20. The third ground argued related to the question of possession. The appellant contends that the evidence in the case was insufficient to allow the Court conclude that the prosecution had proved beyond a reasonable doubt that Mr. Devlin was in possession of the explosives found in the suite. It is said that the evidence was insufficient to establish that he knew the object wrapped in the towel in the laptop case which was on the third shelf of the “tallboy” unit was in the suite or that he knew that the object that was in the laptop case in the suite was an explosive substance. In assessing this issue it is necessary to recall once more that the Special Criminal Court rejected two aspects of the prosecution case, the evidence in relation to the waste bin on Adamstown Avenue and also rejected the suggestion that inferences could be drawn from the attitude taken by Mr. Devlin at interviews. At a late stage of the trial the prosecution conceded that it was not an appropriate case for the drawing of inferences.
21. The appellant says that the Special Criminal Court erred in equating occupation of the suite with possession of the PETN. The evidence at trial did not establish any forensic link between the appellant and the PETN found in the laptop case located on the third shelf of the “tallboy”. The appellant says that while there were a number of items in the suite which appeared to connect the appellant to it, it was not established that Mr. Devlin was actually in occupation but in any event occupation was not to be equated with knowledge of the PETN. The explosives in the case were contained within three rolls of white cord, which were packaged separately, wrapped in a towel and then secured in the laptop case. It is pointed out that there was no evidence that Mr. Devlin was carrying a laptop case as he made his way to the suite minutes before it was entered by the Gardaí. The explosives were hidden. Moreover they had the appearance of white electrical cord and were not easily recognisable as explosives. It is pointed out that only the letters “Exp” of the partial word “Explos” were visible and many words, apart from the word “Explosives” start with those letters including the word “Expiry”.
22. The respondent argues that there was ample evidence to support the conclusions of the trial court. The evidence adduced established a clear connection between the appellant and the suite which had been booked in a false name from 31st March and was in continuous occupation until 10th May, 2014. Documentation in the name of the appellant, including a current passport, a social welfare card and a social welfare receipt in respect of a payment for job seekers allowance relevant to the period 30th April, 2014 to 6th May, 2014 were located in the room. In passing it may be noted that the judgment of the Special Criminal Court refers to a driving license rather than a passport, this is an error but an error without consequences. It should, though, be noted that the passport was on the top shelf of the “tallboy” unit where the laptop case was.
23. This was essentially a circumstantial evidence case. The explosives were found in a hotel suite which had been in continuous occupation since 31st March, 2014. There were a number of links between the appellant and the suite, the appellant was linked to the laptop case in which the explosives were located, while not referred to specifically in the ruling and judgment of the Court there were a number of other items located in the suite which would not be usually found in a hotel bedroom such as quadcopters, cable ties and wires, disposable gloves, glass test tubes and so on. In the view of this Court, even with the evidence relating to Adamstown Lane and the drawing of inferences excluded, there remained ample evidence to support the findings of the trial court. The Court therefore rejects this and the other grounds of appeal that have been argued. The Court has also had regard to the contents of the notice of appeal and to the written submissions filed. The Court is not persuaded that the trial was in any way unsatisfactory or that the decision is in any way unsafe. The Court will therefore dismiss the appeal.
DPP v Mallon
[2011] IECCA 29
Judgment delivered by O’Donnell J. on the 3rd day of March 2011.
1 On the 29th November, 2006, Garda Kevin Lawless swore an information on oath before peace commissioner Patrick Morton seeking a search warrant pursuant to s.26 of the Misuse of Drugs Act 1977, as amended, in respect of premises described as “4 Marrowbone Close, Dublin 8”. After inquiry by the peace commissioner, a warrant was issued. The warrant was in standard printed form with blanks for the name of the informant, the nature of the controlled drug, the address of the premises, and a blank for the signature of the peace commissioner or District Justice as appropriate. The form also provided, at certain points, for options and invited deletion of the option considered inappropriate.
In this case, both the information and the search warrant issued pursuant to it were completed in all material respects. The executing commissioner had jurisdiction to grant such a warrant being a peace commissioner assigned to the County of Dublin, and the warrant correctly recited his jurisdiction. It is clear that the statutory preconditions to the grant of a warrant under s.26, namely that the peace commissioner was satisfied by information on oath from a member of An Garda Síochána that there was reasonable ground for suspecting that a person who was in possession of a controlled drug on premises, were satisfied. Furthermore, the warrant correctly recorded that these statutory preconditions had been established. The warrant was executed without objection and diamorphine to the value of €300,000 was found. As a result, the accused was charged with three offences under the Misuse of Drugs Act 1977, as amended. However, before the trial proper commenced, the defence invoked the procedure under s.4(E) of the Criminal Procedure Act 1967, as inserted by s.9 of the Criminal Justice Act 1999. That procedure permits the accused, once returned for trial, to apply to the trial court for a dismissal of one or more of the charges. Significantly, however, subsection 7 provides for an appeal by the prosecutor from any such dismissal, and in the case of a successful appeal the trial of the accused may proceed as if the charge had never been dismissed.
2 The ground upon which this accused applied for a dismissal of all charges was simple indeed. The information on the warrant described the premises as “4 Marrowbone Close, Dublin 8”. However the correct address of the premises searched, and in which the diamorphine was found, was “4 Marrowbone Lane Close, Dublin 8” (emphasis added). It was common case that there was a 4 Marrowbone Lane Close in Dublin 8 (indeed that was the premises searched) but there was no “Marrowbone Close” and consequently no 4 Marrowbone Close in Dublin 8 or elsewhere. This point was heavily relied on by the defence, which was in a position to call evidence from the Ordnance Survey to prove that there was no street called “Marrowbone Close” in Dublin 8 or indeed anywhere in Dublin. However, that fact was agreed by the prosecution and it was not necessary to tender the evidence. On the basis of these agreed facts, it was argued on behalf of the accused that the warrant had been issued for a premises which did not exist, and could not, therefore, authorise the search of the premises at 4 Marrowbone Lane Close, which assuredly did exist. It was accepted that this error was entirely innocent, and that Garda Lawless believed that the address of the premises was indeed 4 Marrowbone Close. That was the address he gave in the printed information and in his sworn evidence, and therefore the address for which the warrant was issued. The premises which was searched, was the premises he intended to search, and which he described as 4 Marrowbone Close. That, it was argued, made no difference. The warrant, it was said, was not valid, or at least not valid for 4 Marrowbone Lane Close, the premises actually searched. If the warrant was invalid, the search was illegal. The search was therefore a breach of the constitutional right to inviolability of the dwelling home, which could only be entered in accordance with law. The entry was deliberate, and therefore following the decision of the Supreme Court in The People (Director of Public Prosecutions) v Kenny [1990] 2 IR 110 it constituted a deliberate and conscious violation to the breach of the constitutional right of the citizen, and accordingly the evidence obtained must be excluded in the absence of any extraordinary excusing circumstances. Once that evidence was excluded, the charge it was said must be dismissed.
3 The application for dismissal was heard by an experienced judge of the Circuit Court. He remarked that the net point raised was one of a series of this type of application in relation to warrants under the Misuse of Drugs Act 1977, as amended, which presented on occasions with a variety of alleged defects. Because he was clearly familiar with the area, the submissions and the ruling proceeded expeditiously. The trial judge accurately encapsulated the prosecution argument that the Court of Criminal Appeal decision in The People (DPP) v Balfe [1998] 4 IR 50 was authority for the proposition that errors did not necessarily invalidate the warrant or make it ineffective for the purposes of the admission of evidence obtained thereunder. On the other hand, the defence argument was that Balfe no longer represented the law. It was argued that it was inconsistent with the Central Criminal Court decision of Director of Public Prosecutions v Henry Dunne [1994] 2 IR 537, a decision which had then been approved in the Supreme Court decision of The People (Director of Public Prosecutions) v Edgeworth [2001] 2 IR 131. The submissions proceeded almost in shorthand. There is no doubt that the trial judge accurately identified the issues raised between the parties. With evident reluctance, the trial judge acceded to the defence application. The reasoning of the trial judge, and his observations on the state of the law are worth quoting in some detail. First, he observed:-
“Undoubtedly, on its face, the warrant doesn’t cover the premises in question but nonetheless I am satisfied that these were the premises that Garda Lawless had in mind. I am satisfied that he made a proper application and I am satisfied that the Peace Commissioner had the authority to issue the warrant because he’s only acting in response to the application that is made. That is what the applicant had in mind and that is what the issuing authority was responding to. So I am satisfied that he did, in fact, desire to issue a warrant in respect of the premises in respect of which Garda Lawless was applying and I am satisfied that those premises were the premises which were ultimately searched on foot of the warrant. There was undoubtedly a misdescription of the premises on the face of the warrant.”
“As regards this particular warrant, I regard myself as bound by Henry Dunne and by the Edgeworth decision. I don’t relish doing this. I think, in this case, an exclusionary type rule is a nonsense. It doesn’t punish the police, who are not in need of punishment in this case because it was an inadvertent slip of a type we all make in our daily lives. This seems to me to be too high a price for society to have to pay for omissions of this kind. It seems to me that at the time that the exclusionary rule was trimmed so as to ensure that police misconduct or impropriety is punished but that properly explained inadvertence is not. So I think I find myself in the invidious position; if I could and felt free to apply the Balfe decision, I would and would have no difficulty in doing so on the basis that it is precisely the kind of warrant that the Court of Criminal Appeal had in mind and that is a valid warrant with a patent omission or a mistake on its face. On the other hand, as I say, I have the decision of Mr Justice Carney [DPP v Henry Dunne] which states that these warrants must be unambiguous and that they cannot – words cannot be supplied or omitted or read in or read out of the picture. So reading the warrant literally, it doesn’t give authority to search these premises without supplying the word Lane. I am not entitled to do that on the basis of the High Court decision as subsequently approved by the Supreme Court. The Supreme Court is the ultimate authority and arbiter of these matters, and on that basis, without any relish whatsoever, I feel constrained to hold that the warrant is invalid and that is the position.”
4 Most serious criminal cases and in particular, most serious drugs cases in which search warrants play a central part, are heard in the Circuit Court. Accordingly, this frank expression of dissatisfaction on the part of an experienced trial judge is noteworthy in its own terms. In so much as this general area has received any critical consideration, then most of the attention, and criticism, has been directed towards the outcome of the Supreme Court decision of DPP v Kenny [1990] 2 IR 110 in which, by a slender majority, the Supreme Court held that a deliberate and conscious breach of the constitutional right occurred when the act breaching the right was deliberate regardless of whether or not the actor intended to breach the constitutional right of the citizen. The decision in Kenny involved a search of dwelling home, the inviolability of which is protected by Article 40.5 of the Constitution. However, that guarantee is not absolute: the guarantee is against forcible entry save in accordance with law. Entry authorised by warrant is entry in accordance with the law. If however a warrant is invalid, then any subsequent entry, even if peaceful will by definition not be in accordance with law. Since any entry on foot of a defective warrant will be intentional, then the result mandated by Kenny is that any evidence obtained on foot of that search must be excluded in a subsequent trial. The result is that any illegality, however trivial, becomes an unconstitutionality and results in an automatic exclusion of evidence. The qualification that any such evidence could nevertheless be admitted if the breach of the constitutional rights of the citizen is justified by extraordinary excusing circumstances is of little practical impact in the case of a defective search warrant, since the concept of extraordinary excusing circumstances contemplates an advertent breach of the rights of the citizen justified by the exigency of the circumstances, such as the peril of an individual or the imminent destruction of evidence . Almost by definition errors in warrants will not be advertent. Accordingly in the case of search warrants, error leads to invalidity of the warrant and then to illegality of the search and thus unconstitutionality, and almost inevitable exclusion of evidence. While this type of circumstance arises most obviously in the case of searches of a dwelling home, subsequent decisions and in particular Simple Imports v Revenue Commissioners [2000] 2 IR 243 and The People (DPP) v McGoldrick [2005] 3 IR 123, show that the analysis is not limited to dwelling homes, and may apply in the case of commercial premises.
5 The remorseless logic of the Kenny decision leading to the automatic exclusion of evidence sometimes as a result of quite trivial errors, has been the subject of critical comment, most notably by the former Chief Justice Keane C.J. in the foreword to McGrath, Evidence, (Dublin: Roundhall Press, 2005) and by Charleton, J. ( himself a distinguished author in the field of criminal law ) in the High Court decision of Director of Public Prosecutions v Cash [2007] IEHC 108, and that dissatisfaction is perhaps reflected in the comments of the trial judge here. However, this case does not raise the question of the admissibility of evidence obtained subsequent to an illegal and therefore, unconstitutional search. Instead it raised a logically anterior issue: in what circumstances will a warrant be considered ineffective, or invalid so as to give rise to the argument that evidence obtained should be excluded?
6 This is an important issue, all the more so because the consequence of any ineffectiveness or invalidity is the almost certain exclusion of the evidence in a subsequent trial. As the trial judge’s ruling here shows, however, the law, even in relation to the apparently technical question of the validity of a search warrant, is far from clear. It is easy to sympathise with any trial judge confronted with the range of judgments on defective warrants which represent the current corpus of Irish law, and which perhaps, deserve the criticism applied by Tennyson to the 19th century law of England, quoted by Hardiman, J. in O’Keefe v Hickey [2009] 2 IR 302, at p. 334:
“… the lawless science of our law-
The codeless myriad of precedent,
The wilderness of single instances.”
7 It is apparent that the trial judge here very properly sought to identify the current state of Irish law and in particular, the import of those decisions which were binding upon him. Accordingly, it is necessary to carefully review the cases which are both numerous, and not easy to reconcile.
8 The starting point for the modern Irish law on search warrants is the famous case of The People (AG) v O’Brien [1965] IR 142. At first sight, it might appear surprising that this case has any relevance to the question of the validity or effectiveness of the search warrant, since the starting point of that case was the determination in the Circuit Court that the search warrant for 118 Captain’s Road Crumlin was invalid. However, as will become apparent, a critical question in the subsequent case law is whether or not the decision in O’Brien was overruled by a subsequent Supreme Court decision in The People (DPP) v Kenny [1990] 2 IR 110. Furthermore, the statement by the Circuit Court in O’Brien that the warrant in that case was invalid itself masks a distinction which may be of importance. Presumably, the warrant, at least on its face, was perfectly valid for 118 Cashel Road, Crumlin, and would have authorised entry for that premises. Furthermore, it had been validly issued. It was perhaps at best ineffective to secure entry to 118 Captain’s Road albeit, that entry was effected and a search carried out.
9 The core facts of O’Brien are, or ought to be, well known to every Irish law student. The Gardaí had information that stolen goods were at a premises and a warrant was obtained. Unfortunately, through a mix up, the warrant was granted in respect of 118 Cashel Road, Crumlin, when the premises which the gardaí intended to search and to obtain a warrant in respect of (and indeed which were in fact searched) were 118 Captain’s Road Crumlin. As it happens, there is both a Cashel Road and Captain’s Road in Crumlin and both roads have a premises with the number 118. There had been a simple mix up. There was no question of bad faith, either in obtaining or executing the warrant. In the Circuit Court, the evidence was admitted and that decision was upheld in the Court of Criminal Appeal. Two issues were however certified for appeal to the Supreme Court under s.29 of the Courts of Justice Act 1924. The first was that the evidence had been obtained from premises while the members of the gardaí were not in possession of a valid warrant required by law authorising the search of the said house and the taking possession of the property. The second was that that evidence had been obtained in direct violation of Article 40.5 of Bunreacht na hÉireann.
Sometimes however the very familiarity of a decision can hinder its understanding. Since one of the issues in this case is what was decided by the O’Brien case, it is necessary to look at it afresh. In the first place, it is important to identify the background against which the decision was decided. At the time the O’Brien case was argued, there was a current and active debate in common law countries as to the question of the admissibility of illegally obtained evidence. All common law countries adopted a pragmatic approach to the question of admissibility of evidence. It was the function of a court to decide the case before it by reference to all the evidence that was available and any question of impropriety or illegality was strictly speaking, a collateral issue. This was the position which had been then recently reaffirmed by the Privy Council in the decision in Kuruma v The Queen [1955] AC 197.
10 At the other extreme from Kuruma, was the approach of the United States Supreme Court to evidence obtained in breach of the Fourth Amendment guarantee against unreasonable searches and seizures. In Mapp v Ohio (1960) 367 US 643 (which had been decided after the argument in O’Brien but before the decision was delivered) the United States Supreme Court decided that an absolute exclusionary rule which had hitherto only applied in a relatively small number of federal proceedings, was also applicable to state courts under the Fourteenth Amendment. In the event it is clear that the Supreme Court in O’Brien adopted a position between the two extremes identified by Kuruma and Mapp.
11 O’Brien produced two thoughtful and learned judgments. The majority judgment was delivered by Kingsmill Moore J. with whom Lavery and Budd JJ. agreed. A separate judgment was delivered by Walsh J. with which O’Dalaigh C.J. agreed. The fact that the Court divided has tended to obscure what the Court – collectively – decided. For present purposes, the most striking thing about O’Brien is something rarely acknowledged in subsequent decisions and commentary. The Court was unanimous as to the outcome of the case. The appeal was rejected and the evidence obtained in 118 Captain’s Road on foot of a warrant addressed to 118 Cashel Road was held to have been correctly admitted. Indeed some members of the Court expressed their conclusions quite trenchantly. Any other conclusion, it was said, would have been absurd. Lavery J., who presided, doubted that the case raised a sufficiently serious issue to justify a decision on the question of the admissibility of the illegally obtained evidence. He went on at p. 148:
“If a judge were to hold inadmissible the evidence in question in this case, or in any comparable case, his ruling would, in my opinion, be wrong to the point of absurdity and would bring the administration of the law into well-deserved contempt.”
12 It is also arguable that there was very little difference as to the route by which the different members of the Court reached this conclusion. For Walsh J., at p. 170, although there had been a violation of the constitutional right of inviolability of the dwelling home, save in accordance with the law and protected by Article 40.5 of the Constitution, that violation was not deliberate and accordingly:-
“It follows therefore that evidence obtained without a deliberate and conscious violation of the accused’s constitutional rights is not excludable by reason only of the violation of his constitutional right.”
With that conclusion, Kingsmill Moore J. expressly agreed, save only that consistent with his view, that each case had to be decided by the application of a discretion. It could not be said that the evidence would always be admitted but normally it should be. Thus, he concluded at p. 162 of his judgment in clear terms, and in agreement with Walsh, J. that:-
“This case is not one of a deliberate and conscious violation, but of a purely accidental and unintentional infringement of the Constitution. In such cases, as Mr Justice Walsh indicates, the evidence normally should not be excluded.”
13 In the aftermath of O’Brien it seemed clear that the fact that there was a violation of the constitutional right did not determine the question of the admissibility of evidence. Put simply, there were excusable breaches and there were those which were inexcusable.
14 It is unfortunate, however, that the further development of this area of law occurred not in the field exemplified by O’Brien of defects in search warrants, but rather in the area of the admissibility of statements obtained from suspects in detention. This was an issue which occupied the Courts during a highly charged period in our history when the threat and reality of violence from subversive organisations was considerable. In a number of cases before the Courts in the 1970s and the 1980s, suspects had been detained under the provisions of s.30 of the Offences Against the State Act 1939 beyond the expiry of either the initial period or the extended period permitted under that legislation; for example, in circumstances where the suspect had begun to make an inculpatory statement or because the gardaí had simply not adverted to the expiry of the period. In such cases, the courts received evidence from senior garda officers maintaining that they had no intention to violate the constitutional rights of the citizen. It became apparent that the essentially subjective test posed by the concept of “deliberate and conscious breach” was not necessarily an adequate test to deal with cases of professed and perhaps inexcusable ignorance of the rights of a citizen. In most cases, the courts were able to hold either that a relevant statement was made during a lawful period of detention, or that there was indeed an intentional breach, or that at a minimum, the prosecution had not discharged the onus of showing that a statement had not been produced by a deliberate and conscious breach of the constitutional rights of the citizen. But one argument which was advanced by some members of the Supreme Court, was to contend that the requirement of a deliberate and conscious breach was satisfied where the act breaching the right was itself deliberate, whether or not there was any consciousness or intent thereby to violate the constitutional right deliberately. At the price of some linguistic credibility perhaps, this formulation maintained a distinction between the violations of the Constitution which were inexcusable, and those which could be excused, such as where there was true and innocent inadvertence to the fact that the period had elapsed either because a clock was wrong, or where there was an excusable error in noting the commencement of the period of detention. Until 1990, however, that formulation had never been endorsed by a majority of the Supreme Court, and indeed had been rejected in The People (DPP) v Shaw [1982] 1 IR 1. It is a further complication of this area of law, that when this argument did achieve the acceptance of a bare majority of the Supreme Court, it did so not in the field of contested statements, but rather in the area of allegations of invalidity of warrants to which, it was arguably ill suited, since the act of searching would always be advertent and an invalidity in the warrant would lead automatically to illegality, and thereby to unconstitutionality and exclusion of the evidence, and by default, therefore, the adoption of an absolute exclusionary rule at least in the case of searches. This however, is not the place to debate the merits of this reasoning. It is however necessary to understand what was decided in Kenny and in particular how that dealt with the decision in O’Brien.
15 The People (DPP) v Kenny [1990] 2 IR 110 concerned a warrant pursuant to s.26 of the Misuse of Drugs Act 1977, as amended. The narrow but important point on the validity of the warrant that arose in Kenny, was one that had already been debated in Byrne v Grey [1988] IR 31, which had itself been influenced by the landmark case of R v Inland Revenue Commissioners ex parte Rossminster Ltd [1980] AC 952. The point taken in each of these cases (unsuccessfully in Rossminster but successfully in Byrne v Grey and Kenny), was that a statutory precondition to the jurisdiction of a peace commissioner to grant a search warrant had not been satisfied, either on the face of the warrant, or indeed on the facts of the case on the evidence adduced. Section 26 requires that the issuer of a search warrant (whether District Justice or Peace Commissioner) be satisfied by information on oath of a member of An Garda Síochána that there was reasonable ground for suspecting that a person is in possession of a controlled drug on the named premises. The warrant in Kenny was in a standard form and provided merely that the undersigned peace commissioner being satisfied on the information of the garda, granted the warrant. The warrant did not however state that the peace commissioner was himself satisfied there was a reasonable ground for suspecting the possession of a drug. Furthermore, the evidence in the case showed that the peace commissioner had not made any inquiry as to the nature of the garda’s belief and, therefore, could not have been satisfied himself that there was a reasonable ground for suspecting the possession of the drug. In narrow but simple terms, both the evidence and the warrant showed that the garda had grounds for suspecting the possession of a drug, but not that the peace commissioner was satisfied that there was a reasonable ground for suspecting that a person was in possession of a controlled drug in the named premises. Since the statutory precondition had not been satisfied, the peace commissioner did not have jurisdiction to issue the warrant and the warrant was bad.
16 In one sense, the point raised in Kenny (and indeed Byrne v Grey) could be described as a defect in the warrant, but in another sense it was much more fundamental than the type of misdescription, error in transcription or typographical error such as that which arose in O’Brien. In O’Brien, the peace commissioner had jurisdiction to issue the warrant, and the warrant on its face was entirely valid, and would again, at least on its face, have authorised entry and search of 118 Cashel Road. In Kenny however, once it was established that the statutory requirements had not been satisfied, there was no jurisdiction to issue any warrant and the warrant was not merely defective, it was wholly invalid. In the judgment of the Court of Criminal Appeal in Kenny (McCarthy, O’Hanlon and Lardner J.J.) it was held that the warrant was invalid. The Court directed further argument as to the consequence of this invalidity and in a careful judgment reviewing the authorities, delivered by O’Hanlon, J., it was concluded that the admissibility of the evidence was a matter for the discretion of the trial court. In the circumstances, the correct decision for a trial judge would have been to admit the evidence. Furthermore, the concept of extraordinary excusing circumstances could only be considered when the Court was of the view that a deliberate and conscious violation of the constitutional rights had taken place. That was not the case here. The application was refused but the Court also granted a certificate pursuant to s.29 of the Courts of Justice Act 1924.
17 On appeal to the Supreme Court, the Court, by a majority of three to two, allowed the appeal, refused to follow the majority judgment in the relatively recent case of The People (Director of Public Prosecutions) v Shaw [1982] 1 IR 1, preferring the minority judgment of Walsh J. in that case, and concluded that in deciding whether the violation of a constitutional right was carried out consciously and deliberately, the test was whether the act complained of was conscious or deliberate and it was immaterial whether the actor knew that what he was doing was in breach of the constitutional rights of the citizen. The merits of that analysis are a matter for another day if the issue should ever be raised in an appropriate fashion before the Supreme Court. For present purposes however it becomes important to understand what Kenny said, and decided about O’Brien.
18 One simple view advanced by the Respondent on this appeal with admirable force on this appeal, was that O’Brien no longer represented the law and had been overruled by Kenny. O’Brien had decided that the evidence had not been obtained by deliberate and conscious breach of the constitutional rights of the citizen. Kenny had decided that any search on an invalid warrant was a deliberate and conscious breach and that absent extraordinary circumstances, the evidence must be excluded. This is undoubtedly a plausible view. But it has a number of problems. If it is correct, then the majority in Kenny overruled both the reasoning and the result in O’Brien, and adopted in effect an absolute exclusionary rule expressly disapproved of by the entire Supreme Court in that case, and leading to the inadmissibility of evidence in circumstances which had been described by one member of the Court as being wrong to the point of absurdity and bringing the administration of law into a well-deserved contempt. Such a dramatic volte-face is by no means impossible, but O’Brien is a venerable decision of the Supreme Court, and there are only limited circumstances in which that Court will depart from and overrule its prior decisions. If the argument for the respondent is correct however, the majority decision in Kenny not only overruled the result in O’Brien, but did so sub silentio.
An alternative view is to apply well-worn if sometimes neglected principles of the interpretation of judgments. On this view, the critical fact is that the decision in O’Brien, (a decision which was expressly adverted to in Kenny), was clearly left intact by the judgment in Kenny. Indeed, the headnote of that decision, records O’Brien as being “followed”. If the decision in O’Brien has not been overruled by Kenny, then that can only mean that the result of that case is still correct in law and consequently that there are certain defects in warrants which will not result in the inadmissibility of evidence obtained thereunder.
19 On one view, it was not necessary for the trial court here, or indeed this Court, to seek to choose between these competing views of the impact of Kenny upon O’Brien. That is because in Director of Public Prosecutions v Balfe [1998] 4 IR 50, the Court of Criminal Appeal opted for the second interpretation of Kenny. Furthermore on the same view, it may be said that whether or not Balfe itself is correct in this reading of Kenny, is no longer important, since the proposition which Balfe drew from the competing positions and applied in that case, namely that some errors will not invalidate a warrant, is one that has now been accepted and endorsed in subsequent decisions including decisions of the Supreme Court.
20 However, this entire area is so complex, that it is not possible, or at least desirable, to resolve the case on that basis alone. Indeed, before considering the decision in Balfe, and the difficulty the trial judge had with it, it is necessary to consider a decision of the Central Criminal Court which predates it. Director of Public Prosecutions v Henry Dunne [1994] 2 IR 537, is a short but important case. It too concerned a warrant under s.26 of the Misuse of Drugs Act 1977 (as amended). The case was a consultative case stated from the District Court. The error in the warrant relied upon by the defendant was that the standard form provided for alternatives to be struck out and blanks to be filled in as appropriate. One portion provided that the alleged drug was “on any premises or other land”. In this case, the form had been completed but the words “on the premises” had been deleted so that the operative part of the sentence now read that there was “reasonable ground for suspecting that a person is in possession in contravention of the Misuse of Drugs Acts 1977 and 1984 of controlled drugs namely cannabis resin, cocaine diamorphine …. and such other drugs … other lands at 26 Rutland Avenue, Dolphin’s Barn, Dublin 8”. In a short judgment, Carney J. referred to Article 40.5 of the Constitution and the defendant’s argument that the warrant did not contain an averment which was required by s.26, namely that drugs were on any premises, or indeed on the particular premises and that such failure was fatal to the legal validity of the warrant. The prosecution’s argument was that the striking out of the words “on the premises” was clearly inadvertent and should be excused as a slip. Carney J. said at p. 540:
“The constitutional protection given in Article 40, s.5 of the Constitution in relation to the inviolability of the dwelling house is one of the most important, clear and unqualified protections given by the Constitution to the citizen. If it is to be set aside by a printed form issued by a non-judicial personage it would appear to me to be essential that that form should be in clear, complete, accurate and unambiguous terms. It does not seem to me to be acceptable that the prosecuting authority can place reliance on words crossed out by asserting that that was an inadvertence or a slip. Such an approach would facilitate the warrant becoming an empty formula.
“Reading this warrant many times I cannot make sense of it in terms of the English language without placing reliance on the words which had been crossed out. Accordingly, I cannot find it to be an effective authority to breach the constitutional inviolability of the defendant’s dwelling house.”
21 Dunne is undoubtedly strict in its approach to the interpretation of warrants and as the trial judge here observed, it was approved by the Supreme Court in Edgeworth. It is notable, however, that the approach taken by Carney J. was not that any error invalidated a warrant, but rather this error, which related to a requirement of the statute, had the effect that the warrant could not be read to make sense, and the warrant was thus invalid.
22 Dunne was considered in the decision of the Court of Criminal Appeal in Director of Public Prosecutions v Balfe [1998] 4 IR 50 (Murphy, Lavan and Budd J.J.). That case concerned a warrant issued under s.42 of the Larceny Act 1916. Like Dunne, a copy of the warrant was helpfully attached to the judgment. At first glance, the warrant contained more defects than the warrant in Dunne. First, there had been a manual alteration to the warrant relating to the number of the premises. The information had related to “5 Forest Hills, Rathcoole” while the warrant had been amended from 5 to 34 so as to read “34 Forest Hills, Rathcoole” which was the address of the appellant, and also the address searched. Second, the standard form of the warrant also provided for the deletion of one or more of the options in the phrase “in his custody * or possession * or on his premises at”. No option was selected. Finally, and perhaps most significantly, the property in question, namely a video player, CD and television, had been specified in the information, but the portion of the warrant where such property could be specified had been left blank so that the operative portion of the warrant read:-
“… that there is reasonable cause to believe that Eddie Balfe has in his custody * or possession or * on his premises at 34 Forest Hills Rathcoole property, to wit: with respect to which an offence against the Larceny Act 1916 has been committed.”
In passing it might be noted that the image of the warrant reproduced in the Reports does not appear to contain a signature of the District Judge, but since this aspect does was not referred to in argument or in the judgment, it seems then that may be a consequence of the photo copying. Certainly the case must be approached on the basis of only those defects identified and discussed in the judgment.
23 In the Court of Criminal Appeal there was more extensive reference to authority than appears to have occurred in Dunne. The Court was referred to and considered, O’Brien, Byrne v Grey, Kenny, The People v Shaw and Dunne. Murphy, J., at p. 56, referred to O’Brien and Kenny as “two reported decisions of the Supreme Court dealing with search warrants [which] demonstrate how different defects in such instruments can have very different consequences”. It is implicit in this approach that the Court of Criminal Appeal in Balfe accepted that both O’Brien and Kenny were still of full effect and binding upon it, and therefore required to be reconciled. If the result in O’Brien still stood, then the next step as a matter of logic was that identified by Murphy J. at page 59:-
“While it must be recognised that the jurisprudence relating to “the deliberate and conscious violation of constitutional rights” is still evolving, it is clear that a search warrant which innocently but vitally misdescribes premises which may be search on foot thereof is not without operative effect.”
24 Murphy, J. pointed out that Dunne was involved with prosecution for resisting or impeding a member of the gardaí who had sought to enter Mr Dunne’s premises in reliance on a defective search warrant. He continued:-
“The Director of Public Prosecutions was contending that Mr Dunne had committed a criminal offence in failing to comply with the requirement of a document which on any reading was highly ambiguous. The search warrant was held to be senseless and, accordingly, of no authority.”
25 Murphy, J., at p. 60, then sought to reconcile the various decisions as follows:-
“This is the basis on which the majority decision in Kenny (and indeed the decision in Director of Public Prosecutions v Dunne [1994] 2 IR 537) can be reconciled with the majority decision in The People (Attorney General) v O’Brien; that is to say, where a judge of the District Court acting within his jurisdiction agrees to issue a search warrant, a mistake, however gross, in the recording of his order will not necessarily render the warrant invalid for all purposes though it might justify persons to whom it was addressed, or intended to be addressed, declining to cooperate with it. Where, however, the search warrant is made without authority, then it has no value in law however innocent the mistake in granting the same or however apparently plausible the document issued.”
26 Turning to the defects in the warrant in the Balfe case itself, the Court considered that none of the errors could be said to lead to the conclusion that the search warrant was issued without authority. While options might have been deleted, the warrant still made sense since custody possession and premises could be cumulative rather than alternative concepts. The fact that an incorrect address was contained in the information could not invalidate the warrant. Finally, the omission of the identified goods was a serious and patent defect, but it fell within the patent type of the O’Brien defect, rather than the Kenny inherent or fundamental defect and accordingly the goods seized in pursuance of the warrant were properly admitted in evidence. Here, it might be noted that unlike the warrant in Dunne, the Court considered that the warrant made sense in its own terms. The relevant District Justice was indeed satisfied that there was in the custody or possession of the individual on the premises, property with respect to which an offence under the Larceny Act had been committed. The fact is that to comply with the statutory formula, a District justice would have to have information as to the specific property in question, but there was clear evidence that the district justice was so satisfied, since the property had been specified in the information. Accordingly, the warrant was not invalid and the evidence was admissible.
27 The next important case in the sequence is the Supreme Court decision in Simple Imports v Revenue Commissioners [2000] 2 IR 243. In that case, a majority of the Supreme Court (Keane and Barrington JJ., Barron, J. dissenting) quashed a warrant issued pursuant to s.205 of the Customs Law Consolidation Act 1876 and s.5(1) of the Customs and Excise (Miscellaneous Provisions) Act 1988. The facts in the case were somewhat unusual in that the issue of the validity of the warrant did not arise in a trial in which evidence was sought to be admitted which had been obtained on foot of the warrant. Instead, a search had been carried out at a number of locations in Dublin, Cork and Limerick for indecent, obscene and pornographic material. Items had been seized and the applicant company commenced judicial review proceedings seeking declarations that the warrants were unlawful, void and of no legal effect and orders quashing the warrants and directing the return to the applicant of all goods seized on foot of the warrants.
28 The warrant issued under the Act of 1876 recited that the relevant officer “hath cause to suspect and doth suspect the certain goods to wit indecent and or obscene pornographic material the same being uncustomed or prohibited goods are harboured, kept or concealed in a certain place to wit …”. The 1988 Act warrant stated that the said officer “has cause to suspect and doth suspect that certain book or documents relating to transactions in contravention of the law relating to customs are kept or concealed in a certain premises or place to wit …”. The argument turned on the absence of the word “reasonable” from either warrant before the word “cause”. It was said that the warrant did not therefore disclose jurisdiction on its face. The case was somewhat unusual in that extensive evidence had been given to the District Judge about attending the relevant premises, the opinion of the relevant officer that obscene materials were contained there, and furthermore, that those materials had been imported. The majority of the Court held, however, that the warrant was invalid. Unfortunately, the Court does not appear to have been referred to either Dunne or Balfe, and accordingly, did not express any opinion on those cases, or the views expressed in Balfe as to the reconciliation of O’Brien and Kenny. Indeed, Simple Imports Limited did not involve the constitutional protection of the dwelling home since what was searched in that case, were commercial premises. Moreover, because the case arose in the context of an attempt to quash the warrant itself, rather than the admissibility of evidence, the Court did not have the opportunity of expressing any views on the question of whether such evidence would be admissible in any subsequent prosecution.
29 Director of Public Prosecutions v Edgeworth [2001] 2 IR 131 also involved a warrant under the Misuse of Drugs Act 1977, as amended. In that case, the trial judge held that the warrant was invalid, and a question of law was then referred to the Supreme Court pursuant to s.34(1) of the Criminal Procedure Act 1967. A number of issues were canvassed. First, the warrant bore the heading of “The District Court” but was issued in fact by a peace commissioner. Second, although correctly signed by the peace commissioner, the warrant did not contain on its face any statement that the peace commissioner was assigned to the County of Dublin and thus had authority to issue a warrant for the search of the relevant premises. The Supreme Court unanimously determined both points in favour of the Director of Public Prosecutions, thus effectively overruling the trial judge’s determination. Unfortunately, the official reports do not contain any argument of counsel, and the only cases mentioned in the judgment were Dunne and Simple Imports Limited. Hardiman, J. with whom the other members of the Court agreed, expressed agreement with the statement of Carney J. in DPP v Dunne and stated that he had no doubt the warrants in both Dunne and Simple Imports Limited were correctly found inadequate by the Superior Courts. However, in this case, although there were undoubtedly errors, they did not invalidate it. In relation to the first error, Hardiman, J. at p. 136 said:-
“The present warrant features an inappropriate statement on the face of the document whose effect is to associate the document with the District Court whereas in fact it was issued without any application to a judicial personage at all. It is not however a statement calculated to mislead and there was no evidence before the learned trial judge that any person was in fact misled. The status of the person actually issuing the warrant appears clear on its face.” (Emphasis added)
30 Distinguishing Dunne and Simple Imports, Hardiman, J. said, at p. 137, that each of those cases had been “a failure to demonstrate that the conditions laid down by the legislature had in fact been met”, echoing in this respect the distinction made in Balfe. By contrast in the present case, all the statutory criteria could be seen at least on a prima facie basis to have been met and the misdescription, which is the most that it could be called, was not a breach of any condition or criterion imposed by the legislature and is simply an error. He concluded, at p. 137:-
“In my view there is no basis in law for the proposition that this error invalidates a document which accords with all specified requirements of the law.”
31 This reasoning is useful in attempting to understand the case law in this area. An error in a warrant does not necessarily invalidate; it may be in the words of the judgment “simply an error” or a “regrettable misdescription”. If, however, it appears that a statutory precondition has not been satisfied (Kenny) or if the warrant does not so demonstrate on its face (Simple Imports), the warrant will be invalid. Importantly, Dunne is analysed as a case where a statutory precondition was not met, rather than a case of simple error. It is unfortunate that it does not appear that Balfe was referred to in argument in this case. It would have been useful to have had the Supreme Court’s analysis of that case, but it seems probable that if considered correct, it could only be seen as a case that fell into the “simple error” category. But the absence of reference to Balfe makes at least one thing clear: Edgeworth cannot be understood as disapproving of either the decision or the reasoning in that case, as the learned trial judge here seemed to think.
32 Hardiman J.’s reasons for rejecting the second point in Edgeworth are also instructive. The fact that the warrant did not disclose that the peace commissioner executing it had been assigned to Dublin County was not fatal. Section 88 of the Courts of Justice Act 1924 provided for the appointment of peace commissioners in each county to perform and exercise within such county, the duties and powers of a peace commissioner under the Act. If therefore, it had been established that the relevant peace commissioner had not been appointed to Dublin County, that would have invalidated the warrant in this case. But as the Court pointed out, the uncontradicted evidence was that the peace commissioner’s appointment was in respect of the relevant county. Accordingly, the Court considered it was not necessary for the county of the peace commissioner’s appointment to be stated on the search warrant even though it might be observed that the warrant, when signed by the peace commissioner, was somewhat confusingly headed “The District Court”. It was necessary to interpret this aspect of the warrant, and to consider its validity. Once that was done it could be said that the warrant made sense as a matter both of language and law.
33 The next significant case was DPP v David McGoldrick [2005] 3 IR 123. There the Court of Criminal Appeal (Denham, Herbert and Gilligan J.J.) had to consider a warrant issued pursuant to s.140 of the Copyright and Related Rights Act 2000. In that case there were a number of errors in the printed form used for both the information and the search warrant. In particular, the references to s.143 of the Act of 2000 (which provided for the issue of the search warrant on certain conditions) and s.140 (which created the statutory offence) were cited incorrectly. Thus, the warrant recited that there was reasonable ground for suspecting that infringing goods were to be found in premises contrary to s.143 of the Copyright and Related Rights Act 2000. Section 143 however creates no offence. By the same token, the information recited the commission of an offence contrary to s.143 (the same error) and an application for a search warrant pursuant to s.140(1) which latter section creates an offence but is no authority for the issuance of a search warrant.
34 The Court referred to the provisions of Article 40.5 of the Constitution and the seminal statement in Simple Imports that the power to enter premises by authorised forcible invasion of a person’s property, must be used in defined circumstances, and therefore that the Court must be concerned to ensure that “the conditions imposed by the legislature before such powers can be validly exercised or strictly met”. Applying that test, the Court of Criminal Appeal recited a number of errors in the case, including its conclusion that the provisions set out by the legislature were not “strictly met” in accordance with the test in the language of Simple Imports, and therefore, at p. 133, that “the court is satisfied that these are not to be described as mere technical errors unlikely to mislead anyone affected by the warrant; the warrant on its face does not accurately state the basis upon which it was purportedly issued”. The application was therefore allowed.
35 Two more recent cases also require consideration. In The People (Director of Public Prosecutions) v Massoud [2009] IECCA 94, (Unreported, Court of Criminal Appeal, Kearns J., 24th July, 2009), the Court of Criminal Appeal (Kearns, Budd, Hanna, J.J.) considered a production order made under s.63 of the Criminal Justice Act 1994 as amended by s.1 of the Disclosure of Certain Information for Taxation and Other Purposes Act 1996. The production order showed that it was signed on the 25th October, 2003. However, the demand made pursuant to the production order was made on the 24th October, 2003. There was uncontradicted evidence however that the order was in fact granted on the 24th October, but that through a simple clerical order the date had been incorrectly typed on the order as being the 25th October, 2003. In the circumstances of the case, and in particular, the fact that the relevant documents were produced only on the 30th October, 2003, the Court was satisfied that “there was nothing misleading, unclear or ambiguous on the face of the order for the search warrant and the simple clerical error in the date was one of no material substance”.
36 Finally, in the The People (DPP) v McCarthy [2010] IECCA 89, (Unreported, Court of Criminal Appeal, Macken J., 12th October, 2010), the Court of Criminal Appeal (Macken, Budd, O’Keeffe, J.J.) had to consider an appeal by the DPP under s.9 of the Criminal Justice Act 1999 in respect of a search warrant under the Misuse of Drugs Acts 1977-1984. The defect on the warrant relied upon by the defendant, was similar in one respect to that which had been referred to in Edgeworth. The relevant search warrant had been granted by a peace commissioner, but like that in issue in Edgeworth, had been headed “The District Court”. In addition to that however, although it was signed by a peace commissioner, the signature was above a legend “Judge of the District Court assigned to the said District”.
The Court reviewed a number of the authorities referred to here including Simple Imports, Edgeworth, Dunne, and Balfe. It is of some significance that the Court cited with approval the judgment of Murphy J. in Balfe, and appeared to endorse the distinction between errors in jurisdiction and those which were mere errors. The Court emphasised that portion of the Balfe judgment where it was stated, that if “the search warrant is made without authority, then it has no value in law, however innocent the mistake when granting the same or however apparently plausible the document issued”.
37 Considering the judgment in Edgeworth, the Court pointed out that in that case there was a finding, on p. 131, that the form of the warrant “did not mislead where the status of the person issuing the warrant appeared clearly on its face, and did not, therefore effect the validity of the warrant”. The Court referred to the comments of Professor Walsh in his book Criminal Procedure where referring to Edgeworth he observed that not every error on the face of a warrant will render it void, but rather only those that go to the heart of the jurisdiction to grant the warrant.
However, the Court considered that since the search warrant permitting the search of a dwelling home had to be strictly construed, it was satisfied that the Circuit Court had been correct to find that the error on the face of the search warrant was a fundamental error. The status of the party issuing a warrant was, the Court considered, a basic requirement of the jurisdiction to issue it. The warrant therefore disclosed no proper jurisdiction in law and was wholly misleading.
38 In the course of the judgment, the Court in The People (Director of Public Prosecutions) v. McCarthy also helpfully identified a number of principles which it considered could be deduced from the earlier case law:-
“(a) Documents, such as search warrants, must be carefully prepared having regard to the fact that they entitle gardaí or other authorised officers to enter the property of a citizen, and in the course of so doing, to use such force as may be necessary, both to gain admission and to carry out the search and seizure authorised by the warrant; .
(b) This cautionary approach is particularly enjoined when the search warrant is in respect of the dwelling house of a citizen, in light of the recognition granted to such property under the Constitution;
(c) Although search warrants should be prepared carefully, not every error in such a warrant will, by virtue of the same, lead automatically to the invalidation of a warrant;
(d) In particular where the substance of the warrant, as opposed to its form, is not open to objection, the invalidation of the warrant will not necessarily ensue.
(e) The nature of the error, or omission, must be scrutinised by the courts to see whether it is of a fundamental nature, including an error going to jurisdiction. Several factors may be taken into account, including whether the errors are mere mis-description, whether it is likely to mislead, whether it undermines the apparent jurisdiction to issue it, according to the warrant on its face, and such matters, before the courts will find, in an appropriate case, that it should be considered invalid.
(f) It is not possible in relation to non-substantive errors, that is to say, errors which do not affect the substance of the legislative requirements found in the body of the warrant itself, to say that they will never lead to the invalidation of a search warrant, due to the wide variety and nature of errors which may occur.”
This is a very helpful synthesis of the case law to date.
39 Nevertheless, given the range of different outcomes in the cases, it is easy to sympathise with trial courts faced with this apparent wilderness of single incidences. It must be recognised that the outcome of cases on search warrants are not easily predictable. However, with a little perspective, a pattern does emerge from the cases, and it is possible to detect a broad principle with which the decisions can be said to have complied, or can be said to have complied, even acknowledging that this approach still leaves considerable room for differences of opinion on the outcome of individual cases.
40 It is now clear that a mere error will not invalidate a warrant, especially one which is not calculated to mislead, or perhaps just as importantly, does not mislead. Indeed, the fact that warrants perfectly regular on their face may be invalidated if it can be demonstrated by evidence that there was no jurisdiction to issue them, demonstrates that error alone is not the critical factor. This latter fact illustrates the important feature that those warrants which have been found invalid are most clearly those where there was no jurisdiction to issue the warrant because a statutory precondition had not been fulfilled (Byrne v Grey [1988] IR 31, DPP v Kenny [1990] 1 ILRM 1) or where the warrant on its face did not show that the preconditions had been satisfied (Simple Imports). In such cases, the warrant has no validity in law, however, innocent the mistake (Balfe, DPP v McCarthy), and the entry on to the premises consequent on the warrants, even if permitted by the occupier, is illegal. If the entry is of a dwelling home, the entry will be unconstitutional, and any evidence obtained must be excluded absent extraordinary excusing circumstances (DPP v Kenny).
41 More difficulty arises with those cases which appear to deal only with errors in the body of the warrant. It is now quite clear that although a warrant should be prepared with care, not every error will lead to invalidation of the warrant. In particular, where the substance of the warrant as opposed to the form is not open to objection, invalidity will not necessarily ensue. In such cases, the nature of the error or omission must be scrutinised to see if it is of a fundamental nature. Among the factors which may be taken into account are whether the error is a mere misdescription and whether it is likely to mislead. These statements of principle are identified in McCarthy, as being capable of being deduced from the earlier decisions including, importantly the Supreme Court decision in Edgeworth. This approach which identifies circumstances which error will not invalidate the warrant, explains the outcome of cases such as Balfe, Edgeworth itself, and perhaps Massoud.
42 There remains a difficult group of cases where errors on the warrants have been held sufficient to invalidate the warrant. These include Dunne, McGoldrick and McCarthy. It is significant that the earliest of these cases, Dunne, was analysed by Edgeworth as a case in which the warrant did not satisfy the statutory requirement and was therefore invalid. Both McGoldrick and McCarthy expressly apply the test adopted in Simple Imports, namely that the Courts must ensure that the “conditions imposed by the legislature … are strictly met”. In other words, these cases are not seen as cases of error or even gross error per se. They are seen as cases which are analogous to the Byrne v Grey, Kenny, and Simple Imports line of authority, where the error results in a lack of jurisdiction or a failure to demonstrate compliance on the face of the warrant with statutory preconditions for the grant of a valid warrant.
43 This broad distinction first advanced in Balfe, is sufficient to describe those cases where warrants have been held valid or invalid as the case may be but it cannot fully explain them, still less lead to a perfectly predictive test for the validity of warrants. There remains considerable scope for disagreement as to whether an error goes to jurisdiction or demonstrates non compliance with the statutory condition, or is a mere misdescription. This is particularly so because warrants are formal documents designed to comply with a statutory formula. A mistake in such a document can often be characterised as a failure to satisfy a requirement of the statute. But even in those cases where the Courts appear to take a strict approach to errors which may be grammatical, syntactical or in the completion of a standard form, the test is not simply whether there has been an error, but rather whether the error makes the warrant unintelligible.
44 Faced with the difficulty posed by these decisions, some assistance may be gained by the rules of precedent. Indeed the trial judge here had regard to this when he suggested that while Balfe might cover the case, the defence case was that Balfe had been superseded by the subsequent authority and in particular the approval of the Dunne case in the Supreme Court decision in Edgeworth which was binding upon him. On a review of the decisions it is clear that this analysis of the precedent was insufficient and indeed incorrect. The decision in Balfe is not incompatible or irreconcilable with Dunne: rather, Balfe expressly addressed the decision in Dunne which preceded it, and distinguished it on a basis accepted and applied subsequently. Edgeworth did approve the result in Dunne, but that cannot be taken as an implicit disapproval of Balfe still less a reversal of it. At the most basic level Balfe was a decision of the Court of Criminal Appeal which had not been overruled and was thus binding on the trial court and indeed this Court. On that basis alone, if the trial court considered as it did, that the case came within the principle of the decision in Balfe, then Balfe was a valid, and arguably binding precedent.
45 It is tempting to decide this case on a more formal application of the doctrine of precedent and to conclude that if the trial judge decided that this case was governed by Balfe then the warrant should be upheld . However, the case law is so complex that the Court does not think that this case can be properly determined on that basis alone. It truth it would have been possible for the trial judge to identify some decisions, binding upon him, which would have appeared at least to support the invalidation of the warrant. Accordingly, it is necessary to address the question of whether the warrant is valid or invalid in the light of the principles and guidance to be gleaned from the authorities.
46 First, it is clear that this case does not fall within the Byrne v Grey, Kenny or Simple Imports line of authority. There is no question of any failure to satisfy a statutory precondition either on the case of the warrant or indeed in the issuance of it. A person with no knowledge of the geography of this area of Dublin but with a comprehensive knowledge of the law relating to search warrants would find nothing irregular in this warrant. On the face of it, it correctly satisfies the statutory conditions imposed by s.26 of the Misuse of Drugs Act 1977 (as amended) for the issuance of warrants. Undoubtedly the warrant contains a single omission which can be characterised as an error. The question is whether that error is one which can be said to invalidate the warrant being an error which on analysis goes to jurisdiction.
47 Taking a simple approach to this warrant, it appears that it is much closer to the Balfe/Edgeworth line of authority rather than the jurisdictional error exemplified by Dunne. However the contrary argument made on behalf of the Respondent in this case was attractively simple, and forcefully put. There was, it was said, no premises with the name “4 Marrowbone Close”. That indeed was the burden of the Ordnance Survey evidence which the respondent proposed to call until it was conceded. There was thus no “4 Marrowbone Close, Dublin 8”. It followed that the warrant was issued for a fictitious address, an address that did not exist. In that respect it might just as well have been blank. In those circumstances it was argued that s.26 had indeed not been satisfied since the section requires that there be evidence that drugs are to be found on “any premises”. Here the premises identified simply did not exist. Thus it had not been shown that the drug was on “any premises”, which it was said was a requirement of the statute.
48 It must be acknowledged that this argument has force. But it seems to take an unnecessarily artificial approach to the interpretation of the warrant. Everything in this argument depends on the characterisation of the warrant as being for a premises that does not exist. It seems that the more natural way of approaching the warrant is to ask if it adequately describes a premises that does exist – namely the premises searched. What was involved here can be properly described as a mere misdescription. Indeed, it can only be described as a misdescription in the sense that it is not a complete and full address. It does, in the Court’s view, describe these premises, although it could do so more completely. But in the words of the decided cases, it was not calculated to mislead, and perhaps just as tellingly, did not mislead. If before the execution of the warrant an issue had arisen as to what premises was described in it, the Court does not believe that anyone knowing of the existence of 4 Marrowbone Lane Close, whether postman, taxi driver, a member of the Garda Siochana or occupier, would have had difficulty in pointing out the premises. In that sense it is telling that the interpretation of the warrant advanced by the Respondent is that it must be read as authorising the search of nowhere – a premises that simply does not exist. It seems more natural to understand the warrant as being directed to premises which do exist and to see this as an adequate, if imperfect, description of it. Taking the three words that make up the full address of the premises, there is no doubt that the word omitted, “Lane”, is the least important in identifying these premises. “Marrowbone” identifies the cluster of streets which are in Dublin 8 and “Close” the particular street. If the choice is therefore to understand the word as referring, albeit imperfectly and incompletely, to the premises searched, or as referring to nowhere, then the conclusion seems obvious and even unavoidable.
49 A search warrant is a legal document and in that sense akin to contracts, wills, statutory instruments, Acts of the Oireachtas or even a constitution. While each of these has its own legal environment, and therefore conventions for its comprehension and interpretation, each is a document, and as such an effort to communicate, made by an author, or group of authors and directed to a specific audience, whether an individual, a group, or sometimes the public in general. In the case of a search warrant, it is a document that authorises its bearer to enter premises, including a dwelling home, by force if necessary. It also commands the occupier to permit entry. As such, it is a document which should be clear and capable of being understood by the person to whom it is granted and by the occupier of the premises when it is presented to him or her on a doorstep, without warning and almost always in circumstances of stress and alarm. A warrant should not require debate, discussion or repeated reading, to puzzle out ambiguities and possible meanings. It must also clearly demonstrate the jurisdiction under which it is granted, something which it must be acknowledged is not always conducive to clarity. All of this is entirely consistent with the approach taken by the Courts in all the cases: to scrutinise warrants carefully and to demand high levels of accuracy.
50 However, in scrutinising a warrant, a court should not approach a warrant as if it were an exotic artefact, capable of being viewed only under a microscope, of which nothing is known, and about which no assumption can be made. The approach of the Court is searching and even sceptical, but not one of deliberate, unreasonable, and unreasoning ignorance which is blind to the communication the document seeks to make.
51 In approaching any document or indeed any piece of communication, it is necessary to put it in its factual context. Where the document is legal, that may also involve its legal context. That will involve deploying knowledge which is common to any anticipated reader of the document, such as conventions of language, or, may involve receiving evidence as to specific matters known to the particular audience. This is an exercise which is carried out every day in the communication between individuals, and rarely requires to be articulated. To take a simple example, a reader of this warrant would be assumed to know the conventions of the English language and the general approach to addresses such as, for example, the organisation of the City of Dublin in the postal districts so that the words “Dublin 8” could be understood. An example in a specifically legal context, is perhaps that which arose in the Edgeworth case where the description of a peace commissioner was to be understood against the general statutory background as to the powers and appointment of such officers.
52 A useful example arose in the course of argument in this case. Counsel for the Respondent was asked whether any defect, at least in an address, would invalidate a warrant. What, for example, if the warrant in the O’Brien case had read “118 Captin’s Road, Crumlin, Dublin 8”. Would such a warrant have authorised a search of 118 Captain’s Road? Counsel recognise the difficulty posed by this example. If such a warrant was invalid, then it would appear that the Respondent’s argument involved contending for an absolute position that any defect, at least in an address on a warrant, was fatal. This would be unattractively absolute, and would appear inconsistent with the authorities. On the other hand, if it was conceded that such a warrant was invalid it would be necessary to explain what principle would rescue the hypothetical warrant, but not the warrant in this case. Counsel eventually argued that a warrant addressed to 118 Captin’s Road, would be valid because it was a clear typographical error for “Captain”. But that very explanation involved deploying a range of information which is assumed would be common to someone interpreting that warrant in the light of the O’Brien case. It would involve knowing that there was indeed a Captain’s Road, Dublin 8, that there was no Captin’s Road there, that misspelling is not an uncommon feature of documents, and that both the word Captain and Captin, if spoken would sound the same. All this would lend further support to the initial suggestion of a simple misspelling. This reasoning process is rarely articulated, yet it is the business of everyday communication. The fact that the communication being received and interpreted is a legal document and more particularly a warrant, should not mean that the reader is required to disable those aspects of knowledge and reasoning which allows him or her to understand any other form of communication. But if such a warrant would be valid (and the Court considers that counsel was correct that it would be) then that conclusion demonstrates that the original argument proffered on behalf of the Respondent cannot be correct or at least sufficient, since it could be said with equal force that 118 Captin’s Road was a fictitious address, a non existing premises and accordingly that the statutory condition of identifying a premises had not been complied with.
53 In this case it seems that the point argued most forcibly on behalf of the Respondent – that there was no address in Dublin or elsewhere, of 4 Marrowbone Close – tends ultimately against the respondent rather than assisting him. Once it is acknowledged that this fact would be known to the potential addressees of the warrant (the executing gardaí and the occupiers of the premises) and account is taken of the fact that it is rare for gardaí go to the bother of seeking, and even rarer for the District Court to grant, a warrant for fictitious addresses, then that only leaves the present premises as the likely subject of the warrant. Once it is hypothesised that the warrant may apply to the existing premises, that conclusion is reinforced by the fact that the omission of the word “Lane” is an understandable one. The word Close is likely to be the most important part of the address and it would not be surprising if gardaí or other persons reasonably familiar with the area described that street as the Close, or/and somewhat inaccurately as Marrowbone Close. This is a very laborious way of explaining a thought process that is almost instantaneous in ordinary life. If the address was shown to an individual reasonably familiar with the area, the Court does not think they would have had any difficulty in directing someone to 4 Marrowbone Close. If this is so and is true for a postman, taxi driver or member of the gardaí, a court should not find an insuperable difficulty in understanding the warrant, and an appropriate demand for clarity and care is not required to become deliberate obtuseness.
54 This conclusion appears to this Court to accord with principle. It is important that a court should insist upon accuracy, particularly in addresses in relation to warrants since they authorise forcible entry of premises including dwelling homes. But invalidation of every warrant on the ground of error and description does not seem to serve any advance purpose in respect of the Constitution or even of proper grammar, usage, or clarity in communication. As the trial judge here observed, this is a mistake which is regularly made in everyday life. It is only necessary to consider the variety of texts which go through professional editing processes, such as newspapers, books, road signs, Acts of the Oireachtas and even sometimes judgments in the Official Reports, to recognise that some level of error is almost unavoidable. Furthermore, particularly in so long as Irish law maintains an almost absolute exclusionary rule for evidence obtained as a result of an illegal and therefore unconstitutional search of a dwelling house, courts should be slow to invalidate warrants on the grounds of typographical grammatical, or transcription errors, which are neither calculated to mislead, nor in truth do mislead, any reasonable reader of the words.
Finally, it should acknowledge that counsel for the prosecution drew our attention to the provisions of s. 14 of the Criminal Justice (Surveillance) Act 2009 which provides that information obtained as a result of surveillance carried out under an authorisation granted under the Act may be admitted in evidence notwithstanding errors or omissions in the authorisation. This is an interesting provision, but it does not shed much light on the position at common law, and has not yet been the subject of authoritative interpretation and application. In the circumstances the Court has treated it as a neutral factor, and has focussed on the analysis of the validity of the warrant in the light of the decided cases. On that basis, for the reasons set out above, the appeal by the prosecutor in this case must be allowed.
The State (Lynch) v Ballagh
[1987] ILRM 65
At about 11.30 pm on 1 March 1985 Garda Adrian Walsh of Coolock Garda Station, Dublin arrested the prosecutor, who was then aged about 17 years, and brought him to Coolock Garda Station. They arrived at the station just before midnight and there Garda Walsh charged the prosecutor with an offence contrary to s. 112 of the Road Traffic Act, 1961, as amended by s. 65 of the Road Traffic Act, 1968, which was to the effect that he was knowingly a passenger in a motor car which had been taken and driven without the consent of the owner. The charge which was made shortly after midnight is set out in Coolock garda charge sheet No. 150 of 1985 which was exhibited in the case. Sergeant Austin Foran was the station house officer on duty at that time and was in charge of the station. When the prosecutor’s father was sent for and came to the garda station and confirmed that the address given by the prosecutor was his correct address, the sergeant, to use his own words ‘considered it prudent to release the prosecutor on bail pursuant to s. 31(1) of the Criminal Procedure Act, 1967.’ At 2.15 am on 2 March, the prosecutor was released on station bail of £50, and with his father as surety for £50 to appear, and again I quote from the Sergeant’s evidence, ‘… at District Court No. 4 on 6 March 1985 at 2 pm — being the appropriate time and place.’ The Sergeant says that he made the recognisance returnable to 6 March at District Court No. 4 as he believed that ‘… was the appropriate time and place’. In fact it appears that the next time which Garda Walsh would have been rostered for day duty was 6 March. When the date was mentioned to the prosecutor, he didn’t raise any objection. The Sergeant considered that he had 30 days within which to act in accordance with the provisions of Statutory Instrument No. 23 of 1985, entitled ‘The District Court (Criminal Procedure Act 1967) rules 1985.’
At 2 pm on the 6 March 1985 Mr Michael E Hanahoe was assigned as solicitor under the legal aid system. Mr Hanahoe raised a point of objection to the jurisdiction of the court in the case based on the grounds that the prosecutor had not been brought at the earliest possible sitting of the District Court in order to be there charged. The District Justice indicated his intention of adjourning the case until 20 March and remanded the prosecutor to appear there on that date on continuing bail. Mr Hanahoe objected also to the adjournment on the grounds that it was irregular because of his initial claim that the court did not have any jurisdiction in the case anyway. The copy of the order made by the District Justice remanding the prosecutor on continuing bail to 20 March 1985 at 10.30 am to Court No. 4 was put in evidence.
On 8 March 1985, D’Arcy J in the High Court granted a conditional order of certiorari directed to the District Justice ‘to send before the court here for the purpose of being quashed the said remand order dated 2 March 1985 and all records and entries in relation thereto on the grounds set out in par. 5 of the affidavit’. The affidavit referred to is that of Mr Michael Hanahoe in applying for the conditional order. The order which it was sought to quash was not an order of the District Justice but rather the recognisance entered into in the garda station on 2 March whereby the prosecutor and his father entered into a recognisance respectively to appear in the District Court on 6 March.
S. 31(1) of the Criminal Procedure Act 1967 provides that:
Whenever a person is brought in custody to a Garda Siochana station by a member of the Garda Siochana, the Sergeant or other member in charge of the station may, if he considers it prudent to do so and no warrant directing the detention of that person is in force, release him on bail and for that purpose take from him a recognisance, with or without sureties, for his due appearance before the District Court at the appropriate time and place.
The section goes on to provide that the recognisance may be estreated in the like manner as a recognisance entered into before a District Justice is estreated. It also provided power to accept a sum of money equivalent to the amount of bail in lieu of a surety or sureties and any such money received by a member of the garda siochana should be deposited by him with the District Court clerk in the District Court area in which the Garda Síochána station is situate.
The District Court (Criminal Procedure Act 1967) Rules 1985 provide as follows in substitution for r. 39(1) of the 1984 District Court Rules.
Notwithstanding any other provision of these Rules, where a person is being released on bail from a Garda Station under s. 31 of the Criminal Procedure Act, 1967, the recognisance to be taken from him may be a condition for his appearance at the next sitting of the Court for the Court area in which he has been arrested or at any subsequent sitting thereof to be held not later than thirty days after such sitting.
The first question which arises for consideration is whether the Rules Committee of the District Court had any jurisdiction to make rules regulating the procedure to be adopted by a member of the Garda Siochana in the exercise of the statutory powers conferred on him by s. 31 of the Criminal Procedure Act, 1967. In my view, they have not.
The members of the Garda Siochana are part of the executive branch of government and the performance of the functions assigned to them by statute cannot be regulated by a rules making committee whose function is to make rules to enable the District Court to function, to carry out its duties and exercise its jurisdiction, and to regulate its practice and procedure. It has no power to legislate for any other purpose. See the judgment of Davitt P. in Woolf v O Griobhta [1953] IR 276 at 281. S. 34 of the Courts (Supplemental Provisions Act), 1961, provides that:
The jurisdiction of which is by virtue of this Act vested in or exercised by the District Court shall be exercised as to pleading, practice and procedure generally, including liability of its costs, in the manner provided by the rules of court made under s. 91 of the Act of 1924, as applied by s. 48 of this Act.
S. 91 of the Courts of Justice Act, 1924 provides that the:
rule making authority may at anytime from time to time make District Court Rules … for the practice and procedure of the District Court generally … including the adaptation or modification of any statute that may be necessary for any of the purposes aforesaid and all subsidiary matters.
The words ‘pleading, practice and procedure generally’ refer to the jurisdiction conferred upon the District Court or transferred to it and are matters strictly procedural in the narrow sense. See the judgments in The State (O’Flaherty) v O Floinn [1954] IR 295 per Davitt P at p. 296 and Kingsmill Moore J at pp. 304 and 305 and O Dalaigh J at p. 313. The same judgments also make clear that the ‘adaptation or modification of any statute’ has an application so narrow as to exclude any possibility of achieving what was sought to be achieved by Statutory Instrument No. 23 of 1985 in relation to s. 31 of the Criminal Procedure Act, 1967, or s. 26 of the Criminal Justice Act, 1984.
The power of adaptation or modification of any statute is expressly confined by s. 91 to what may be necessary for any of the purposes aforesaid and all subsidiary matters.
As was pointed out by Kingsmill Moore J in The State (O’Flaherty v O Floinn) supra at p. 304 of the report, the object of s. 91 was to provide for the practice and procedure for the new jurisdiction in the District Court and also to modify and adapt the practice and procedure of the jurisdiction which was transferred to it.
By definition the practice and procedure must necessarily refer to the practice and procedure of the District Court and not to the practice and procedure of the police. Examples of questions of practice and procedure which was mentioned by Kingsmill Moore J were to be found in the Attorney General v Healy [1928] IR 460 and the Attorney General v Bruen and Kelly [1935] IR 615. In the former case it had been held that a summons charging an offence against the Customs Acts might be grounded on a verbal complaint as provided in the Rules of the District Court, and that an information in writing as was required by s. 11 of the Customs and Inland Revenue Act, 1879, was no longer necessary. In the latter case it was held that a summons signed by a District Court clerk was sufficient notwithstanding the provisions of s. 36 of the Illicit Distillation (Ireland) Act, 1831 and s. 11 of the Petty Sessions (Ireland) Act, 1851 should require the summons to be signed by a justice.
In The Attorney General v Callaghan [1937] IR 386 it was held that a summons may be made returnable in accordance with the provisions of the rules notwithstanding the provisions of s. 32 of the Illicit Distillation (Ireland) Act, 1831, requiring that it should be made returnable in not less than six and not more than fourteen days from the date of such summons. In The State (Batchelor and Co (Ireland) Ltd v District Justice O Floinn [1958] IR 155 it was held by the former Supreme Court of Justice that a summons under s. 12 of the Merchandise Marks Act, 1887 may be signed by the District Court clerk, notwithstanding the provision contained in the section which requires, when a search warrant is sought, that the summons must be issued on an information of an offence.
A District Court summons is issued following a complaint made to the District Court. The manner of making a complaint and the issuing of a summons following such complaint and the manner in which it should be issued etc. are essentially matters of procedure of the District Court which, by reason of the initial complaint, has already been seised of the matter. The District Court rule in question in the present case purports to deal not with any matter of which the court has been seised but seeks to provide for the form of recognisance to be taken by the Sergeant or other member in charge of a garda station from a person who is being released on bail by the garda officer in question, under s. 31 of the Criminal Procedure Act, 1967 by providing that it may be a condition for his appearance at the next sitting of the court area in which he has been arrested ‘… or at any subsequent sitting thereof to be held not later than 30 days after such sitting.’ Therefore it seeks to give to the garda officer in question a discretion not to cause the person released on bail to appear before the next sitting of the court of the court area, but at any subsequent sitting to be held not later than 30 days after such sitting, which in effect may mean that the garda officer is being vested with the discretion to postpone the appearance in court for anything up to 30 days after the next sitting of the court following the release on bail. Therefore in a case such as the present one, one of the results of that would be that the District Court would not be seised of the case until the expiration of that period, as no charge or complaint would be made to the District Court until the complaint is formally made by putting the charge sheet before it. In practice the complaint is not made until the date on which the case is listed for hearing. What happens before a complaint is made to the District Court, whether it be an arrest followed by a release on bail in exercise of statutory powers vested in the garda siochana and with or without sureties, is dependant upon the exercise of the discretion of the garda officer concerned and cannot in any sense be regarded as falling under the heading of pleading practice and procedure of the District Court, or of any matter subsidiary thereto, any more than the arrest itself could be so regarded.
The statutory powers and functions of the garda siochana do not fall within a rule-making authority or body of the judicial arm of government. The garda siochana is not in any sense part of the judicial system nor does it participate in the exercise of the judicial power of the District Court in its administration of justice. In my view, therefore, the provisions already cited of the District Court (Criminal Procedure Act 1967) Rules 1985 are ultra vires the District Court Rules Committee. the powers of the garda siochana in respect of what may be called ‘station bail’ and the regulation of them are contained only in s. 31 of the Criminal Procedure Act, 1967.
The granting of bail by a court is a judicial act and not a ministerial one. A court has to consider the various matters which may be taken into consideration and exercise its discretion according to the law. The provision as to station bail provided under the Act of 1967 refers to a person who has not appeared before any court and in respect of whom no court has been seised. The duty of the garda siochana when they arrest somebody and charge him is to bring him before a court to answer the charge at the earliest practicable time, or, as has been said in a number of cases, before a Peace Commissioner. However, the matter is now governed by s. 26 of the Criminal Justice Act, 1984, which in substitution for s. 15(1) of the Criminal Justice Act, 1951, provides at (2):
A person arrested without a warrant shall, on being charged with an offence, be brought before a justice of the District Court having jurisdiction to deal with the offence or, if a justice is not immediately available, before a peace commissioner in the district of such a justice as soon as practicable.
S. 26(3) goes on to provide ‘Where a person … having been arrested without warrant, is charged after that hour and a justice is due to sit in the District Court district in which the person was arrested not later than noon on the following day, it shall be sufficient compliance with subs. (1) or (2), as the case may be, if he is brought before a justice at the commencement of the sitting’. Subs. (4) provides: ‘If the person is brought before a peace commissioner, the commissioner, having heard the evidence offered, shall remand him, either in custody or on such bail as the commissioner thinks fit, and remit the case for hearing before a justice of the District Court having jurisdiction to deal with it.’Subs. (5) provides: ‘If the accused is remanded on bail and there and then finds bail, the case shall be remitted to the next sitting of the court.’Subs. (6) provides: ‘In any other event, the case shall be remitted to a sitting of the court at a named place to be held within eight days after the arrest.’
It appears clear then that the object of the statute is to ensure that an accused person is brought promptly before a court if he is in custody, and if he is on bail to the next sitting of the court. In the light of those statutory provisions it does not appear to me that a court sitting several days later, and at a time which happens to be convenient for the arresting guard, in the Dublin Metropolitan District is ‘due appearance before the District Court at the appropriate time and place’ within the meaning of s. 31 of the Criminal Procedure Act, 1967. As there is no peace commissioner involved in the present case, it is unnecessary to deal at any length with the precise status of a peace commissioner in our legal system. He first appeared in s. 4 of the District Justices (Temporary Provisions) Act, 1923, where, in addition to ministerial functions assigned to him, subs. (3) provided: ‘whenever any person charged with having committed an indictable offence shall be arrested by a member of the Civic Guard such persons shall unless a District Justice is immediately available forthwith be brought before a peace commissioner who after hearing such evidence as may be offered shall remand such person either in custody or on such bail as the peace commissioner shall think fit and remit the case for hearing before a District Justice on a date not later than the next District Court to be held in the Court District where such person was arrested.’ An identical provision appears in s. 88(4) of the Courts of Justice Act, 1924. Each such provision referred to indictable offences. S. 15(1) and (2) of the Criminal Justice Act, 1951 provided ‘that a person charged with an offence shall on arrest be brought before a Justice of the District Court having jurisdiction to deal with it, if a Justice is immediately available’, and ‘if not, shall be brought as soon as may be before a peace commissioner in the district of such a Justice.’S. 15(3) provided that ‘if brought before a peace commissioner, the commissioner, having heard the evidence offered, shall remand him, either in custody or on such bail as the Commissioner thinks fit, and remit the case for hearing before a Justice of the District Court having jurisdiction to deal with it.’S. 26 of the Criminal Justice Act, 1951 provides: ‘If the person is brought before a peace commissioner, the commissioner, having heard the evidence offered shall remand him, either in custody or on such bail as the commissioner thinks fit.’Subs. (2) provides: ‘A person arrested without a warrant shall, on being charged with an offence be brought before a justice of the District Court, having jurisdiction to deal with the offence or, if a justice is not immediately available, before a peace commissioner in the district of such a justice as soon as practicable.
It appears to me that those particular functions which the various statutes have purported to assign to a peace commissioner are really judicial functions because they purport to have a given power to hear evidence and having heard the evidence, to exercise a discretion as to whether prisoners shall be remanded in custody or on bail. These are functions which when carried out by the District Court are clearly judicial functions. As peace commissioners, the exercise of these functions are not within the provisions of either Article 34 or Article 37 of the Constitution, and their position appears to be somewhat constitutionally dubious.
In the case of the member of the Garda Siochana in charge of a station envisaged by s. 31 of the Act of 1967, the position is quite different. He doesn’t purport to hear any evidence or make any adjudication but simply decides, in the light of whatever knowledge he has, whether or not it would be prudent to grant bail. When a person has been arrested and charged in the Dublin Metropolitan District, the charge is written into the charge sheet but that does not amount to seising the court of the case. Unless and until the complaint is made to the court by the appearance of the person arrested before the court and/or the presentation of the charge sheet to the court, there is no complaint. Up to the moment the charge sheet is put before the court it is a police document only, and it becomes a court document only when it is laid before the District Justice. It is in effect the entry of the case or charge before the District Justice. See the judgment of O Dalaigh CJ in Attorney General (McDonnell) v Higgins [1964] IR 374 at p. 385. The arrest and the charge sheet, so long as it remains a police document, do not confer jurisdiction. See also the judgment of Kingsmill Moore J in the same case at p. 386.
In my view the initial criticisms of the District Court Rules made by Mr Hanahoe were well founded but I do not think that they are of any benefit to his client in this case. If his client had not turned up on 6 March in the District Court, then perhaps an interesting legal situation might have arisen but in fact he did turn up. Even assuming that his presence there was involuntary because of the bail bond of the recognisance, the complaint was made there and then and that was sufficient to give jurisdiction to the District Justice in this summary offence. I stress the fact that this was a summary offence to be tried summarily. Save in a case of the Special Criminal Court no person can be put on trial on indictment simply by appearing and being charged in the court of trial. A valid return for trial by the District Court is an essential preliminary requirement. See the judgment of this Court in Costello v Director of Public Prosecutions [1984] IR 436. The statement to the contrary in The State (Attorney General) v Judge Fawsitt [1955] IR at p. 39 was overruled by the former Supreme Court in The People (Attorney General) v Matthew Boggan [1958] IR 67.
I am of opinion therefore, that the order of the District Court of 6 March 1985 should not be quashed and to that extent I would reverse the order of the High Court. I note that the absolute order given in the High Court referred to ‘the first court order made in this namely that of 6 March 1985.’ In fact the conditional order was sought and granted in respect of the ‘remand order’ of 2 March 1985 presumably referring to the recognisance entered into in Coolock Garda Station on that date. Because of the reasons I have already given concerning the validity of the District Court order of 6 March it is not necessary to pursue the difference between the conditional order granted and the absolute order. In my opinion, the appeal should be allowed and the conditional order discharged.
HENCHY J:
Declan Lynch, the prosecutor in these certiorari proceedings, was arrested at Coolock, Dublin, at about 11.45 pm on Friday 1 March 1985 by Garda Walsh. He was a youth of 17 years and he was arrested for being involved that night in a joyriding escapade.
Garda Walsh conveyed him to Coolock Garda Station, where he charged him with allowing himself to be carried in a motor car which he knew had been taken possession of or was being used without the consent of the owner, contrary to s. 112 of the Road Traffic Act, 1961, as amended.
The youth’s father came to the garda station and confirmed that he (the youth) was living at home. In the circumstances the station sergeant considered it prudent to grant him bail pursuant to s. 31(1) of the Criminal Procedure Act, 1967. He was therefore released at 2.15 am on his own bail of £50 with an independent surety (his father) of £50, the condition of the recognisance being that he would appear before District Court No. 4 at Chancery Street, Dublin, at 2 pm on Wednesday 6 March 1985. The next sitting of the District Court for the area in question would have been on Monday 4 March, but 6 March was the next day on which Garda Walsh was rostered for duty and the sergeant considered that that was the appropriate date for the appearance of the accused in court. The accused and his father signed the recognisance without objecting to any of its terms.
When the case was called in District Court No. 4 on 6 March the accused was present but his solicitor raised the objection that the District Justice had no jurisdiction to deal with the case because, he submitted, the accused was unlawfully before the court. The basis of that submission was that the District Court (Criminal Procedure Act 1967) Rules, 1985, under which bail had been granted, were made in excess of the powers of the District Court Rules Committee. Notwithstanding that objection, the District Justice adjourned the case to 20 March 1985 and remanded the accused on continuing bail to that date.
In the meantime a conditional order of certiorari was got in the High Court to quash the remand order based on the order of 6 March adjourning the case and remanding the accused on bail, on the same ground on which objection to jurisdiction had been made in the District Court. Subsequently that conditional order was made absolute. This appeal is against that order.
The central question is whether the 1985 Rules were made in excess of the jurisdiction of the District Court Rules Committee, in that they empowered the grant of bail by the garda siochana for a period other than until the next sitting of the District Court for the area in question.
Where a person has been arrested and brought to a garda station, bail, if granted, is usually granted later when he is brought before either a peace commissioner or a District Justice and charged with an offence. However, station bail (i.e. bail granted by the police in the garda station in question) is also an option.
Statutory provision for the grant of station bail in Ireland is to be found in Acts going back to the early part of the nineteenth century, but the modern statutory basis for this form of bail in a case such as this derives from s. 14(1) of the Criminal Justice Act, 1952. The effect of that subsection was that where the arrested person was being held in a garda station without a warrant, the sergeant or other member of the garda siochana in charge of the station could grant him bail, conditioned for his appearance in the District Court ‘at the appropriate time and place.’ See the interpretation of the scope of the subsection by Davitt P in Attorney General v Burke [1955] IR 30. The operation of the subsection was made more specific by r. 39(1) of the District Court Rules, 1948, which provided that the recognisance was to be conditioned for the appearance of the person being bailed ‘at the next sitting of the court for the court area in which he has been arrested.’
S. 14(1) of the 1951 Act was re-enacted verbatim by s. 31(1) of the Criminal Procedure Act, 1967. Station bail under the latter subsection continued to be granted by means of a recognisance conditioned (in accordance with r. 39(1) of the District Court Rules, 1948) for appearance at the next sitting of the court for the court area in which the person being bailed was arrested.
The condition prescribed for the recognisance in such a case has now been changed by the District Court (Criminal Procedure Act, 1967) Rules, 1985. Those Rules substitute the following for Rule 39(1) of the 1948 Rules:
Notwithstanding any other provision of these Rules, where a person is being released on bail from a Garda Siochana station under section 31 of the Criminal Procedure Act, 1967, the recognisance to be taken from him may be conditioned for his appearance at the next sitting of the Court for the court area in which he has been arrested or at any subsequent sitting thereof to be held not later than 30 days after such next sitting.
During the 34 years between the passing of the Criminal Justice Act, 1951 and the coming into operation of the 1985 Rules, r. 39(1) of the 1948 Rules had the eft that the recognisance for station bail had to provide for an appearance at the next sitting of the District Court for the court area in which the arrest had taken place. Now, since the coming into operation of the 1985 Rules, the appearance to be provided for in the recognisance is to be either at the next sitting of the court or at any subsequent sitting thereof to be held not later than 30 days after such next sitting.
The question essentially is whether the Rules Committee acted within their powers in thus extending the time for the appearance in court of the accused.
It was submitted by counsel for the accused in this case that the Rules Committee have no power to fix any time for the appearance in court in the case of station bail, that this is a matter of procedure in a garda station, that it is no part of the procedure in the District Court, and that it is therefore outside the scope of the powers delegated by statute to the Rules Committee. I cannot agree. S. 91 of the Courts of Justice Act, 1924, empowers the Rules Committee to make rules for ‘the practice and procedure of the District Court generally’ and for ‘the adaptation or modification of any statute that may be necessary for that purpose.’ The practice and procedure there referred to is not confined to practice and procedure in the court. It covers matters preliminary to and consequential on what may take place in court. Summonses, informations, recognisances, warrants, notices and affidavits in connection with court proceedings are all matters of court practice and procedure notwithstanding that they frequently emanate from solicitors’ offices or garda stations. As such, they fall properly within the powers of the Rules Committee, and the Committee’s provisions in regard to them, in terms of their form or of their application, will not be ultra vires unless what is effected goes beyond ‘adaptation or modification’ of a statute — as was held to have been the case when a rule enlarged the period laid down by statute for a remand in custody: see The State (O’Flaherty) v O Floinn [1954] IR 295 179. Such a radical change affecting the liberty of the individual, while it related to the procedure of the court, was held to go beyond ‘adaptation or modification’ of the statute in question.
What the Rules Committee set out to effect by the impugned 1985 Rule was essentially different. Neither the purpose nor the effect of this rule is to restrict or diminish personal liberty. Whereas r. 39(1) of the 1948 Rules (which it replaced) provided that the condition of the recognisance was to be that the released person would appear before the next sitting of the District Court, the new rule provides that the recognisance is to be conditioned for an appearance either at that sitting or at any subsequent sitting not later than 30 days after that sitting. Unlike the position in The State (O’Flaherty) v O Floinn (where the period of remand in custody was enlarged), here it is the period of release on bail before the next court appearance that is enlarged. What is effected is a procedural or administrative convenience, not a prejudicial change in the substantive law and certainly nothing that goes beyond the modification or adaptation of a statute.
Counsel for the accused, while unable to point out any specific prejudice suffered by his client as a result of the extended period of remand on bail, submits that his client’s personal rights have been theoretically diminished by that extension, in that it is an extension of the period when he is, or is to be deemed to be, in the custody of his surety. Whatever the position may have been in the past, I do not consider that nowadays a person released on bail can be said to be in the custody of his surety. The surety may, of course, take steps (such as under s. 33 of the Criminal Procedure Act, 1967, or under r. 61(2) of the District Court Rules, 1948) to ensure that the recognisance will not be estreated, but so long as the person granted bail is at large under the recognisance, and the recognisance is not superseded by any later order, the person on bail is in no real sense in the custody of the surety. The only way in which the recognisance could be said to restrict his liberty is to the extent that he may be restricted by the terms of the condition in the recognisance. The absence of any such terms in this case meant that the accused was as free as any other citizen during the period of the remand.
There remains the question whether the Rules Committee were empowered to make the 1985 Rule allowing a remand on bail in a case such as this for a period not exceeding 30 days later than the next sitting of the court. Unlike the statutory provisions governing a remand on bail by a peace commissioner or by a District Justice, s. 31(1) of the Criminal Procedure Act, 1967 (re-enacting s. 14(1) of the Criminal Justice Act, 1951), provides that station bail shall be conditioned for the appearance before the District Court of the person being released ‘at the appropriate time and place’. The vague statutory direction, which on its own would have given a very wide discretion to the releasing sergeant or garda, was operated up to 1985 in accordance with r. 39(1) of the 1948 District Court Rules, which required the remand to be under the next sitting of the District Court for the area in question. The validity of r. 39(1) was, as far as I am aware, never questioned in the courts in the period between the passing of the 1951 Act and the coming into operation of the 1985 Rules. R. 39(1) was obviously treated as having modified the statutory requirement of a remand to a sitting of the court ‘at the appropriate time and place’ by giving it the precision of a remand to the next sitting of the court.
It seems reasonable to assume that the 1985 Rules was made because it was found that a remand to the next sitting of the court was not always, in the word of the section, ‘appropriate’. For a variety of reasons, a remand to the next sitting of the court might be inconvenient, impractical or otherwise inappropriate to the circumstances of the case. Take the present case. It made no difference to the accused whether he was remanded on bail, as he was, on 2 March to a sitting of the court on 6 March, or to the next sitting of the court, on 4 March. But it made a difference to the prosecution, for 6 March was the next day on which the prosecuting garda was rostered for day duty and 6 March was a suitable day to release him from his ordinary duties for court duty. Administrative convenience clearly indicated 6 March as the appropriate date, and there is the averment in the affidavit of the sergeant who granted bail that the accused made no objection to that date and that if he had a problem with that date the sergeant would have tried to facilitate him. There are plainly no merits in the objection taken to the remand date.
The extension by the Rules Committee of the possible period of release on bail to a sitting of the court not later than 30 days after the next sitting of the court probably derives from the fact that in certain court areas there is a sitting only every two or four weeks. Where bail is granted shortly before such a sitting, a condition that the accused must appear at the sitting might be burdensome and inconvenient for both parties, for the trial would normally not be ready to proceed at that sitting, so that there would inevitably be a further remand on continuing bail to the next sitting two or four weeks ahead. In such a case the grant of station bail conditioned for an appearance at a sitting of the court not later than 30 days after the next sitting of the court would be in ease of the accused as well as the prosecution. That sitting would represent, in the words of the section, ‘the appropriate time and place’. I consider that s. 31(1) of the 1967 Act by necessary implication authorised the Rules Committee to determine the appropriate time and place.
Having regard to the powers vested in the Rules Committee by s. 91 of the Courts of Justice Act, 1924, (as applied by s. 34 of the Courts (Supplemental Provisions) Act, 1961) and the provision in 31 (1) of the Criminal Procedure Act 1967, that the recognisance in a case such as this is to be conditioned for an appearance in the District Court ‘at the appropriate time and place’, I do not consider that the District Court Rules Committee acted ultra vires in providing in the 1985 Rules for an appearance at a sitting of the court to be held not later than 30 days after the next sitting of the court. The impugned rule does no more than modify or adapt s. 31(1) of the Criminal Procedure Act, 1967.
The order of the District Court which the accused seeks to have quashed made no unfair impact on his rights. It merely remanded him on continuing bail. Even if it could be said that the order was defective, the grant of certiorari in a case such as this is discretionary and, since the alleged defect lay only in the process for procuring the attendance of the accused in court, the quashing of the order would not be a proper exercise of discretion. In any event, it has been decided, by a series of cases, that a defect in the process for procuring the attendance of an accused in court is normally cured if the accused appears in court: see Attorney General v Burke [1955] IR 30; Application of Tynan [1969] IR 1; Director of Public Prosecutions v Clein [1983] ILRM 76. Such cases must, of course, be read subject to the general rule that the prosecution may not procure the attendance in court of any accused person by means of a deliberate and conscious violation of his constitutional rights. Since there is no question of that having happened in this case, it follows that, even if there was a defect in the recognisance requiring the accused to appear in the District Court on 6 March, that defect was cured when he appeared in court on that date. For that further reason the accused was not entitled to the order of certiorari sought by him.
Since I consider that neither in law nor in fact is there substance to the accused’s complaint, I would allow this appeal, thus allowing the cause shown and discharging the conditional order of certiorari.
GRIFFIN J:
The facts have been fully set out in the judgments of this appeal. The constitutional validity of s. 31(1) of the Criminal Procedure Act 1967 was not challenged or questioned. The only question for decision is whether the District Court Rules Committee had jurisdiction to make rule 39(1) of the District Court Rules 1948 as substituted by the District Court (Criminal Procedure Act, 1967) Rules, 1985. This rule, if valid, permits the grant of station bail by a member of the garda siochana under s. 31 of the Criminal Procedure Act, 1967 until the next sitting of the District Court for the court area in which the person charged has been arrested, or until any subsequent sitting thereof not later than 30 days after such sitting.
The power given to a police officer to grant station bail has existed for over 150 years. It is to be found in s. 24 of the Justices (Dublin Metropolis) Act, 1824; in ss. 7 and 8 of the Dublin Police Act, 1836; and in s. 33 of the Dublin Police Act, 1842. Release on bail under those sections was within the power of the police officer if he should deem it prudent to grant it to the arrested person. The recognisance taken under the 1836 Act required the arrested person to appear before a justice of the peace at 10.00 am on the following day, and that taken under the 1842 Act required him to appear before the Justice at his next sitting by virtue of s. 35.
Subsequent to the foundation of the State, rule 39 of the District Court Rules 1948 provided for the grant of station bail in the case of a person charged with a summary offence, who is arrested without a warrant on such person entering into a recognisance to appear at the next sitting of the court for the court area in which he was arrested.
The Oireachtas made provision for release on station bail in the Criminal Justice Act, 1951. S. 14(1) of that Act provided:
14
(1) Whenever a person is brought in custody to a Garda Siochana station by a member of the Garda Siochana, the sergeant or other member in charge of the station may, if he considers it prudent to do so and no warrant directing the detention of that person is in force, release him on bail and for that purpose take from him a recognisance, with or without sureties, for his due appearance before the District Court at the appropriate time and place.
S. 33 of the 1842 Act was repealed by s. 26 and Schedule 2 of the 1951 Act, presumably because s. 14(1) was being substituted for it.
S. 14(1) of the 1951 Act was in turn repealed by the Criminal Procedure Act, 1967, and was replaced in identical terms by s. 31(1) of that Act. That is the section under which an arrested person may now be admitted to station bail.
The District Court (Criminal Procedure Act, 1967) Rules 1985 (S.I. No. 23 of 1985) came into operation on 18 February 1985. Those rules substituted a new rule 39 for rule 39 of the 1948 Rules. Under the new rule, as stated earlier the recognisance to be taken from the arrested person may be conditioned for his appearance at the next sitting of the court for the court area in which he was arrested or at any subsequent sitting thereof to be held not later than 30 days after such sitting. Those rules were made by the District Court Rules Committee in purported exercise of the powers conferred on them by s. 91 of the Courts of Justice Act, 1924. The case argued on behalf of the appellant was to the effect that those rules merely regulated the practice and procedure of the District Court as authorised by that section and that the Rules Committee were entitled to make them on that account.
Pursuant to s. 91, the rule-making authority (the District Court Rules Committee pursuant to s. 72 of the Courts of Justice Act, 1936) were empowered to make rules for carrying into effect Part III of the Act and to annul or alter such rules and make new rules. The section then provided:
In particular rules may be made for all or any of the following matters, viz., for regulating the sittings and the vacations and the districts of the Justices and the places where proceedings are to be brought and the forms of process, summons, case stated, appeal or otherwise … and the practice and procedure of the District Court generally including questions of costs and the times for taking any step in the District Court, … and the adaptation or modification of any statute that may be necessary for any of the purposes aforesaid and all subsidiary matters.”
The effect and the limits of that section have been considered in a number of cases, but for the purpose of this appeal it is necessary to refer only to two of them.
In Woolf v O Griobhta [1953] IR 276, Davitt P said:
It is clear that what the authority had power to do was to make rules to enable the District Court to function, to carry out its duties and exercise its jurisdiction, and to regulate its practice and procedure. It had not power to legislate for any other pupose.’ (at p. 281)
In The State (O’Flaherty) v O Floinn [1954] IR 295 Kingsmill Moore J having quoted part of the section, said:
It is a canon of construction that general words or expressions following specific words or expressions take their colour from the specific instances … In s. 91 we find not so much specific words followed by general subject, but I consider that the principle is equally applicable. ‘Practice and procedure generally’ must be confined to ‘things of the same kind’ as the specific subjects enumerated, which are all matters strictly procedural in the narrowest sense.’ (at p. 305).
He continued:
I find, therefore, in the framework of the section itself reason to suppose that the intention was not to interpret ‘practice and procedure’ in a wide sense. The provision which allows the rules to adapt or modify a statute does not indicate a contrary intention for, on the narrowest construction of ‘practice and procedure’ it would still have been necessary to adapt some of the procedural rules and forms contained in earlier statutes so as to make them applicable to the new institutions. Moreover, this power of modification and adaptation is expressly confined to ‘the purposes aforesaid and subsidiary matters’. (at p. 306).
Interpreting the section in the narrow sense stated by Kingsmill Moore J the question arises as to whether the granting of station bail by a member of the garda siochana in a garda station comes within the practice and procedure of the District Court, so as to empower the District Court Rules Committee to make rules in respect of it? In my opinion, it does not. The specific matters mentioned in the section, from which the subsequent general words take their colour, are all matters of practice and procedure of the District Court, and do not extend to the conduct, practice or procedure of members of the Gardai in a garda station when an arrested person is taken there. The jurisdiction of a District Justice to enter upon the hearing of an alleged offence triable summarily depends, and has always depended, on the making of a complaint before a person authorised to receive the complaint. Such persons are the District Justice, a peace commissioner, or the clerk of the District Court. They do not however include a member of the gardai. An information or complaint to an authorised person is the very foundation of the jurisdiction of the District Court — see Kingsmill Moore J in Attorney General (McDonnell) v Higgins, [1964] IR 374 at p. 390; Director of Public Prosecutions v Gill [1980] IR 263. When therefore a complaint is made to a District Justice or his clerk, the District Court has seisin of the case and the practice and procedure of the District Court comes into play. Where however the arrested person is charged in the garda station and released on bail, that charge does not constitute the complaint, and the District Court does not get seisin of the matter until the charge is laid before the District Justice. Indeed, the District Justice may never have seisin of the case. There must be many cases, in particular in rural areas, in which charges made in the garda station, followed by release on station bail, are not proceeded with for one reason or another, in which event the matter does not come before the District Court.
In my opinion, therefore, the practice and procedure of the gardai in relation to station bail granted under s. 31 of the Criminal Procedure Act, 1967, does not come within the parameters of the ‘practice and procedure of the District Court generally’, and the 1985 rules were made without jurisdiction. From 1842 to 1985 station bail was available until the next sitting of the Justice of the Peace or the District Justice as the case may be for the court area in which the person was arrested. In practice, this can mean on the next day or on the day following that day (if the arrest is made on a Saturday) in the Dublin Metropolitan District, or a much later date in rural court areas, in some of which the District Justice sits only once each fortnight or in some cases each month.
Notwithstanding my conclusion that the 1985 Rules are ultra vires the powers given to the District Court Rules Committee under s. 91 of the 1924 Act, it appears to me that the option of admitting the arrested person to bail for a comparatively lengthy period makes good sense. This was apparently the view of the District Court Rules Committee, the members of which have considerable experience of the operation of station bail. Admitting to bail to the next sitting of the court may be neither a convenient nor an appropriate time for the accused person, or the gardai, and the alternative option would allow for greater flexibility, to the benefit of both the arrested person and the Gardai. This is particularly so at a time such as the present when the crime rate is high and the resources of the Gardai are stretched to the limit. It is important to bear in mind that the liberty of the arrested person would not be in question. He would be on bail and not in custody until the matter came before the District Justice. But as such matters are not within the jurisdiction of the Rules Committee, the only manner in which the option of admitting to bail for a period not exceeding thirty days, as was provided for in the rule now condemned, would be by way of a suitable amendment to s. 31 of the Criminal Procedure Act, 1967.
In the instant case, the invalidity of the 1985 Rule can be of no benefit to the prosecutor in this appeal. As has been pointed out in the judgments of Walsh J and Henchy J the fact that he attended the hearing of the District Court on 6 March 1985, when the complaint was made to the District Justice, was sufficient to give jurisdiction to the District Justice in respect of the summary offence with which he was charged. For that reason, I would hold that he was not entitled to certiorari.
I would accordingly allow the cause shown and discharge the order of certiorari made in the High Court.
HEDERMAN J:
In my opinion the District Court Rules committee exceeded its statutory powers in this matter.
The rule in question does not deal with ‘the practice or procedure of the District Court’, but purports to regulate the exercise of certain statutory powers vested in the members of the garda siochana which pertain to arrest without warrant and the release on what is commonly known as ‘station bail’.
The powers and functions of the garda siochana under S. 31 of the Criminal Procedure Act, 1967 are governed solely by that statute and deal exclusively with the powers of the police, the regulation of which are not within the competence of the District Court Rules Committee. Consequently in my opinion the rule in question is ultra vires. However, for the reasons stated in the judgment of Walsh J the consequences of this invalidity do not affect the authority of the District Justice to deal with the case.
In my opinion the appeal should be allowed and the conditional order discharged.
McCARTHY J:
I agree with the view of Walsh J that s. 34 of the Courts (Supplemental Provisions) Act, 1961, dealing with the jurisdiction vested in or exercised by the District Court as to pleading, practice and procedure generally, including liability to costs did not authorise the making of rule 39(1) substituted by the District Court (Criminal Procedure Act, 1967) Rules, 1985 and, consequently, this rule is ultra vires the District Court Rules Committee and void. The constitutional doctrine of the separation of powers of government make such a conclusion inevitable. I agree, therefore, that the matter is entirely governed by s. 31 of the Criminal Procedure Act, 1867. A court sitting several days later, on a date convenient to the gardai, is not the appropriate time and place within the meaning of s. 31. As a result the recognisance for his due appearance before the District Court on the 6th March was unenforceable, although, of course, the prosecutor could have been lawfully rearrested on the same charge or summonsed in respect of it. It may well be that he was under no obligation to attend court on 6 March but he did, and once there the entering of the charge before the District Justice constituted a valid complaint and gave jurisdiction for the adjournment and remand orders.
If the prosecutor feels a sense of grievance that he unwittingly provided one of the ingredients of jurisdiciton, which would have been absent if he had stayed away from the District Court on the 6 March, he may console himself with the reflection that if the station house officer at Coolock Garda Station on the night of 1/2 March 1985 had held any doubts about his power to admit to ‘station bail’ the prosecutor would have enjoyed one night as a prisoner in that garda station. The conclusion that the law is against his case is not troubled by concern that he has any merits.
I would allow this appeal, allow the cause shown and discharge the conditional order.
[1988]
1 I.R. Byrne v. Grey
Hamilton P. 33
H.C.
Ryan v. O’Callaghan (Unreported, High Court, Barr J., 22nd July, 1987) and Berkeley v. Edwards (Unreported, High Court, Hamilton P., 9th October, 1987) applied.
Cases mentioned in this report:
Reg. v. I.R.C., Ex p. Rossminster [1980] A.C. 952; [1980] 2 W.L.R. 1; [1979] 3 All E.R. 385; [1980] 1 All E.R. 80; 70 Cr. App. R. 157.
Rex v. Electricity Commissioners. Ex parte London Electricity Joint Committee Co. (1920), [1924] 1 K.B. 171.
The State (Glover) v. McCarthy [1981] I.L.R.M. 47.
The State (Shannon Atlantic Fisheries Ltd.) v. McPolin [1976] I.R. 93.
Berkeley v. Edwards (Unreported, High Court, Hamilton P., 9th October, 1987).
Ryan v. O’Callaghan (Unreported, High Court, Barr J., 22nd July, 1987).
Judicial Review.
By originating notice of motion dated the 17th February, 1987, the applicant applied to the High Court, pursuant to an order of O’Hanlon J. made on the 16th February, 1987, giving him liberty to do so, for:
“(1) An order of certiorari to quash a search warrant dated the 3rd August, 1986, in respect of 50, White Brook Park, Tallaght in the City of Dublin.
(2) A declaration that s. 26 of the Misuse of Drugs Act, 1977, as amended by s. 13 of the Misuse of Drugs Act, 1984, is in contravention (sic.) of Bunreacht na hÉireann and is not part of the law of the State insofar as it purports to give power to issue search warrants to a Peace Commissioner.”
The facts and arguments have been summarised in the headnote and are set out in the judgment of Hamilton P., infra.
Peter Charleton for the applicant.
Maurice Gaffney S.C. (with him Susan Denham S.C. ) for the respondents.
Cur. adv. vult.
Hamilton P.
9th October 1987
The applicant herein resides at 8, Greenfort Lawn, Clondalkin in the city of Dublin and on the 16th February, 1987, applied to the High Court pursuant to the provisions of Order 84, rule 20 of the Rules of the Superior Courts, 1986, for leave to apply for an order of certiorari by way of an application for judicial review in respect of a warrant to search dated the 3rd August, 1986, in respect of 50, White Brook Park, Tallaght in the city of Dublin issued by the first respondent herein.
The application was grounded on the statement dated the 17th February, 1987, signed by the solicitor for the applicant and the affidavit of the applicant verifying the facts therein set forth.
[1988]
1 I.R. Byrne v. Grey
Hamilton P. 34
H.C.
On the 16th February, 1987, it was ordered that:
(1) The question of whether the applicant is precluded by lapse of time from making application for leave to apply for judicial review in respect of the said warrant to search dated the 3rd August, 1986, be reserved to the hearing of the motion.
(2) The applicant to have leave to apply for an order of certiorari by way of application for judicial review in accordance with paragraph (d) 1, 2 & 3 of the said statement dated the 17th February on the grounds set forth in paragraph (e) 1 and 2 thereof.
(3) The application for judicial review be made by originating notice of motion.
(4) That the said applicant serve the said notice of motion together with a copy of the said statement dated the 17th February, 1987, and the said verifying affidavit and a copy of the order on the first respondent in the title hereof, and the Chief State Solicitor on behalf of the second and third respondents in the title hereof and on behalf of the Director of Public Prosecutions, the notice party herein.
The notice delivered in accordance with the provisions of Order 84, rule 20 stated that the grounds upon which the relief was sought were:
1. The peace commissioner in issuing the search warrant was not and could not have been satisfied by information on oath of a member of the Garda SÃlochána that there was reasonable grounds for suspecting any of the matters contained in s. 26, sub-s. (1) (aa) of the Misuse of Drugs Act, 1977, as amended by s. 13 of the Misuse of Drugs Act, 1984, and in particular because no proper or sufficient information was laid before the respondent peace commissioner whereby he could so he reasonably satisfied.
2. That s. 26 of the Misuse of Drugs Act, 1977, as amended by s. 13 of the Misuse of Drugs Act, 1984, is inconsistent with the provisions of Bunreacht na hÉireann and in particular with the following:
(i) Article 34 thereof in that in issuing the aforesaid search warrant the aforesaid peace commissioner respondent was purporting to administer justice.
(ii) That the provisions of the aforesaid Act in allowing peace commissioners to issue search warrants is inconsistent with the protection afforded the citizen by Article 40, section 5.
(iii) That by issuing a search warrant the aforesaid respondent peace commissioner was embarking upon part of the trial of the accused which is a judicial function inconsistent with the due course of law guaranteed to the accused by Article 34.
The applicant had claimed in addition to the order of certiorari a declaration that s. 26 of the Misuse of Drugs Act, 1977, as amended by s. 13 of the Misuse of Drugs Act, 1984, is invalid having regard to the provisions of Bunreacht na hÉireann or in the alternative is invalid having regard to the provisions of
[1988]
1 I.R. Byrne v. Grey
Hamilton P. 35
H.C.
Bunreacht na hÉireann and as such not part of the law of the State in so far as it purports to give power to issue search warrants to a Peace Commissioner.
Section 26, sub-s. 1 of the Misuse of Drugs Act, 1977, provides that:
“(1) If a Justice of the District Court or a peace commissioner is satisfied by information on oath of a member of the Garda SÃochána that there is reasonable ground for suspecting that –
(a) a person is in possession in contravention of this Act on any premises of a controlled drug, a forged prescription or a duly issued prescription which has been wrongfully altered and that such drug or prescription is on a particular premises, or
(b) a document directly or indirectly relating to, or connected with, a transaction or dealing which was, or an intended transaction or dealing which would if carried out be, an offence under this Act, or in the case of a transaction or dealing carried out or intended to be carried out in a place outside the State, an offence against a provision of a corresponding law within the meaning of section 20 of this Act and in force in that place, is in the possession of a person on any premises,
such Justice or Commissioner may issue a search warrant mentioned in subsection (2) of this section.”
Section 13 of the Misuse of Drugs Act, 1984, provides inter alia that:
“Section 26 of the Principal Act is hereby amended by –
(a) the insertion of “or other land” after “premises” in paragraph (a);
(b) the insertion of the following paragraph after paragraph (a):
‘(aa) opium poppy, a plant of the genus Cannabis or a plant of the genusErythroxylon is being cultivated contrary to section 17 of this Act on or in any premises or other land, or’;
(c) The substitution of the following subsections for subsection (2):
‘(2)A search warrant issued under this section shall be expressed and operate to authorise a named member of the Garda SÃochána, accompanied by such other members of the Garda SÃochána and such other persons as may be necessary, at any time or times within one month of the date of issue of the warrant, to enter (if need be by force) the premises or other land named in the warrant, to search such premises or other land and any persons found therein, to examine any substance, article or other thing found thereon or therein, to inspect any book, record or other document found thereon, and, if there is reasonable ground for suspecting that an offence is being or has been committed under this Act in relation to a substance, article or other thing found on such premises or other land or that a document so found is a document mentioned in subsection (1) (b) of this section or is a record or other document which the member has reasonable cause to believe to be a document which may be required as evidence in proceedings for an offence under this Act, to seize and detain the substance, article, document or other thing, as the case may be.
[1988]
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Hamilton P. 36
H.C.
(3) Where any premises or other land is entered pursuant to a warrant issued under this section, the member of the Garda SÃochána named in the warrant may do either or both of the following:
(a) arrest without warrant any person or persons found on such premises or other land for the purpose of searching him or them,
(b) so arrest any such person or persons and keep him or them, as may be appropriate, under arrest until such time as such of the powers of search or examination as he wishes to exercise pursuant to the warrant have been exercised by him’.”
The notice of opposition filed on behalf of the respondents and the notice party pleaded that:
1. The peace commissioner in issuing the search warrant herein acted in accordance with law and within his jurisdiction.
2. The peace commissioner was entitled to accept as true and to act upon the sworn information herein of a member of An Garda SÃochána.
3. The sworn information was a sufficient basis for the reasonable suspicion of the peace commissioner.
4. It is denied that s. 26 of the Misuse of Drugs Act, 1977, as amended by s. 13 of the Misuse of Drugs Act, 1984, is inconsistent with the provisions of Bunreacht na hÉireann as alleged or at all.
(i) It is denied that the said sections are inconsistent with Article 34 of the Constitution in that the peace commissioner was not purporting to administer justice.
(ii) It is denied that the said sections are inconsistent with the protections afforded the citizens by Article 40, s. 5 of the Constitution.
(iii) (a) It is denied that by issuing a search warrant as aforesaid the respondent peace commissioner was embarking upon part of the trial of the accused.
(b) The issue of a search warrant is not the exercise of a judicial function.
(c) If the issue of a search warrant is a judicial function (which is not admitted) it is not inconsistent with the due course of law guaranteed to the accused by Article 34.
5. The decision and act of the peace commissioner being within jurisdiction no cause for certiorari exists. If the peace commissioner erred (which is denied) he erred within jurisdiction.
6. The applicant is out of time in making this application. The applicant delayed excessively in bringing the application. The delay is unreasonable. In the circumstances, the applicant should be denied the remedy of certiorari.
7. As a matter of discretion on order of certiorari ought to be refused as the proper place to make this application is at the trial of the action.
8. As a matter of discretion an order of certiorari ought to be refused in the circumstances of the case.
[1988]
1 I.R. Byrne v. Grey
Hamilton P. 37
H.C.
The facts relevant to this application are that:
1. On the 3rd August, 1986, the first respondent herein issued a search warrant authorising Detective Garda Michael Doyle accompanied by such other members of the Garda SÃochana and such other persons as might be necessary at any time or times within one month from the date of issue of the warrant to enter (if need be by force) the premises at 50, White Brook Park, Tallaght in the City of Dublin and to execute a search thereon in accordance with the terms of the said warrant.
The said warrant recited that the first respondent was satisfied by the information on oath of the said Detective Garda Michael Doyle that there was reasonable ground for suspecting that a plant of the genus Cannabis was being cultivated in the premises contrary to s. 17 of the Misuse of Drugs Act, 1977 and 1984.
2. The information on oath upon which the said search warrant was issued was made by the said Detective Garda Michael Doyle on the 3rd August, 1986, and provides:
“The information of Detective Garda Michael Doyle of the Garda SÃochána, who, upon oath, states as follows:
‘I am a member of the Garda SÃochána and I have reasonable grounds for suspecting that a plant of the genus cannabis is being cultivated contrary to s. 17 of the Misuse of Drugs Act, 1977 and 1984, on or in the premises or other land at 50, White Brook Park, Tallaght, Dublin 24.
I hereby apply for a warrant to search the said premises pursuant to s. 26 of the Misuse of Drugs Act, 1977 and 1984.
Signed: Michael Doyle, Det. Garda
Sworn: 3rd August, 1986
Signed: Thomas Grey P.C.
Peace Commissioner assigned to the said county and surrounding counties’.”
3. Following upon the issue of the said search warrant a search of the premises at 50, White Brook Park, Tallaght in the County of the City of Dublin took place.
4. The applicant herein was on the said premises visiting the occupants thereof.
It appears from the applicant’s affidavit that following a thorough search of the premises, heroin was found in a room together with a scales, a blade containing traces of heroin and a second packet of heroin. He avers that upon search he was found to be in possession of £65 together with some plastic bags in the pocket of his trousers. He states that as a result of the aforesaid search, he now stands trial before the Circuit Court charged with:
Count No. 1 unlawful possession of a controlled drug, contrary to s. 3 of the Misuse of Drugs Act, 1977, and the Misuse of Drugs Act, 1984.
Count No. 2 possession of a controlled drug for the purpose of unlawful supply to another, in contravention of the Misuse of Drugs Regulations, 1979, made under s. 5 of the Misuse of Drugs Act, 1977, and contrary to s. 15 of the Misuse of Drugs Act, 1977, and the Misuse of Drugs Act, 1984.
[1988]
1 I.R. Byrne v. Grey
Hamilton P. 38
H.C.
He states in his affidavit that if the aforesaid search had not taken place, he would not now be standing trial on the said charge before the Dublin Circuit Criminal Court and that in searching the premises aforesaid the members of the Garda SÃochána were interfering with his constitutional right to privacy and in particular his exercise of that right to engage upon a family visit without being subject to the premises upon which the visit was taking place being searched, his body being searched and he being arrested pursuant to s. 25 of the Misuse of Drugs Act, 1977, as amended.
It is quite clear from a consideration of the terms of s. 26 of the Misuse of Drugs Act, 1984, that a search warrant issued in accordance with the provisions of s. 26, sub-s. 1 of the Misuse of Drugs Act, 1977, confers considerable powers on members of the Garda SÃochána.
It authorises them within one month of the date of issue of the warrant, to enter (if need be by force) the premises or other lands named in the warrant; to search such premises or other land and any persons found therein; to examine any substance, article or other thing found thereon or therein; to inspect any book, record or other document found thereon; and if there is reasonable ground for suspecting that an offence is being or has been committed under this Act in relation to a substance, article or other thing found on such premises or other land or that documents so found are documents mentioned in sub-s. (1) (b) of s. 26 or is a record or other document which the member has reasonable cause to believe to be a document which may be required as evidence in proceedings for an offence under the Act, to seize and detain the substance, article, document or other thing as the case may be and further gives them authority to arrest without warrant any person or persons found on such premises or other land for the purpose of searching him or them and so arrest any such person and keep him or them as may be appropriate under arrest until such time as such of the powers of search for examination as he wishes to exercise pursuant to the warrant have been exercised by him.
These powers encroach on the liberty of the citizen and the inviolability of his dwelling as guaranteed by the Constitution and the courts should construe a statute which authorises such encroachment so that it encroaches on such rights no more than the statute allows, expressly or by necessary implication.
The statute authorising such encroachment provides at s. 26 thereof that a justice of the District Court or a peace commissioner must be satisfied by information on oath of a member of the Garda SÃochána that there is reasonable ground for the suspicion before he is entitled to issue the search warrant mentioned in the Act as amended.
In construing this section, a court ought, in the words of Lord Diplock in the course of his judgment in Reg. v. I.R.C., Ex p. Rossminster Ltd. [1980] A.C. 952, at p. 1008:
“. . . to remind itself, if reminder should be necessary, that entering a man’s house or office, searching it and seizing his goods against his will are tortious acts against which he is entitled to the protection of the court unless the acts can be justified either at common law or under some statutory authority. So
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H.C.
if the statutory words relied on as authorising the acts are ambiguous or obscure, a construction should be placed upon them that is least restrictive of individual rights which would otherwise enjoy the protection of the common law. But judges in performing their constitutional function of expounding what words used by Parliament in legislation mean, must not be over-zealous to search for ambiguities or obscurities in words which on the face of them are plain, simply because the members of the court are out of sympathy with the policy to which the Act appears to give effect.”
In this country, the individual rights referred to as enjoying the protection of the common law also enjoy the protection of the Constitution.
It is quite clear that the warrant impugned in this application was issued by the first respondent, and is so stated to have been issued, pursuant to s. 26 of the Misuse of Drugs Acts, 1977 and 1984.
The warrant states that the peace commissioner was satisfied by the information on oath of Detective Garda Michael Doyle that there was reasonable ground for suspecting that a plant of the genus cannabis was being cultivated contrary to s. 17 of the Misuse of Drugs Acts, 1977 and 1984, on the premises at 50, White Brook Park, Tallaght in the City of Dublin.
Section 26 makes it a condition precedent to the issue of the warrant that the District Justice or peace commissioner should himself be satisfied by information on oath that facts exist which constitute reasonable ground for suspecting that an offence has been or is being committed.
The information sworn in this case by Det. Garda Michael Doyle merely stated as follows:
“I am a member of the Garda SÃochána and I have reasonable grounds for suspecting that a plant of the genus cannabis is being cultivated contrary to s. 17 of the Misuse of Drugs Act, 1977 and 1984, on or in the premises or other land at 50, White Brook Park, Tallaght, Dublin 24.”
In the course of his judgment in Reg. v. I.R.C., Ex p. Rossminster [1980] A.C. 952 Lord Salmon states at p. 1019 of the report that:
“Section 20 C makes a wide inroad into the citizen’s basic human rights, the right to privacy in his own home and business premises and the right to keep what belongs to him. It allows the Inland Revenue the power to force its way into a man’s home or offices and deprive him of his private papers and books. In my view, it provides only one real safeguard against an abuse of power. That safeguard is not that the Inland Revenue is satisfied that there is reasonable ground for suspecting that an offence involving fraud in relation to tax has been committed, but that the judge who issues the search warrant is so satisfied after he has been told on oath by the Inland Revenue full details of the facts which it has discovered. That is why I am inclined to the view that it is implicit in section 20 C that a search warrant signed by the judge should state that he is so satisfied, i.e., that the warrant should always give the reason for its issue. In any event, I hope that in the future the practice will always be that such warrants state plainly that the judge who signed them is so satisfied.
[1988]
1 I.R. Byrne v. Grey
Hamilton P. 40
H.C.
I am, however, convinced that search warrants like the present are invalid because they recite as the reason for their issue only that an officer of the Inland Revenue has stated on oath that there is reasonable ground for suspecting that an offence involving fraud in relation to tax has been committed. If the judge gives that as his reason for issuing the warrant, it seems to me to follow that his reason for issuing it cannot be that he is so satisfied by the information given to him on oath by an officer of the Inland Revenue of the detailed facts which the officer has ascertained; but that the judge’s reason for issuing the warrant was because the officer had stated on oath that there is reasonable ground to suspect, etc.”
In my view, these words apply with equal force to the issue of search warrants pursuant to the provisions of s. 26 of the Misuse of Drugs Act, 1977.
It is quite clear that the District Justice or peace commissioner issuing the warrant must himself be satisfied that there is reasonable ground for suspicion. He is not entitled to rely on a mere averment by a member of the Garda SÃochána that he, the member of the Garda SÃochána, has reasonable grounds for suspicion. A member of the Garda SÃochána seeking the issue of a warrant pursuant to the provisions of s. 26 of the Misuse of Drugs Acts, 1977 and 1984, must be in a position to so satisfy either the District Justice or the peace commissioner of the relevant facts so that the District Justice or the peace commissioner can satisfy himself in accordance with the requirements of the section. He is not entitled to rely on the suspicion of the member of the Garda SÃochána applying for the warrant.
As it is quite clear from the terms of the warrant, the first respondent in this case relied on the information on oath of the member of the Garda SÃochána which merely stated that he, the member of the Garda SÃochÃna, had reasonable grounds for suspicion. I am satisfied that the first respondent acted without jurisdiction in issuing the said warrant because he personally had no information before him which would enable him to be satisfied that there was reasonable grounds for suspicion.
It is quite clear that in deciding whether or not to issue the warrant the first respondent was obliged to act judicially. As stated by Lord Justice Atkin in Rex v. Electricity Commissioners. London Electricity Joint Committee Co. (1920) Ex parte [1924] 1 K.B. 171 at p. 205:
“Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King’s Bench Division exercised in these writs.”
However, the writ of certiorari is a discretionary remedy and is subject to the Rules of the Superior Courts. Order 84, rule 21 of the Rules of the Superior Courts provides that:
“An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, or six months where the relief sought is
[1988]
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certiorari, unless the Court considers that there is good reason for extending the period within which the application shall be made.”
The search warrant sought to be impugned herein was issued on the 3rd August, 1986, and the application to seek relief by way of judicial review was made on the 16th February, 1987, thirteen days approximately after the expiry of the time limited by the Rules. The order giving the applicant liberty to apply for an order of certiorari by way of an application for judicial review provided that:
“It is ordered
(1) That the question of whether the applicant is precluded by lapse of time from making application for leave to apply for judicial review in respect of the said warrant to search dated the 3rd August, 1986, be reserved to the hearing of the motion.”
Having regard to the short period, namely, 13 days, involved, I am satisfied that the applicant is not precluded from making the application by lapse of time and am satisfied to extend the period within which the application should be made, though I am satisfied that applications of this nature should be made promptly.
As I have already stated, the issue of an order of certiorari is a discretionary one and I agree with the statement of Gannon J. made during the course of his judgment in The State (Glover) v. McCarthy [1981] I.L.R.M. 47 at p. 51 when he stated:
“It seems to me the principal factor which would guide the court in the exercise of its discretion in a case where the alternatives of certiorari and appeal lie is the objective of achieving a just resolution of the matters in issue with minimal inconvenience consistent with regularity of judicial procedures.”
Though in the course of the above statement he refers to the alternative of”appeal”, the statement applies with equal validity when there is another forum in which “the matters in issue” can be determined.
In the course of his judgment in The State (Shannon Atlantic Fisheries Ltd.) v. McPolin [1976] I.R. 93 Finlay P., as he then was, stated at p. 100 of the report:
“I would be prepared to accept the general principle that the Court should in its discretion refuse to make an order of certiorari in a case where it is clear that the applicant can derive no benefit from it.”
In this case, the warrant was issued on the 3rd August, 1986, and as appears from the affidavit of the applicant it was executed by the members of the Garda SÃochána therein named a short time thereafter.
Consequently, the warrant sought to be impugned is spent and the only interest which the applicant has in seeking to have the said warrant quashed by way of certiorari is to seek to have rendered inadmissible in the course of his trial the evidence obtained as a result of the said search. This is his interest and the only matter in issue.
In my view, the objective of achieving a just resolution of this matter is in the course of his trial. It is a matter for the trial judge to decide whether the evidence sought to be admitted is admissible or not. Consequently, I will refuse the application made on behalf of the applicant.
[1988]
1 I.R. Byrne v. Grey
Hamilton P. 42
H.C.
In addition the applicant has sought a declaration that s. 26 of the Misuse of Drugs Act, 1977, as amended by s. 13 of the Misuse of Drugs Act, 1984, is invalid having regard to the provisions of Bunreacht na hÉireann and in particular having regard to:
(1) Article 34 thereof in that in issuing the aforesaid search warrant the aforesaid peace commissioner, respondent, was purporting to administer justice.
(2) That the provisions of the aforesaid Act in allowing peace commissioners to issue search warrants is inconsistent with the protection afforded the citizen by Article 40, section 5.
(3) That by issuing a search warrant as aforesaid the respondent peace commissioner was embarking upon part of the trial of the accused which is a judicial function inconsistent with the due course of law guaranteed to the accused by Article 38.
In the course of my judgment in the course of an application for judicial review in Berkeley v. Edwards (Unreported, High Court, 9th October, 1987) I stated that:
“In Ryan v. O’Callaghan Barr J. in his judgment (Unreported, High Court, 22nd July, 1987) dealt in detail with the nature of the powers of a peace commissioner to issue a search warrant pursuant to the provisions of s. 42, sub-s. 1 of the Larceny Act, 1916, and the basis for such powers contained in s. 88, sub-s. 3 of the Courts of Justice Act, 1924.
The issue raised and argued in that case was whether a peace commissioner in purporting to exercise the power granted to him by s. 42 of the Larceny Act, 1916, by issuing a warrant authorising the entry and search of the dwelling house of the citizen was thereby exercising judicial power in a criminal matter which is a function lawfully exercisable only by judges appointed under the Constitution.
Counsel for the applicant in that case had submitted that the power vested in the peace commissioner to issue in a criminal matter a warrant to search the dwelling house of a citizen pursuant to an application under s. 42 of the Act of 1916 is inconsistent with the provisions of the Constitution for two reasons. First, it necessarily involves the invasion of the constitutional right of every citizen to the privacy of his home and, therefore, such a power is exercisable only by a judicial authority appointed under the Constitution. Secondly, it was argued that the issuing of a search warrant is part of the process of prosecuting crime and, therefore, is a function exercisable only by judges appointed under the Constitution.
In the course of his judgment Barr J. postulated the question:
‘Does it follow that the procedure for obtaining a search warrant from a peace commissioner which is laid down in s. 42 of the Larceny Act, 1916, is a method which ignores the fundamental norms of the legal order postulated by the Constitution?’
He went on to say that:
‘In my view it does no such thing. I am satisfied that it is in the interest of the common good that there should be a simple procedure
[1988]
1 I.R. Byrne v. Grey
Hamilton P. 43
H.C.
readily available to the police whereby in appropriate cases they may obtain such warrants relating to premises, including the dwellings of citizens, so as to facilitate them in the investigation of larceny and other allied offences. The procedure laid down in s. 42, sub-s. 1 of the Act of 1916 contains important elements for the protection of the public including all those who might be found on the premises to be searched. The investigating police officer must swear an information that he has reasonable cause for suspecting the stolen property to be found at the premises to be searched and he must satisfy a peace commissioner, who is an independent person unconnected with criminal investigation per se, that it is right and proper to issue the warrant. I am satisfied that such warrantsbona fide sought and obtained from a peace commissioner pursuant to the procedure laid down in s. 42 of the Larceny Act, 1916, are not tainted with any constitutional illegality and provide lawful authority for the search of the premises to which they relate.’
I agree with the views of Barr J. as expressed above.
The second point argued on behalf of the applicant in that case was that the issuing of a search warrant pursuant to s. 42 of the Act of 1916 is part of the process of prosecuting crime and, therefore, is a function exercisable only by a judge appointed under the Constitution.
Later on in his judgment in Ryan v. O’Callaghan (Unreported, High Court, 22nd July, 1987) Barr J. stated that:
‘The search of premises by the police under the authority of a search warrant is no more than part of the investigative process which may or may not lead to the arrest and charging of a person in connection with the crime under investigation or any other crime. In my view, the prosecution of an offence commences when a decision is made to issue a summons or prefer a charge against the person in respect of the particular crime alleged. It follows, therefore, that the issue of a search warrant prior to a commencement of a prosecution is part of the process of criminal investigation and is executive rather than judicial in nature.’
He went on to say:
‘I am satisfied that the second ground advanced on behalf of the applicant also fails and that the issuing of a search warrant by a Peace Commissioner pursuant to the provisions of s. 42 of the Act of 1916 is not contrary to the Constitution.’
I agree with the views expressed by Barr J. on this point also and consequently, I am satisfied that s. 88, sub-s. 3 (b) of the Courts of Justice Act, 1924, is not inconsistent with or void having regard to the provisions of Bunreacht na hÉireann .”
These remarks apply with equal validity in this case and consequently I will refuse to make any of the declarations sought.
Damache v DPP
[2012] IESC 11
Judgment of the Court delivered on the 23rd day of February, 2012 by Denham C.J.
1. This is an appeal by Ali Charaf Damache, the applicant/appellant, referred to as “the appellant”, from the decision of the High Court (Kearns P.) given on the 13th May, 2011, refusing the appellant’s application.
Judicial Review
2. The appellant brought an application by way of judicial review seeking, inter alia:-
(a) A declaration that s. 29(1) of the Offences against the State Act, 1939 (as inserted by s. 5 of the Criminal Law Act, 1976), and referred to as s. 29(1) of the Act of 1939, is repugnant to the Constitution;
(b) a stay on any further step being taken in the prosecution presently before Waterford Circuit Criminal Court entitled D.P.P. v. Charafe Damache (Bill No. CT0041/10), pending the determination of these judicial review proceedings.
3. The application for judicial review was grounded on an affidavit of Caroline Egan, Solicitor for the appellant. She deposed that she is in possession of a book of evidence relating to the prosecution of the appellant and that part of her information is taken from the statement of Detective Superintendent Dominic Hayes in the book of evidence.
4. Caroline Egan, basing her affidavit on the statement of Detective Superintendent Hayes, deposed that it would appear that:-
“In September 2009, Detective Superintendent Hayes who is attached to the South Eastern Garda Region based at Waterford Garda Station, commenced an investigation into an alleged conspiracy to murder Mr. Lars Vilks, a Swedish cartoonist who had depicted the Islamic prophet Mohammad with the body of a dog, thereby provoking serious unrest in several Muslim countries.
It was suspected that the Applicant was involved in the said conspiracy along with other individuals resident in Ireland. It was also subsequently suspected that on the 9th January 2010, the Applicant made a threatening phone call to an individual in the United States.
During the course of the investigations, D/Superintendent Hayes personally received from D/Superintendent Peter Kirwan, of the Crime and Security Section of An Garda Síochána, intelligence reports from the FBI and phone recordings made in the United States. D/Superintendent Hayes personally applied to Chief Superintendent Kevin Donahue for telephone billing relating to a mobile phone connected to the investigation.
On the 5th and 8th March 2010, D/Superintendent Hayes conducted briefings at Waterford Garda Station and heard from D/Inspector Michael Leahy in relation to the progress of the investigation.
On the 8th March 2010, D/Superintendent Dominic Hayes granted a search warrant under s. 29(1) of the Offences Against the State Act 1939 (as inserted by s. 5 of the Criminal Law Act 1976) to D/Sergeant David Walsh. The search warrant was granted in relation to 1 John Colwyn House, High Street, Co. Waterford, the Applicant’s dwelling at the time, and was executed on the 9th March 2010.”
5. Ms. Egan deposed that the appellant, his wife and child, were present at the time of the search, that the appellant was arrested for the offence of conspiracy to murder contrary to s. 71 of the Criminal Justice Act, 2006, and that items of property were removed from the appellant’s home as evidence, including a mobile phone.
6. The appellant has been charged with an offence, but not the offence on which he was arrested. Ms Egan deposed that the appellant was subsequently detained at Waterford Garda Station and charged with an offence contrary to s. 13 of the Post Office (Amendment) Act, 1951, as amended, that he did on the 9th January, 2010 send a message by telephone which was of a menacing character to Madjid Moughni. Ms. Egan deposed that it is alleged that the appellant made the said phone call on a Nokia mobile phone which was seized during the search.
7. Ms. Egan further deposed that the appellant was served with a book of evidence in relation to the charge at Waterford District Court on the 24th May, 2010. She deposed that she was unaware of the date he was returned for trial, as she came on record in relation to the appellant’s case on the 17th November, 2010, and that the appellant was previously represented by a different solicitor.
8. In her affidavit Ms. Egan sets out the grounds for the application for judicial review. These include:-
(a) I say and believe that the said search warrant was issued by a member of An Garda Síochána who had directed the investigations relating to the appellant for approximately 6 months prior to the appellant’s arrest.
(b) I say that D/Superintendent Hayes has asserted that the warrant was issued because he was satisfied that he had reasonable grounds for believing that evidence relating to the unlawful possession of firearms within the State would be found at the home of the appellant. I say it is not clear from the Book of Evidence to what this is alleged to relate.
(c) I say that while I am not in possession of all relevant information in relation to the said investigation, it would appear that an impartial decision-maker might have refused to issue a search warrant for the dwelling in relation to the possession of firearms within the State.
(d) I say that in any event, the appellant was entitled as a matter of natural and constitutional justice to have the decision in relation to the said search warrant made by a judicial personage or, at the very least, by someone impartial and unconnected with the investigation.
(e) I say and believe, however, that having regard to the decision of the Court of Criminal Appeal in D.P.P. v. Birney & Others [2007] 1 IR 337, the wording of s. 29(1) cannot be understood to mean that the member of An Garda Síochána who issues the search warrant must be independent of the investigation to which the search warrant relates.
(f) I say that, accordingly, s. 29(1) of the Offences Against the State Act, 1939 (as inserted by s. 5 of the Criminal Law Act 1976) is repugnant to the Constitution as it permits a member of An Garda Síochána who has been actively involved in a criminal investigation to determine whether a search warrant should issue in relation to the said investigation. [ … ].
Delay
9. There was delay by the appellant in seeking judicial review. The background facts include the following:-
(i) On the 8th March 2010 D/Superintendent Dominic Hayes granted a search warrant under section 29(1) of the Offences Against the State Act 1939 (as inserted by section 5 of the Criminal Law Act 1976) to D/Sergeant David Walsh.
(ii) The search warrant was granted in relation to 1 John Colywn House, High Street, Waterford.
(iii) The warrant was executed on the 9th March 2010.
(iv) The appellant was present at the time of the search, along with members of his family.
(v) The appellant was arrested for conspiracy to murder contrary to s. 71 of the Criminal Justice Act 2006. The appellant was later charged with an offence contrary to s. 13 of the Post Office (Amendment) Act 1951, alleged to have been committed on 9 January 2010.
(vi) The appellant was charged on the 15th March 2010 with the offence contrary to s. 13 of the Post Office (Amendment) Act, 1951.
(vii) On the 24th May 2010 the appellant was served with the Book of Evidence.
(viii) The appellant sought and obtained leave to bring the within judicial review proceedings on the 2nd December 2010.
(ix) The High Court (Peart J.) granted leave to apply by way of an application for judicial review for a declaration that s. 29(1) of the Offences Against the State Act, 1939 (as inserted by s. 5 of the Criminal Law Act 1976) is repugnant to the Constitution.
(x) The prosecution was listed for trial on the 25th January 2011 at Waterford Circuit Court.
10. No explanation has been given for the delay in seeking judicial review until the 2nd December, 2010. The consequent effect of this order was that the trial of the appellant was postponed pending the determination of the judicial review. The High Court held:-
“The [appellant] had other legal advisors prior to those presently engaged. In circumstances where no explanation has been given by those former advisors for the delay in moving the leave application, the Court at the outset is compelled to conclude that the application has not been launched with the necessary degree of promptitude which is appropriate to the remedy of judicial review. It is also an application brought well outside the three month time period provided for by the Rules of the Superior Courts. A period in excess of six months was allowed to elapse before any challenge to the propriety of the search warrant got off the ground. Quite apart from the fact that this delay is fatal to the [appellant’s] claim for the declaratory relief sought, it also reinforces an unfortunate impression that the judicial review process in this (as in a number of other criminal cases) is being deployed in such a fashion as to delay the ordinary course of criminal trials in this jurisdiction. In recent years a number of judges, myself included, have commented unfavourably about the bringing of very late applications of this nature and it is a practice which must stop if due respect for our criminal process is to be maintained.”
The Court would affirm and adopt the opinion of the President of the High Court.
11. The learned President proceeded to determine the appeal, as has this Court. The core issue on this appeal is the constitutionality of s. 29(1) of the Act of 1939. If these proceedings were dismissed on the basis of the delay of the appellant, it is clear that new proceedings would be instituted by way of plenary summons, thus involving more delay and cost. In all the circumstances, the Court determined that the core issue be decided on these proceedings, and counsel were not heard on the issue of delay. It is most unfortunate that the proceedings were not brought correctly, by way of plenary proceedings, but to minimise delay and cost the Court decided to determine the issue on this appeal.
Premature
12. This case is brought in advance of a trial. No evidence has yet been given. This is well illustrated by the grounding affidavit in these proceedings, deposed by the appellant’s solicitor, based on a statement in the book of evidence of a member of An Garda Síochána. This is an unsatisfactory basis for analysis. However, the appellant has been affected by the section: his home was searched pursuant to a warrant issued under the section. This is not a case about the validity of the warrant. The sole issue is the constitutionality of s. 29(1) of the Act of 1939. In the circumstances the Court did not require to hear counsel on the issue of prematurity.
Constitutionality of s. 29(1)
13. Thus, the issue in the appeal is the constitutionality of s. 29(1) of the Act of 1939.
14. The unamended provision in s. 29(1) of the Offences Against the State Act, 1939 provided:-
“(1) Where an officer of the Garda Síochána not below the rank of chief superintendent is satisfied that there is reasonable ground for believing that documentary evidence of or relating to the commission or intended commission of an offence under any section or sub-section of this Act or any document relating directly or indirectly, to the commission or intended commission of treason is, to be found in any particular building or other place, the said officer may issue to a member of the Garda Síochána not below the rank of inspector a search warrant in accordance with this section.”
15. By s. 5 of the Criminal Law Act, 1976 the following section was substituted for s. 29(1) of the Act of 1939:-
“Where a member of the Garda Síochána not below the rank of superintendent is satisfied that there is reasonable ground for believing that evidence of or relating to the commission or intended commission of an offence under this Act or the Criminal Law Act, 1976, or an offence which is for the time being a scheduled offence for the purposes of Part V of this Act, or evidence relating to the commission or intended commission of treason, is to be found in any building or part of a building or in any vehicle, vessel, aircraft or hovercraft or in any other place whatsoever, he may issue to a member of the Garda Síochána not below the rank of sergeant a search warrant under this section in relation to such place.”
16. The amendment, inter alia, permits a member of the Garda Síochána, not below the rank of superintendent, instead of a chief superintendent as under the Act of 1939, to issue a warrant to a member of the Garda Síochána not below the rank of sergeant, instead of an inspector as under the Act of 1939.
17. The issuing of a search warrant is an administrative act, but it must be exercised judicially. It was accepted that the full panoply of rights do not apply to the issuing of search warrants. Obviously, the law does not require that suspects be put on notice of applications to apply for a search warrant. But, it was submitted on behalf of the appellant, there should be independent and impartial supervision of the issuing of a warrant.
18. In most cases that impartial supervision is exercised by a District Judge, when issuing a search warrant, or by a Peace Commissioner. Thus, third party scrutiny and supervision is built in.
19. It was accepted, on behalf of the appellant, that under a limited number of statutes, relating to serious investigations, members of An Garda Síochána have been granted statutory power to issue search warrants, but, it was submitted, these examples arise in urgent situations, or if immediate action is needed, and as a last resort. Also, such a warrant is required to be executed within a short time, usually 24 hours, while under s. 29(2) the warrant remains valid for a week.
20. The examples opened to the Court of statutes by which the Garda Síochána have power to issue search warrants were as follows:-
(i) Section 16 Official Secrets Act 1963 (allows a search warrant to be issued by a District Judge or, if immediate action is necessary, by a Chief Superintendent or higher);
(ii) Section 14 Criminal Assets Bureau Act, 1996 (allows a search warrant to be issued by a District Judge or, if immediate action is necessary, by a Superintendent or higher);
(iii) Section 8 Criminal Justice (Drug Trafficking) Act 1996 (allows a search warrant to be issued by a District Judge or, if immediate action is necessary, by a Superintendent or higher);
(iv) Section 5 Prevention of Corruption (Amendment) Act 2001 (allows a search warrant to be issued by a District Judge or, if immediate action is necessary, by a Superintendent or higher).
(v) Section 7 of the Criminal Justice (Surveillance) Act 2009 provides that in cases of urgency a surveillance warrant can be issued by a Garda Superintendent, a Colonel in the Defence Forces, or a Revenue Principal Officer.
21. It was submitted, on behalf of the appellant, that the person making the decision at to whether to issue a search warrant, or not, must be independent, impartial and have no material interest in the decision to be made. It was submitted that the issuing of the warrant should be by somebody who is unconnected with the controversy and who can make a decision in an independent and detached manner of whether it is necessary to issue the search warrant.
22. There are echoes in the submissions before this Court and the submissions and decision in The People [Director of Public Prosecutions] v. Birney [2007 1 IR 337. In that case, at p. 370, it was stated that it had been contended on behalf of the first named applicant that the warrant was invalid because it was not issued by a superintendent independent of the investigation, that the issue of the warrant was in breach of the principle nemo iudex in causa sua. It was submitted that the issuance of the warrant by the superintendent offended against two principles, namely: (a) the guarantee of the inviolability of the dwelling under Article 40.5 of the Constitution, and, (b) the guarantee of fair trial enshrined in Article 38 of the Constitution, in that in issuing the warrant the superintendent was acting as a judge in his own cause, namely as head of the investigation.
23. In The People (D.P.P.) v. Birney the Court considered s. 29(1) of the Act of 1939, as amended, under which authority the search warrant had been issued.
The Court held:-
“The Court was not persuaded that s. 29 of the Offences Against the State Act, 1939 precludes the Superintendent, who is in charge of the investigation from issuing such a warrant in the course of the investigation in which he is involved. The Court went on to conclude that on a literal interpretation of the section there was no such prohibition.”
24. This Court agrees with that analysis of the words of s. 29(1) of the Act of 1939. The literal interpretation of the words do not preclude the superintendent in charge of an investigation issuing the warrant.
25. Reference was made to two previous cases where the issue had been raised that if s. 29 of the Act of 2003 did not require that such a warrant be issued by an independent authority, then the section was unconstitutional. In The People (D.P.P.) v. Birney the Court of Criminal Appeal concluded:-
“This Court is likewise satisfied that the wording of s. 29(1) of the Offences Against the State Act is clear and unambiguous. For the applicant’s contention to be correct it would be necessary to read into the words of the statute a proviso that the Superintendent concerned should not be one involved in the particular investigation. This Court can see no basis for so doing. Accordingly this Court does not accept the submissions on behalf of the first named applicant in this regard.”
26. The issue of constitutional validity, which could not be addressed in the Court of Criminal Appeal or the Special Criminal Court, is before this Court. The Court concurs with the analysis that the literal meaning of the words of s. 29(1) of the Act of 1939 do not contain a requirement that the Superintendent should not be involved in the investigation, nor could such a proviso be inferred.
Independent person
27. The principle that the person issuing a search warrant should be an independent person is well established.
28. In Ryan v. O’Callaghan (Unreported, High Court (Barr J.), 22nd July 1987), Barr J. considered the constitutionality of s. 42(1) of the Larceny Act, 1916, which empowered a Peace Commissioner to issue a search warrant in certain circumstances. He held:-
“In light of Mr. Justice Henchy’s definition of ‘save in accordance with law’ in the context of Article 40, Section 4 sub-section (1), does it follow that the procedure for obtaining a search warrant from a Peace Commissioner which is laid down in Section 42 of the 1916 Act is a method which ignores the fundamental norms of the legal order postulated by the Constitution? In my view it does no such thing. I am satisfied that it is in the interest of the common good that there should be a simple procedure readily available to the police whereby in appropriate cases they may obtain search warrants relating to premises, including the dwellings of citizens, so as to facilitate them in the investigation of larceny and other allied offences. The procedure laid down in Section 42(1) of the 1916 Act contains important elements for the protection of the public, including all those who might be found on the premises to be searched. The investigating police-officer must swear an information that he has reasonable cause for suspecting that stolen property is to be found at the premises to be searched and he must satisfy a Peace Commissioner, who is an independent person unconnected with criminal investigation per se, that it is right and proper to issue the warrant. I am satisfied that such warrants bona fide sought and obtained from a Peace Commissioner pursuant to the procedure laid down in Section 42 of the 1916 Act are not tainted with any constitutional illegality and provide lawful authority for the search of the premises to which they relate.”
29. The above dictum was followed and applied by Hamilton P. in Byrne v. Grey [1988] 1 I.R. 31, who stated, at p. 43, that he agreed with Barr J.
30. It was submitted on behalf of the appellant that s. 29(1) of the Act of 1939 is invalid under the Constitution because it fails to reflect, and provide for, the essential balance between the requirements of the common good and the protection of the appellant’s individual rights.
31. On behalf of the respondents it was submitted that s. 29(1) of the Act of 1939 is not repugnant to the Constitution, but rather is a legitimate part of the State’s armoury to protect itself from offences against the State and against the justice system. In so far as s. 29(1) may provide a person with less protection than a search warrant that is issued by an independent person such as a Judge or a Peace Commissioner, it was submitted that any such diminution in rights is proportionate and lawful.
Presumption of Constitutionality
32. Section 29(1) of the Act of 1939 is entitled to the presumption of constitutionality. As Hanna J. stated in Pigs Marketing Board v. Donnelly [1939] I.R. 413 at 417:-
“When the Court has to consider the constitutionality of a law it must, in the first place, be accepted as an axiom that a law passed by the Oireachtas, the elected representatives of the people, is presumed to be constitutional unless and until the contrary is clearly established.”
Double Construction Rule
33. The double construction rule also applies when construing s. 29(1) of the Act of 1939. Thus, if in respect of s. 29(1) two or more constructions are reasonably open, one of which is constitutional and the other or others are unconstitutional, it would be presumed that the Oireachtas intended only the constitutional construction
Administrative Act
34. The issuing of a search warrant is an administrative act, it is not the administration of justice. Thus a search warrant is not required to be issued by a judge. However, it is an action which must be exercised judicially. As Keane J. (as he then was) stated in Simple Imports v. The Revenue Commissioners 2 I.R. 243 at 251:-
“The District Judge is no doubt performing a purely ministerial act in issuing the warrant. He or she does not purport to adjudicate on any lis in issuing the warrant. He or she would clearly be entitled to rely on material, such as hearsay, which would not be admissible in legal proceedings.”
Strictly construed
35. The legislation permitting the issuance of a search warrant should be constructed strictly. As Keane J. stated in Simple Imports v. The Revenue Commissioners [2000] 2 I.R. 243 at 250:-
“These are powers which the police and other authorities must enjoy in defined circumstances for the protection of society; but since they authorise the forcible invasion of a person’s property, the court must always be concerned to ensure that the conditions imposed by the legislature before such powers can be validly exercised are strictly met.”
Two aspects
36. There are two aspects of the issuance of a search warrant which are important. First, that a search warrant be issued by an independent person. Secondly, that such a person must be satisfied on receiving sworn information, that there are reasonable grounds for a search warrant.
37. In exceptional circumstances, such as urgent situations, provision has been made in statutes for a member of An Garda Síochána to issue a warrant, which usually has a short duration. The requirement of urgency is an important factor in determining the proportionality of legislation which may infringe a constitutionally protected right.
Wide area of search
38. Section 29(1) of the Act of 1939 provides that where a member of An Garda Síochána not below the rank of superintendent is satisfied that there is reasonable ground for believing that evidence of or relating to the commission or intended commission of an offence under the Act of 1939, or the Criminal Law Act, 1976, or a scheduled offence, or evidence relating to the commission or intended commission of treason, is to be found
“in any building or part of a building or in any vehicle, vessel, aircraft or hovercraft or is any place whatsoever,”
he may issue to a member of An Garda Síochána not below the rank of sergeant a search warrant pursuant to this section in relation to such place. Thus, a search warrant issued under this section may be in relation to a number of places, including “any place whatsoever”.
Home
39. The place for which the search warrant was issued in this case, and the place searched, was the home of the appellant. The dwelling is regarded as a place of importance which is protected under the Constitution. Thus, at the core of this case is to be found the principle of the constitutional protection of the home.
The dwelling
40. Article 40.5 of the Constitution of Ireland states:-
“The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.”
Thus, the Constitution protects the inviolability of the dwelling.
41. There has been a long history of protection of the home under common law. In 1604, Sir Edward Coke in Semayne’s Case 77 ER 194, stated:
“That the house of every one is to him as his (a) castle and fortress, as well for his defence against injury and violence, as for his repose”.
The principle was referred to by Sir William Blackstone, in his Commentaries on the Laws of England (1768), where he stated:-
“For every man’s house is looked upon by the law to be his castle of defence and asylum, wherein he should suffer no violence”.
42. In Ireland the dwelling house is protected under the Constitution. The Constitution vindicates and protects fundamental rights. In The People (Attorney General) v. O’Brien [1965] I.R. 142 Walsh J. pointed out that:-
“The vindication and the protection of constitutional rights is a fundamental matter for all courts established under the Constitution. That duty cannot yield place to any other competing interest. In Article 40 of the Constitution, the State has undertaken to defend and vindicate the inviolability of the dwelling of every citizen.”
43. In The People (Attorney General) v. Michael Hogan, (1972) 1 Frewen 360 at 362 Kenny J. stated:-
“Article 40.5 of the Constitution which is in that part of it which has the heading ‘Fundamental Rights’ and the sub-heading ‘Personal Rights’ reads: The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law. The guarantee is not against forcible entry only. The meaning of the Article is that the dwelling of every citizen is inviolable except to the extent that entry is permitted by law which may permit forcible entry.”
44. In The Director of Public Prosecutions v. Dunne [1994] 2 I.R. 537 at p. 540 Carney J. stated:
“The constitutional protection given in Article 40, s. 5 of the Constitution in relation to the inviolability of the dwelling house is one of the most important, clear and unqualified protections given by the Constitution to the citizen”.
The Court would apply these statements, recognising the importance of the inviolability of the dwelling.
“Save in accordance with law”
45. In Ryan v. O’Callaghan (Unreported, High Court, Barr J., 22nd July, 1987)
a search warrant had been issued by a Peace Commissioner and the issue raised was whether the Peace Commissioner in exercising the power granted to him by s. 42 of the Larceny Act, 1916, authorising a search warrant of the dwelling house of a citizen was exercising a judicial power. Barr J. considered the phrase “save in accordance with law” in Article 40.5. He stated that the contemporary view of the Supreme Court was stated by Henchy J. in King v. Attorney General 1981 I.R. 233 at p. 257, when striking down as unconstitutional an offence created by s. 4 of the Vagrancy Act, 1824, for reasons, including:-
“that it violates the guarantee in Article 40.4.1˚ that no citizen shall be deprived of personal liberty save in accordance with law – which means without stooping to methods which ignore the fundamental norms of the legal order postulated by the Constitution …”
46. To pose the question in this case, as posed by Barr J. in the above case, in light of Henchy J.’s definition of ‘save in accordance with law’, does it follow that the procedure for obtaining a search warrant in this case, under s. 29(1) of the Act of 1939, is a method which ignores the fundamental norms of the legal order postulated by the Constitution?
47. The procedure for obtaining a search warrant should adhere to fundamental principles encapsulating an independent decision maker, in a process which may be reviewed. The process should achieve the proportionate balance between the requirements of the common good and the protection of an individual’s rights. To these fundamental principles as to the process there may be exceptions, for example when there is an urgent matter.
48. Analysis and application of such fundamental principles may be illustrated from cases in other jurisdictions.
49. In Camenzind v. Switzerland [1999] 28 EHRR 458 at 476 paragraph 46 it was stated:-
“In the present case the purpose of the search was to seize an unauthorised cordless telephone that Camenzind was suspected of having used contrary to section 42 of the Federal Act of 1922 regulating telegraph and telephone communications. Admittedly, the authorities already had some evidence of the offence as the radio communications surveillance unit of the Head Office of the PTT had recorded the applicant’s conversation and Camenzind had admitted using the telephone. Nevertheless, the Court accepts that the competent authorities were justified in thinking that the seizure of the corpus delicti – and, consequently, the search – were necessary to provide evidence of the relevant offence.
With regard to the safeguards provided by Swiss law, the Court notes that under the Federal Administrative Criminal Law Act of 22 March 1974, as amended, a search may, subject to exceptions, only be effected under a written warrant issued by a limited number of designated senior public servants and carried out by officials specially trained for the purpose; they each have an obligation to stand down if circumstances exist which could affect their impartiality. Searches can only be carried out in ‘dwellings and other premises … if it is likely that a suspect is in hiding there or if objects or valuables liable to seizure or evidence of the commission of an offence are to be found there’; they cannot be conducted on Sundays, public holidays or at night ‘except in important cases or where there is imminent danger’. At the beginning of a search the investigating official must produce evidence of identity and inform the occupier of the premises of the purpose of the search. That person or, if he is absent, a relative or a member of the household must be asked to attend. In principle, there will also be a public officer present to ensure that ‘[the search] does not deviate from its purpose’. A record of the search is drawn up immediately in the presence of the persons who attended; if they so request, they must be provided with a copy of the search warrant and of the record. Furthermore, searches for documents are subject to special restrictions. In addition, suspects are entitled, whatever the circumstances, to representation; anyone affected by an ‘investigative measure’ who has ‘an interest worthy of protection in having the measure … quashed or varied’ may complain to the Indictment Division of the Federal Court. Lastly, a “suspect” who is found to have no case to answer may seek compensation for the losses he has sustained.
As regards the manner in which the search was conducted, the Court notes that it was at Camenzind’s request that it was carried out by a single official. It took place in the applicant’s presence after he had been allowed to consult the file on his case and telephone a lawyer. Admittedly, it lasted almost two hours and covered the entire house, but the investigating official did no more than check the telephones and television sets; he did not search in any furniture, examine any documents or seize anything.”
The European Court of Human Rights held at paragraph 47:-
“Having regard to the safeguards provided by Swiss legislation and especially to the limited scope of the search, the Court accepts that the interference with the applicant’s right to respect for his home can be considered to have been proportionate to the aim pursued and thus ”necessary in a democratic society” within the meaning of Article 8. Consequently, there has not been a violation of that provision.”
50. In Hunter v. Southam Inc. [1984] 2 S.C.R. 145 at 146 to 147 Dickson J. of the Supreme Court of Canada held:-
“First, for the authorization procedure to be meaningful, it is necessary for the person authorizing the search to be able to assess the conflicting interests of the state and the individual in an entirely neutral and impartial manner. This means that while the person considering the prior authorization need not be a judge, he must nevertheless, at a minimum, be capable of acting judicially. Inter alia, he must not be someone charged with investigative or prosecutorial functions under the relevant statutory scheme. The significant investigatory functions bestowed upon the Restrictive Trade Practices Commission and its members by the Act vitiated a member’s ability to act in a judicial capacity in authorizing a s. 10(3) search and seizure and do not accord with the neutrality and detachment necessary to balance the interests involved.
Second, reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search, constitutes the minimum standard consistent with s. 8 of the Charter for authorizing searches and seizures. Subsections 10(1) and 10(3) of the Act do not embody such a requirement. They do not, therefore, measure up to the standard the Charter. The Court will not attempt to save the Act by reading into it the appropriate standards for issuing a warrant. It should not fall to the courts to fill in the details necessary to render legislative lacunae constitutional. In the result, subss. 10(1) and 10(3) of the Combines Investigation Act are inconsistent with the Charter and of no force or effect because they fail to specify an appropriate standard for the issuance of warrants and designate an improper arbiter to issue them.”
This sets an appropriately high standard for a search warrant process.
51. The Court applies the following principles. For the process in obtaining a search warrant to be meaningful, it is necessary for the person authorising the search to be able to assess the conflicting interests of the State and the individual in an impartial manner. Thus, the person should be independent of the issue and act judicially. Also, there should be reasonable grounds established that an offence has been committed and that there may be evidence to be found at the place of the search.
Proportionality
52. The Oireachtas may interfere with the constitutional rights of a person. However, in so doing its actions must be proportionate. The proportionality test, adopted from Canada, was first declared clearly in Ireland by Costello J. in Heaney v. Ireland [1994] 3 I.R. 593 at p. 607:
“The objective of the impugned provision must be of sufficient importance to warrant over-riding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must:
(i) Be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;
(ii) Impair the right as little as possible;
(iii) Be such that their effects on rights are proportionate to the objective …”
53. The Morris Tribunal [Report of the Tribunal of Inquiry set up pursuant to the Tribunal of Inquiry (Evidence) Acts 1921 – 2002 into certain Gardaí in the Donegal Division] (Government Publications 2006) considered the proportionality of s. 29(1). The conclusions and recommendations of chapter 6 ‘The Burnfoot Module’ at paragraphs 623 – 624 stated:-
“The Tribunal is satisfied that it is preferable that the power to issue a warrant should be vested in a judge. With modern technology and rapid communications, there is no reason why a judge cannot be easily contacted by telephone, facsimile or e-mail or personally, for the purpose of making an application to him/her for a search warrant. A record can thereby be created, whether by tape or by the recording of the message received by facsimile or e-mail, or indeed by the prompt furnishing of a grounding information to the judge within a limited period after the application of, say, 24 hours, verifying the basis upon which the application was made, which record can then be filed for future reference. The judge can then make an independent decision.
Such a decision as to whether to grant the warrant would involve a balancing of the interests of An Garda Síochána and the investigation of the criminal offence and the constitutional or legal rights of the person whose premises is to be the subject of the warrant. There are very limited occasions upon which time would be so pressing as to make it impossible to follow such a procedure. In any event, a residual power for such eventuality could, perhaps, still be vested in a senior officer of the Garda Síochána to be used in exceptional circumstances.
The Tribunal, therefore, recommends that urgent consideration be given to vesting the power to issue warrants under section 29 in judges of the District or Circuit court. This, the Tribunal believes to be in keeping with best modern practice in this regard as exemplified in judgments of the European Court of Human Rights and judicial trends in Canada and New Zealand.”
Decision
54. This case is decided on its own circumstances. These circumstances include the fact that the warrant was issued by a member of a Garda Síochána investigating team which was investigating the matters. A member of An Garda Síochána who is part of an investigating team is not independent on matters related to the investigation. In the process of obtaining a search warrant, the person authorising the search is required to be able to assess the conflicting interests of the State and the individual person, such as the appellant. In this case the person authorising the warrant was not independent. In the circumstances of this case a person issuing the search warrant should be independent of the Garda Síochána, to provide effective independence.
55. The circumstances of the appellant’s case also includes the fact that the place for which the search warrant was issued, and which was searched, was the appellant’s dwelling house. The Constitution in Article 40.5 expressly provides that the dwelling is inviolable and shall not be forcibly entered, save in accordance with law, which means without stooping to methods which ignore the fundamental norms of the legal order postulated by the Constitution. Entry into a home is at the core of potential State interference with the inviolability of the dwelling.
56. These two circumstances are at the kernel of the Court’s decision.
57. No issue of urgency arose in this case, and the Court has not considered or addressed situations of urgency.
58. The Court points out that it is best practice to keep a record of the basis upon which a search warrant is granted.
59. This Court would grant a declaration that s. 29(1) of the Offences against the State Act, 1939 (as inserted by s. 5 of the Criminal Law Act, 1976) and referred to as s. 29(1) of the Act of 1939, is repugnant to the Constitution as it permitted a search of the appellant’s home contrary to the Constitution, on foot of a warrant which was not issued by an independent person.