Court of Criminal Appeal refused to certify two legal questions for Supreme Court appeal due to procedural defaults.

COURT OF CRIMINAL APPEAL

Record No.101/08

Finnegan J.

Hanna J.

McGovern J.

IN THE MATTER OF THE COURTS OF JUSTICE ACT 1924 SECTION 29 AS AMENDED

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

AND

MARTIN MORGAN

APPLICANT

Judgment delivered on the 21st day of December 2011 by Finnegan J.

The applicant was found guilty of the following offences before the Circuit Criminal Court Dublin:-

Count No. 2

Statement of offence

Brothel managing contrary to section 11A of the Criminal Law (Sexual Offences) Act 1993

Particulars of offence

Martin Morgan, between the 23rd day of September 2005 and the 10th day of October 2005, both dates inclusive, within the County

of the City of Dublin, acted or assisted in the management of a brothel.

Count No. 3

Statement of offence

Organising prostitution, contrary to section 9 of the Criminal Law (Sexual Offences) Act 1993.

Particulars of offence

Martin Morgan between the 22nd day of August 2005 and the 10th day of October 2005, both dates, inclusive, within the County of

the City of Dublin, organised prostitution by controlling the activities of more than one prostitute for that purpose.

In the judgment delivered on the 5th day of July 2011 this court dealt with the grounds of appeal insofar as relevant to this

application under two headings, firstly the search warrant and secondly accomplice warning.

It was established in the course of evidence at trial that no notes were taken of the application by the applicants for the several

search warrants in issue on the appeal. No record was kept of oral evidence given or of any questions asked by the District judge or

of the answers given. On behalf of the applicant it was submitted that the failure by the prosecution to make or keep any record of

the applications amounted to a failure to vindicate the fair trial rights of the applicant in that the applicant was thereby hampered in

his ability to test the scrutiny to which the District judge subjected the applications. Central to the applicant’s submissions at trial

and on the application to this court for leave to appeal was the decision of the Queens Bench Division of England and Wales in

Redknapp and Another v Commissioner of Police for City of London & Another [2009] 1 All E.R. 229 which was relied upon in

supplemental written submissions filed on the application to this court for leave to appeal. The submission was that any oral evidence

given on the application for a warrant and of any questions asked by the District judge and the answers thereto should be recorded in

a note. In the course of the judgment in that case Latham L.J. said:-

“All the material necessary to justify the grant of a warrant should be contained in the information provided on the form.

If the Magistrate or judge in the case of an application under section 9 (of the Police and Criminal Evidence Act 1984)

does require any further information in order to satisfy himself that the warrant is justified, a note should be made of the

additional information so that there is a proper record of the full basis upon which the warrant has been granted.”

On the application for leave to appeal it was submitted that as there was no note of any additional evidence given on the application

for the search warrant and of any questions asked by the District judge and the answers given to the same there is a real risk of an

unfair trial in that the applicant was hampered in testing the validity for the warrant.

Redknapp is a decision of the Queens Bench Divisional Court and concerns an application for judicial review to the Administrate Court.

The case is one of a considerable number of similar judicial review applications arising out of alleged non-compliance the provisions of

the Police and Criminal Evidence Act 1984 (PACE). The requirements of PACE have been described as “numerous and onerous” and

“detailed and complex” and in considering Redknapp and the numerous other cases in this series it is important to bear in mind the

statutory scheme against which the cases are set. The challenges involved in the cases range from a challenge to the decision of the

police to seek the warrant to the judge’s decision to issue it. Further in considering the cases it is important to bear in mind that the

role of the court in judicial review proceedings is not that of the trial judge in a criminal trial. In the former the onus is on the

applicant to satisfy the court on the relevant judicial review standard while in the latter the onus is on the prosecution. On judicial

review there will be available to the court detailed affidavits from the officer who applied for the warrant and from the clerk of the

issuing court as well as the sworn information and the warrant itself. For these reasons the decisions of the Queens Bench cannot

readily be transposed into Irish jurisprudence in the context of a criminal trial there will be available. In the context of an Irish criminal

trial there will be available to the defence the sworn information and the warrant. The officer who applied for the warrant will be

available for cross-examination. There is no facility for affidavits. The court has not been referred to any reported case in the England

and Wales where at a criminal trial the proposition posited in the first question which the applicant seeks to have certified pursuant to

section 29 of the 1924 Act has been applied. The question which the applicant seeks to have certified as involving a point of law of

exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court as

follows:-

“Is the failure to keep a note of an application for a search warrant a breach of fair procedures to the extent that the

trial is rendered unfair?”

Many of the administrative court decisions relate to sworn informations completed on a standard form but which were completed in a

manner which did not comply with the detailed requirements of PACE and the remainder largely concerned warrants, again on a

standard form, which did not adequately set out the basis upon which the issuing magistrate or judge was satisfied as required by

PACE that he should issue the warrant. In Redknapp the application form completed by the Detective Constable did not anywhere set

out that he identified to the Magistrate which of the conditions in section 8(3) of PACE was the one upon which he was relying to

justify the warrant. On the authorities that would be sufficient for the warrant to be condemned.

In the course of his judgment Latham L.J. said:-

“Turning then to the grounds upon which it is said that the warrant was unlawfully issued the first thing that has to be

said is that the failures that I have already referred to are wholly unacceptable. The court has complained in the past

about slipshod completion of application forms such as this, the last occasion being the judgment of Underhill J. in R. (on

the application of C.) v Chief Constable of “A” Police [2006] All E.R. (D) 124(SEP). The obtaining of a search warrant is

never to be treated as a formality. It authorises the invasion of a person’s home. All the material necessary to justify the

grant of a warrant should be contained in the information provided on the form. If the Magistrate or judge in the case of

an application under section 9 does require any further information in order to satisfy himself that the warrant is justified,

a note should be made of the additional information so that there is a proper record of the full basis upon which the

warrant has been granted. In the present case the only evidence apart from the information itself is contained in the

witness statement of Det. Con. Driscoll…No where does he say that he identified to the Magistrate which of the

conditions in section 8(3) was the one upon which he was relying to justify the warrant”.

It seems to the court from this passage that had the Detective Constable’s evidence been that he had identified to the Magistrate

which of the conditions in section 8(3) was the one upon which he was relying to justify the warrant that this would have remedied

the defect in the application form.

Later in the judgment Latham L.J. said:-

“I cannot see anything in Det. Con. Driscoll’s statement which clearly identifies the fact that the Magistrate was clearly

told anything which could remedy that defect. I am not prepared to infer from the contents of the statement that the

Magistrate must have been told or that there is enough in the statement to indicate that there was material before the

Magistrate which could have justified him in concluding that at least one of the conditions was met.”

This fortifies the court in the view that it takes that the absence of a note is not fatal if the defect in the application form furnished

to the issuing Magistrate or judge is made good by other evidence in the absence of a note.

In R. (on the application of Wood) v North Haven Magistrates Court [2009] E.W.H.C. 3614(Admin) the form upon which the reasons

for the decision to issue a warrant did not accurately or fully record the reasons. However the court accepted the evidence of the

Detective Constable who applied the warrant and the evidence of Mr Tate the legal adviser to the Magistrates. The matter was again

dealt with before a Divisional Court. In the course of his judgment Lord Moses said:-

“In the instant case I am prepared to accept that the form that purports to give the reasons for the decision did not

accurately or fully record those reasons. Moreover I am not prepared to disbelieve the evidence of D.C. Nicholas as to the

procedure he adopted before the Magistrate or the evidence of Mr Tate (the legal adviser) that the Magistrate did indeed

satisfy himself of the requirements of section 8. I merely record my dissatisfaction with the process and emphasise yet

again that the freedom from interference which the premises can only be properly safeguarded if the reasons for being

satisfied of the statutory criteria are recorded at the time. In those circumstances and with that caution I do not accept

the first ground of challenge.”

The preceding passage follows on from passages approving of the decision in Redknapp. For this reason it seems quite clear to this

court that the failure to record at the time evidence given and questions asked and answered is not fatal to a warrant. When in

Redknapp and other cases it is stated that evidence, questions and answers should be recorded at the time it means just that: for

the validity of the warrant they should be recorded but not that they must be recorded.

Having regard to the circumstance that the decision in Redknapp relied upon by the applicant arises in judicial review proceedings

rather than in the course of a criminal trial and having regard to the extremely complex requirements of PACE which apply in that

jurisdiction the court is not satisfied that the question posed meets the criteria set down by section 29 of the Act of 1924 as

amended.

On this application the applicant seeks to have a second question certified as follows:-

“Is an accomplice warning rendered redundant in circumstances where there is a finding that the co-operating witness

could not have been tried with the same offences?.”

At the hearing of the application for leave to appeal the applicant’s submissions did not at all deal with this ground and neither did

those of the respondent. In oral submissions counsel for the applicant submitted that an accomplice warning was appropriate in

circumstances wider than those envisaged by the learned trial judge and should be given where the witness was involved in the

offence although not an accomplice strictu sensu. and that such a warning was appropriate in this case: as the warning was not

given the conviction should be set aside. For the respondent it was submitted that the witness in question, Miss Rogan, was not an

accomplice as she could not be convicted of any of the offences with which the applicant was charged.

In Davies v D.P.P. [1954] A.C. 378 an accomplice was defined as a person who has participes criminis in respect of the offence

charged, whether as a principle or accessory before or after the fact in a felony or a person committing, procuring or aiding and

abetting in a misdemeanour. The applicant relies on comment in Evidence, Declan McGrath, advocating a broader more purposive

approach focussing on the degree of participation of the witness in the events grounding the offence charged and his or her motives

to lie rather than on the technical character of that participation. McGrath suggests that the decisions in People (A.G.) v Carney

[1955] I.R. 324 and A.G. v Linehan [1929] I.R. 19 leave the door open for a such a development in Irish law.

It is unsatisfactory that the written submissions of the applicant on the application for leave to appeal before this court did not at all

deal with this submission. Neither was the submission clearly flagged in the statement of grounds. Counsel for the respondent on the

application was left in the unenviable position of having to deal with the oral submission without forewarning. The court itself was at a

disadvantage having prepared for the hearing on the basis of the submissions filed. There were fifteen substantive grounds of appeal.

The court in order to deal with the same had considered the submissions and the transcript but had not, nor could it be expected to,

prepare itself for this submission. The issue raised is one of substance. However by reason of the circumstances hereinbefore

mentioned it was not fully argued on the application for leave. This court did not have the benefit of counsel for the respondent’s

detailed and considered response to the submissions. The court would not, save in the most exceptional circumstances, certify a

question of law which was not argued at the application for leave to appeal. In the present case the point was not fully argued due

to the default of the applicant and the court considers that it would in these circumstances be inappropriate to certify the question.

In summary then the court refuses to certify either of the questions raised as questions of law appropriate to be appealed to the

Supreme Court pursuant to section 29 of the Act of 1924 as amended.