High Court quashes warrantless entry by Garda due to insufficient particularity in anonymous tip regarding animal cruelty.

Neutral Citation Number: [2010] IEHC 2

THE HIGH COURT

2009 1643 SS

IN THE MATTER OF SECTION 52(1) OF THE COURTS

(SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

(AT THE SUIT OF GARDA BARRY O’MAHONY)

PROSECUTOR

AND

PHILIP O’DRISCOLL

ACCUSED

JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 14th day of January, 2010

1. This consultative case-stated of Judge David McHugh, a Judge of the District Court, assigned to the Dublin

Metropolitan District, arises out of complaints originally set out in nineteen summonses and then consolidated in one

summons, that on 17th November, 2008, at The Piggery, Megan’s Lane, Mount Seskin, Tallaght, Dublin 24, the accused

did cruelly ill-treat an animal, to wit, failure to take appropriate care of nineteen dogs, contrary to s. 1 of the Protection

of Animals Act, 1911, as amended by the Protection of Animals Act, 1965 and s. 48 of the Control of Horses Act, 1996.

2. Arising out of two distinct submissions made by the solicitor for the accused at the conclusion of the prosecution case,

the learned District Judge, whilst rejecting each of the submissions made on behalf of the accused, agreed to state the

following two questions to the High Court:-

(i) Do the circumstances set forth above give rise to a reasonable cause to suspect, on the part of a member of an

Garda Síochána, that an offence was being or had been committed under the Control of Horses Act 1996 such that

pursuant to section 34(1) of the Control of Horses Act 1996 a member of an Garda Síochána was entitled, without

warrant to enter onto the Piggery and adjacent lands?

(ii) Is the wording of the alleged offence i.e. ill-treat to wit “failure to take appropriate care” of a dog, sufficiently

precise such that the Defendant is aware with appropriate precision of the offence alleged against him?

3. At the hearing before me, the solicitor for the accused indicated that he was no longer pursuing the second objection

before the District Judge and it was agreed that, in such circumstances, it was unnecessary for me to consider the

second question stated by the District Judge. This judgment is concerned with the first question alone.

4. It was also agreed, in accordance with the decision of Laffoy J. in National Authority for Occupational Safety and

Health v. O’K. Tools Hire and Sales Limited [1997] 1 I.R. 534, that this Court has jurisdiction to reformulate the question

for the purpose of more precisely targeting the issue on which the District Judge requires guidance. It was agreed

between the parties that a small reformulation was appropriate, having regard to the terms of s. 34(1) of the Control of

Horses Act, 1996. The Learned District Judge is seeking to ascertain whether, on the evidence adduced and accepted by

him, it was open to him to find that a member of An Garda Síochána had a reasonable cause to suspect that an offence

was being, or had been committed, under the Control of Horses Act, 1996, or that a person was causing harm to or

mistreating a horse on a premises such that pursuant to s. 34(1) of the Control of Horses Act, 1996, a member of An

Garda Síochána was entitled, without warrant, to enter onto The Piggery and adjacent lands.

5. The learned District Judge, in the case-stated, set out the evidence proved or admitted before him to his satisfaction

and his findings of fact, insofar as relevant to the first question in the case-stated, in the following terms:

“2.3 Two members of An Garda Síochána, Garda Barry O’Mahony and Garda Brian O’Connor gave evidence in this

matter. The first witness to give evidence was Garda Barry O’Mahony of Tallaght Garda Station. Garda O’Mahony

stated that on 17th of November Inspector Robert Kenny of the Dublin Society for the Prevention of Cruelty to

Animals (“hereafter “DSPCA”) arrived at Tallaght Garda station at approximately 2.15 pm and spoke to him regarding

an anonymous phone call they had received in relation to cruelty to horses at “The Piggery” on Megan Lane, Mount

Seskin, Tallaght. Garda O’Mahony stated that he and Garda O’Connor accompanied Inspector Robert Kenny and

Inspector Tony McGovern to Megan Lane. When he was asked why he did this, he said he went there because he

believed there were horses being ill-treated. Garda O’Mahony stated that he and Garda O’Connor entered the land

along with DSPCA Inspectors Kenny and McGovern under section 34 of the Control of Horses Act 1996.

...

2.4 Garda Brian O’Connor of Tallaght Garda Station gave evidence that he was told by Garda O’Mahony that he had

had a conversation with DSPCA Inspector Kenny and that there was a report of cruelty to animals at the Piggery,

Megan Lane, Tallaght, Dublin 24. Garda O’Connor stated that Inspector Kenny told him that the anonymous

telephone caller had told a Ms. Lorna Swift, a telephone operator with the DSPCA, that a horse was being stabled

within a building at the piggery. He attended at Megan Lane with Garda O’Mahony, Inspector Kenny and Inspector

McGovern under the power of entry under the Control of Horses Act 1996. …. Under cross-examination, Garda

O’Connor stated that a DSPCA official cut the lock on the gate to gain entry to the premises.

2.5 Mr Robert Kenny, a former DSPCA inspector gave evidence that he was a DSPCA inspector for 19 years, and

that they would get reports of the nature such as the one the subject of this prosecution between 40 and 60 times

a year. He said that they rely on the public to convey information about the care of animals in the area, and most

times the people making these reports to the DSPCA will not leave names. He said that on 17th November 2008, he

responded to an anonymous call in relation to animal cruelty at the Piggery, Megan Lane, Tallaght at approximately

2pm. He called at Tallaght Garda Station and passed on to Garda O’Mahony the information he had received from Ms

Lorna Swift, the telephone operator at the DSPCA. Mr Kenny stated that he and Inspector McGovern then

accompanied Garda O’Mahony and Garda O’Connor to the Piggery in Megan Lane. He saw a horse in the field, and

noted that it was not in a bad way, but the information he received concerned a horse that was housed in the

Piggery. He stated that he entered the property by climbing over a gate. …. He was also cross-examined as to the

information he received from Ms. Swift. Mr. Kenny said he thought that Ms. Swift would have taken a note of her

conversation with the anonymous telephone caller. Mr. Dore [solicitor for the accused] requested that this note be

produced by the prosecution; however, it was not.

….

2.9 Inspector Tony McGovern stated he has been an inspector for 5 years. He said that on 17th of November 2008

Mr Kenny and himself responded to a call in relation to cruelty to horses at the Piggery, Megan Lane, Tallaght. He

said that Robert Kenny told him that the anonymous telephone caller had said to Ms. Swift that a dog was chasing

a horse. They spoke to Gardaí O’Mahony and O’Connor and then proceeded to the Piggery. He gave evidence that

they entered the property by climbing over a gate and entering a building….

2.10 Mr. James Cahill gave evidence that he is the General Manager of the DSPCA. He said that the organisation

would receive approximately 11,000 telephone calls per annum. He said that some of the telephone calls would be

arguments between neighbours and would not require an inspector to call out. He said that on receipt a telephone

call an inspector from the DSPCA would be sent out to check the position. He said that at 4pm on 17th of November

he was contacted by Inspector McGovern and asked to bring a rescue ambulance and a horse box to the Piggery, in

order to transport the animals. ….”

6. At the end of the prosecution case in the District Court, Mr. Dore, solicitor for the accused, submitted that the gardaí

did not have a reasonable cause to suspect that an offence was being committed under the Act of 1996. It appears from

the case-stated, that the primary basis of the objection was the failure to call Ms. Swift to give evidence and the

absence of any evidence as to any enquiry that Ms. Swift may have made of the anonymous telephone caller to establish

the basis on which that person said that an offence was being committed under the Act of 1996. At the hearing before

the High Court, two submissions were made by Mr. Dore, on behalf of the accused, and no objection was taken on behalf

of the prosecutor to both being pursued.

7. Section 34 of the Control of Horses Act. 1996 provides:

“(1) Where an authorised person or a member of the Garda Síochána has reasonable cause to suspect that—

(a) an offence is being or has been committed under this Act in or on any premises or in any vehicle, or

(b) a person is causing harm to or mistreating a horse on any premises or in any vehicle,

such person or member may, subject to subsection (2), stop any such vehicle or enter (if necessary by the use of

reasonable force) any such premises or any such vehicle, and there, or at any other place, and with such

authorised persons and members of the Garda Síochána (if any) as the person or member considers appropriate—

(i) search for any horse,

(ii) search for and examine any document and take extracts from and copies of any such document, and

(iii) exercise, in the case of an authorised person any of the functions conferred on an authorised

person, or in the case of a member of the Garda Síochána any of the functions conferred on a member

of the Garda Síochána, under this Act.

(2) In the exercise of a power of entry by an authorised person or a member of the Garda Síochána into any

premises under this Act, such other persons as may be necessary for the purpose of assisting the authorised person

or member in the exercise of his or her functions under this section may be brought into such premises and the

authorised person, member or any such other person may take with them into the premises such equipment as they

consider to be necessary.

(3) An authorised person or a member of the Garda Síochána shall not, other than with the consent of the occupier,

enter a dwelling unless the person or member has obtained a search warrant from the District Court under section

35 authorising such entry.

(4) Where an authorised person or a member of the Garda Síochána in the exercise of his or her powers under this

section is prevented from entering any premises, an application may be made under section 35 for a search warrant

authorising such entry.”

8. Section 35 of the Act of 1996, is also relevant to the submissions made on behalf of the accused and provides:

“(1) if a judge of the District Court is satisfied by the information on oath of an authorised person or a member of

the Garda Siochána that there are reasonable grounds for suspecting that -

(a) there is evidence on any premises in relation to an offence under this Act, or

(b) a person is causing harm to or mistreating a horse on any premises,

situated within the district court district to which the judge is for the time being assigned, the judge may issue a

search warrant.

(2) A search warrant issued under this section shall be expressed and operate to authorise a named member of the

Garda Siochána accompanied by such members of the Garda Siochána or authorised persons and with such

equipment as the named member thinks necessary, at any time or times within one month from the date of issue of

the warrant, on production of it if so requested, to enter (if necessary by reasonable force) the premises named in

the warrant and exercise any of the powers conferred on a member of the Garda Siochána under this Act.”

9. It is common case that the two DSPCA Inspectors were not authorised persons for the purposes of s. 34 of the Act of

1996, and therefore it was one of the Garda Síochána who entered the premises who was required to have the reasonable

cause to suspect in relation to the matters specified in s. 34(1) of the Act of 1996.

10. The first submission on behalf of the accused was one made in reliance upon the decision of the Court of Criminal

Appeal in D.P.P. v. Byrne [2003] 4 I.R. 423. The submission was that the summary power of entry onto a premises,

conferred on a member of An Garda Siochána by s. 34(1) of the Act of 1996, should only be exercised in circumstances of

urgency where it would not be practicable to apply to a Judge of the District Court for a search warrant under section

35(1).

11. I have concluded that this submission is not well founded. In D.P.P. v. Byrne, at issue were the powers conferred by

s. 8 of the Criminal Justice (Drug Trafficking) Act, 1996 which, in part, provides as follows:-

“(2) A member of the Garda Síochána not below the rank of superintendent shall not issue a search warrant under

the said section [26] unless he or she is satisfied-

(a) that the warrant is necessary for the proper investigation of a drug trafficking offence, 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 or a Peace Commissioner under

the said section 26 for the issue of the warrant.”

In that case, the gardaí were conducting a surveillance operation in relation to a potential delivery of drugs to a house in

Galway. A member of An Garda Síochána telephoned a Chief Superintendent and asked him to be available to hear an

urgent application for a warrant. When he arrived, he was asked to issue a warrant and did so on the evidence without

any enquiry whatever as to the availability of a District Judge or a Peace Commissioner or as to whether any steps had

earlier been taken to ensure the availability of a District Judge or a Peace Commissioner. For reasons not relevant to this

case-stated, the Court of Criminal Appeal affirmed the conviction pursuant to the power contained in s. 3(1)(a) of the

Criminal Procedure Act, 1993 and, for that reason, make clear that it was not necessary to reach a final conclusion on the

legality of the procedures relating to the warrant, but stated, in the judgment delivered by Hardiman J., at p. 427:

“But we would say, having regard not merely to the provisions of s. 8(2) of the Criminal Justice (Drug Trafficking)

Act 1996, but also in the constitutional context as exemplified in Byrne v. Grey [1988] I.R. 31, that it is not the

case that An Garda Síochána are free to choose whether they will apply for a warrant to a judge, to a peace

commissioner or to a superintendent. They must apply to a judge or a peace commissioner unless the very limited

circumstances which permit them to apply to a superintendent are present. These circumstances must be

demonstrated to be present for the superintendent’s warrant to be valid.” [Emphasis in the original].

12. The statutory power conferred by s. 34(1) of the Control of Horses Act, 1996 is quite different to that contained in s.

8(2) of the Criminal Justice (Drug Trafficking) Act, 1996. There is no provision in s. 34(1) analogous to s. 8(2)(b) which

was in part the basis for the judgment of the Court of Criminal Appeal. Further, insofar as the decision in D.P.P. v. Byrne is

based upon the constitutional context referred to in Byrne v. Grey [1988] I.R. 31, which relates to the constitutional

importance of proper procedures in the matter of searches, in particular of private dwellings, it is important to note that

s. 34(3) of the Control of Horses Act, 1996 expressly precludes entry on a dwelling, except with the consent of the

occupier, unless a search warrant is obtained from the District Court under section 35. The power being exercised by An

Garda Síochána in the instant case is not one which could be exercised in relation to a dwelling. I am satisfied, on a

proper construction of ss. 34 and 35 of the Control of Horses Act, 1996, that the power conferred on an authorised

officer or a member of An Garda Síochána by s. 34(1) is intended to be available where the pre-conditions set out in s.

34(1) are met, and is not one which is intended only to be exercised where there is an element of urgency and a warrant

cannot be obtained from the District Court pursuant to section 35.

13. The second submission made on behalf of the accused was broadly similar to that made to the District Judge. Mr.

Dore submitted that the gardaí did not have a reasonable cause to suspect that an offence was being committed under

the Act of 1996. He accepted, in submission, that the reasonable suspicion could be either that an offence was being

committed under the Act, or that a person was causing harm or mistreating a horse on any premises. Mr. Dore submitted

that the test which is required to establish a reasonable suspicion is at least what a District Judge would consider

reasonable if a warrant had to be applied for to exercise the power of entry. He relied upon what is stated by Professor

Walsh in his work, Criminal Procedure (Thomson Roundhall, 2002) at p. 407, where he considers what constitutes

reasonable grounds for the purpose of applying for a warrant, and states:

“Typically, the warrant can be granted only if the issuing authority is satisfied that there are reasonable grounds for

the suspicion. Accordingly, it will not be sufficient if the applicant swears that on the basis of information which has

come to his attention, he has reasonable grounds to believe that relevant items are to be found in a specified

place. The applicant must also present evidence to satisfy the issuing authority that his belief is based on

reasonable grounds.”

14. The analogy appears apposite in this sense. Where, as in this case, it is a member of An Garda Síochána who

exercises the power of entry conferred by s. 34(1), then that member of An Garda Síochána must himself have reasonable

cause to suspect either that (a) an offence is being committed, or (b) a person is causing harm to or mistreating a horse

on the relevant premises. He cannot simply rely on a suspicion of some other person, including a DSPCA Inspector. The

garda must make his own determination on the information before him as to whether there are reasonable grounds for a

suspicion.

15. Both parties referred to the consideration given by Clark J. in two recent judgments: D.P.P. v. Farrell [2009] IEHC 368,

and D.P.P. v. Finnegan [2008] IEHC 347, as to what constitutes a reasonable suspicion. In the former, at paras. 20 and

21 of her judgment, Clark J. stated:

“20. What constitutes a reasonable suspicion has been examined by the courts on many occasions. I cannot discern

any difference between the phrase ‘reasonable cause’ to suspect as used in s. 23 and ‘reasonable suspicion’ and am

of the view that the principles are the same. The authorities on reasonable suspicion all share the common thread

that the suspicion must be fair and reasonable and honestly held on the basis of information available to the Garda

at the time. This Court reviewed the authorities on what constitutes reasonable suspicion in D.P.P. v. Jonathan

Finnegan [2008] I.E.H.C. 347 (5th November, 2008) where the issue was whether the reasonableness of an

arresting Garda’s suspicion can be invalidated by subsequently established facts when all the relevant events have

been investigated and the suspicion seems less solidly based. The principle being examined in this particular case is

whether the generally held knowledge of a serious drugs problem in an area can be sufficient to establish reasonable

cause for suspicion that a driver of a car in that area could be detained and his car searched pursuant to s. 23.

21. As guardians of the peace, with a duty not only to investigate crime but also to prevent its occurrence,

members of An Garda Síochána are required on a daily basis to make on the spot decisions based on available

information which may derive from no more than educated impressions. Once the actions of the Gardaí are

reasonable and bona fide and there is no evidence of abuse of power or arbitrary behaviour, the courts should be

very slow to put technical procedural obstacles in the way of the day to day investigation of crime.”

In that case, Clark J. was considering the exercise of a power to search a vehicle under s. 23 of the Misuse of Drugs Act,

1977, where a member of An Garda Síochána “with reasonable cause, suspects that a person is in possession in

contravention of this Act of a controlled drug . .”

17. I was also referred by both parties to the consideration given by Charleton J. in D.P.P. v. Cash [2007] IEHC 108, as to

what may constitute reasonable cause to suspect, for the purposes of a lawful arrest, at paras. 11 and 12 of his

judgment, where he said as follows:

“11. Reasonable cause for arrest equates with the concept of reasonable suspicion. In that regard, a reasonable

suspicion is one founded on some ground which, if subsequently challenged, will show that the person arresting the

suspect acted reasonably in suspecting them. A suspicion communicated by one garda to another can be sufficient

to constitute a reasonable suspicion, provided there is sufficient particularity provided as to why that suspicion

should be held; The People (D.P.P.) v. McCaffrey [1986] I.L.R.M. 687. Information offered by an informer who was

adjudged reliable can be sufficient to ground an arrest; Lister v. Perryman [1870] L.R. 4 H.L. 521, The People

(D.P.P.) v. Reddin and Butler [1995] 3 I.R. 560. …..

12. It has never been held that what would be found a reasonable suspicion in law, requires to be based on the kind

of evidence that would be admissible under the rules of evidence during the hearing of a criminal trial. On the

contrary, a reasonable suspicion can be based on hearsay evidence or can be inferred from discovering that an alibi

which a suspect has given to the police turns out to be false. In Hussein v. Chong Fook Kam [1970] A.C. 942, the

issue of the parameters of what was a reasonable suspicion came up before the Privy Council in the context of the

criminal code of Malaysia. …. The Privy Council explained that reasonable suspicion should not be equated with

prima facie proof, as that concept is understood in the law of evidence. The police force was entitled to act on a

lesser standard of reasonable cause, or reasonable suspicion. Lord Devlin offered the following analysis, which I

would follow:-

‘The test of reasonable suspicion prescribed by the Code is one that has existed in the common law for

many years. …..

Their Lordships have not found any English authority in which reasonable suspicion has been equated with prima

facie proof. In Dumbell v. Roberts [1944] 1 All E.R. 326, Scott L.J. said, at p. 329:

‘The protection of the public is safeguarded by the requirement, alike of the common law and, so far as I know, of all

statutes, that the constable shall before arresting satisfy himself that there do in fact exist reasonable grounds for

suspicion of guilt. That requirement is very limited. The police are not called upon before acting to have anything like a

prima facie case for conviction; …’.”

The judgment of Charleton J. in D.P.P. v. Cash is currently under appeal to the Supreme Court, but neither counsel for the

prosecutor nor solicitor for the accused made any submission contrary to the principles stated in the above extract.

18. Applying the above principles to the facts recorded and accepted by the learned District Judge, there is nothing in

principle to prevent a member of An Garda Síochána forming a reasonable suspicion, either that an offence was being

committed or that a horse was being harmed or mistreated, for the purpose of s. 34(1), upon hearsay information and

even where the source is anonymous. However, the simple receipt of hearsay information is not of itself a sufficient

ground to constitute a reasonable suspicion. As stated by Lord Devlin in the extract cited by Charleton J. from his

decision in Hussein v. Chong Fook Kam [1970] A.C. 942 (and referring to the judgment of Scott L.J. in Dumbell v. Roberts

[1944] 1 All E.R. 326), the Garda should “satisfy himself that there do in fact exist reasonable grounds for suspicion …”,

albeit that this is a “limited requirement”. What a Garda must do to so satisfy himself will depend entirely on the nature of

the information before him. Hearsay information would normally appear to require a garda to consider both the source and

nature of the information. Further these may often be inter-related in inverse proportion. The more credible the source

the less the particularity may be required in the information provided to ground a reasonable suspicion. Where, as in this

instance, the source is anonymous it would seem that there would have to be sufficient particularity in the information

itself to permit a Garda to form the view that, irrespective of its source, it constitutes a reasonable suspicion of one of

the matters specified in s. 34(1) of the Act of 1996.

19. To put it a slightly different way, where a third party complaint is communicated to a member of An Garda Síochána

via a credible person i.e. a DSPCA Inspector, it is not open to a member of An Garda Síochána to exercise the powers

conferred by s. 34(1) simply because the third party complaint is communicated by a DSPCA Inspector who considers the

complaint credible. The garda must be given sufficient particularity of the complaint and its source such that the garda

can make his or her own assessment as to whether the information provided to him or her constitutes reasonable grounds

to suspect that an offence is being committed or a horse is being harmed or mistreated.

20. On the evidence recorded and accepted by the learned District Judge from the two Gardaí set out above , it appears

that Inspector Kenny spoke to Garda O’Mahony “regarding an anonymous phone call they had received in relation to

cruelty to horses at ‘The Piggery’ on Megan Lane, Mount Seskin”. Further that Garda O’Connor was told by Inspector

Kenny that “that the anonymous telephone caller had told a Ms. Lorna Swift, a telephone operator with the DSPCA, that

a horse was being stabled within a building at the piggery”. On the evidence recorded this was the only information before

either Garda. Notwithstanding the low threshold for a reasonable suspicion on the authorities cited above, I have

concluded that, as the source was anonymous, the lack of particularity or facts in the complaint as communicated to the

Gardaí fell short of what may constitute reasonable grounds upon which a Garda could have cause to suspect either that

an offence was being committed or that a horse was being harmed or mistreated at the premises known as The Piggery.

The more specific information was that given to Garda O’Connor. However even it did not include any facts given by the

complainant in support of the assertion that a horse was stabled in the piggery and therefore the allegation was entirely

dependent on the reliability of the source which was anonymous. Accordingly, I have concluded that the first question in

the case-stated as reformulated should be answered as follows:

It was not open to the learned District Judge on the evidence adduced and accepted by him to find that a member

of An Garda Síochána had a reasonable cause to suspect that an offence was being, or had been, committed under

the Control of Horses Act 1996, or that a person was causing harm to or mistreating a horse on a premises such

that pursuant to s. 34(1) of the Control of Horses Act 1996, a member of An Garda Síochána was entitled, without

warrant, to enter onto The Piggery and adjacent lands.