Court of Criminal Appeal dismisses appeal against Circuit Court dismissal of charges due to fatal search warrant errors.

THE COURT OF CRIMINAL APPEAL

Macken, J. [No. CCA 263PX/09]

Budd, J.

O’Keeffe, J.

IN THE MATTER OF SECTION 9 OF THE CRIMINAL JUSTICE ACT, 1999

Between/

THE PEOPLE AT THE SUIT OF THE

DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

-and-

GARETH McCARTHY

Respondent

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 I.R. 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