Supreme Court allows appeal finding Garda had reasonable cause to enter without warrant on animal cruelty suspicion.

THE SUPREME COURT

Record No. 23 & 185/10

Denham J.

Finnegan J.

O’Donnell J.

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/APPELLANT

and

PHILIP O’DRISCOLL

ACCUSED/RESPONDENT

Judgment of Mr Justice Finnegan delivered on the 1st day of July 2010

The respondent came before the District Court on nineteen summonses each of which related to a complaint in respect of one of

nineteen dogs of cruelty contrary to the provisions of the Protection of Animals Act 1911 section 1 as amended by section 4 of the

Protection of Animals (Amendment) Act 1965, section 20 of the Control of Dogs Act 1986 and the Control of Horses Act 1996, at The

Piggery, Megan’s Lane, Mount Seskin, Tallaght, Dublin 24. On consent the nineteen summonses were consolidated into a single

summons concerning the nineteen dogs. The matter was heard over two days on the 19th June 2009 and the 20th July 2009. A major

part of the evidence adduced on behalf of the prosecution concerned what was found by Gardai and officers of the Dublin Society for

the Prevention of Cruelty to Animals (“the D.S.P.C.A.”) when the premises at The Piggery were entered on reliance on the power of

entry provided for in the Control of Horses Act 1996 section 34(1). At the conclusion of the prosecution the solicitor for the

respondent, Mr Dore, submitted that the Gardai did not have reasonable cause to suspect that an offence was being, or had been,

committed under the Act and in consequence were not entitled to enter onto the premises. The District Court judge rejected the

submission but, at Mr Dore’s request, stated a case to the High Court pursuant to the Courts (Supplemental Provisions) Act 1961

section 52(1). Two questions were submitted to the High Court for consideration the second of which was not pursued before the

High Court. The first question was reformulated in the High Court as follows:-

“Was it open to the learned District judge on the evidence adduced and accepted by him to find that a member of An

Garda Síochána had 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 the premises 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.”

The learned trial judge answered the question in the negative. From her order and judgment the appellant appeals to this court.

The Statutory Provision

The Control of Horses Act 1996 section 34 provides as follows:-

“34(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 Gardai 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 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.”

Section 35 of the Act of 1996 is relevant to the first submission made on behalf of the respondent in the High Court and to this court.

Section 35 provides as follows:-

“35(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 Síochána 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 Síochána accompanied by such members of the Garda Síochána 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 powers conferred on a member of the Garda Síochána under this Act.”

The Evidence before the District Court

Before the District Court were photographs of what was found upon the premises being entered. The case stated sets out the

relevant evidence before the District Court as follows:-

“2.3 Two member 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

the 17th November Inspector Robert Kenny of the Dublin Society for the Prevention of Cruelty to Animals arrived at

Tallaght Garda Station at approximately 2.15 p.m. and spoke to him regarding an anonymous phone call they had received

in relation to cruelty to horses at The Piggery on Megan’s Lane, Mount Seskin, Tallaght. Garda O’Mahony stated that he

and Garda O’Connor accompanied Inspector Robert Kenny and Inspector Tony McGovern to Megan’s 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 D.S.P.C.A. Inspectors Kenny and McGovern under section

34 of the Control of Horses Act 1996. Garda O’Mahony stated that he entered the outhouse on the left, where there were

housed nineteen dogs, two cats and two pigs. Garda O’Mahony noted that this was at about 3 p.m. and there was little

natural light, little bedding and there were faeces and urine on the floor of all the kennels. There was a strong smell of

urine in the building.

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

conversation with D.S.P.C.A. Inspector Kenny and that there was a report of cruelty to animals at The Piggery, Megan’s

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 D.S.P.C.A., that a horse was being stabled within a building at The

Piggery. He attended at Megan’s Lane with Garda O’Mahony, Inspector Kenny and Inspector McGovern. Under the power

of entry under the Control of Horses Act 1996 Garda O’Connor entered the building housing the nineteen dogs. He gave

evidence that there were a lot of dead rats in the area, that it was dark, damp and very cold. He witnessed members of

the D.S.P.C.A. removing the dogs from the shed. Under cross-examination Garda O’Connor stated that a D.S.P.C.A. official

cut the lock on the gate to gain entry to the premises.

2.5 Mr Robert Kenny a former D.S.P.C.A. Inspector gave evidence that he was a D.S.P.C.A. Inspector for nineteen years,

and that they would get reports of the nature such as the one the subject of this prosecution between forty and sixty

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 people making these reports to the D.S.P.C.A. will not leave their names. He said that on the 17th November 2008

he responded to an anonymous call in relation to animal cruelty at The Piggery, Megan’s Lane, Tallaght. At approximately

2 p.m. 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 D.S.P.C.A. Mr Kenny stated that he and Inspector McGovern then

accompanied Garda O’Mahony and Garda O’Connor to The Piggery in Megan’s 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 stated that they entered the first building (building A)

which contained approximately eight dogs. These are not the dogs the subject matter of the prosecution. These dogs

were removed and this took approximately thirty to forty minutes. He said that they then entered the second building

(building B), which had approximately nineteen dogs. He said that the conditions of this building were very bad; it was

very dark and damp. He said that there was diarrhoea walked into the ground in some of the kennels, and he referred to

photograph 20 to show this to the court. He said that the dogs had no access to food, however this did not concern him

as he wouldn’t expect there to be food in their bowls. There was, however, no access to water and the troughs were

empty in the kennels. He said the kennels were very dirty. He said that the dogs had nowhere dry to lie down. He saw

some dogs with facial wounds. He was cross-examined as to whether he was relying on the photographs to support his

view that the dogs were being ill-treated. He said he was, but he was also relying on the fact that he was there and saw

this for himself. 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 requested that

this note be produced by the prosecution, however, it was not.”

Two Veterinary Surgeons gave evidence as to the condition of the dogs.

“2.9 Inspector Tony McGovern stated that he had been an inspector for five years. He said that on the 17th November

2008 Mr Kenny and himself responded to a call in relation to cruelty to horses at The Piggery, Megan’s 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 Gardai 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 the building (building A). The dogs were removed from this

building, and they subsequently entered building B and found nineteen dogs in kennels. He said that there were no locks

on the buildings. He said that the kennels were heavily soiled with a strong smell of urine, no bedding and no water. He

said there seemed to be a system where the troughs could be connected to a pipe so that they could be refilled

automatically when they became empty, however this was not working as the troughs were not connected and so there

was no water in the bowls. He stated that ventilation was very poor in the building and the windows were boarded up.

He said that this was one of the worse premises he had seen that was used for housing animals.

2.10 Mr James Cahill gave evidence that he is the general manager of the Dublin Society for the Prevention of Cruelty to

Animals. He said that the organisation would receive approximately eleven thousand 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 of a telephone call an inspector from the Dublin Society of Prevention of Cruelty to Animals would

be sent out to check the position. He said that at 4 p.m. on the 17th November he was contacted by Inspector

McGovern and asked to bring a rescue ambulance and horse box to The Piggery, in order to transport the animals. When

he arrived at The Piggery, he entered building B. He stated that in his experience this was one of the worse premises he

had ever seen. He said he saw many dead rats in a wheelbarrow, and that there were approximately twenty to thirty

live ones in the area. He said that the conditions were wet and damp and that there was very poor lighting inside the

building. Mr Cahill said that the animals were filthy, were infested with fleas and mange. He was asked by Mr Dore

whether he noticed whether there were windows in the building. Mr Cahill said there were holes in the wall covered by

vegetation. He was also asked by Mr Dore if he noticed that there were skylights in the building. Mr Cahill said these

were covered by vegetation.”

Ms Lorna Swift who received the anonymous telephone call to the D.S.P.C.A. was not called to give evidence.

Judgment of the High Court

The issue before the learned High Court judge was whether, having regard to the evidence, it was open to the District judge to find

that a member of the Garda Síochána had 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 premises such that pursuant to section

34(1) of the Control of Horses Act 1996 that member was entitled, without warrant, to enter onto The Piggery and adjacent lands.

It is common case that the officers of the D.S.P.C.A. were not authorised persons for the purposes of section 34 of the Act of 1996

and accordingly it is one of the Garda Síochána who entered the premises who must have had the reasonable cause to suspect

required by section 34(1) of the Act of 1996.

The first submission on behalf of the respondent placed reliance on the decision of the Court of Criminal Appeal in D.P.P. v Byrne

[2003] 4 I.R. 423 which concerned the issue of a search warrant under the Criminal Justice (Drug Trafficking) Act 1996. Section 26(2)

of the Act provides for the issue of a search warrant by a District Court judge or a Peace Commissioner while section 8(2) of the Act

provides for the issue of a search warrant by a member of the Garda Síochána not below the rank of Superintendent, if he or she is

satisfied 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 District Court judge or a Peace Commissioner for the issue of the warrant. The warrant in question was

issued by a Chief Superintendent without, on the evidence, any enquiry whatever as to the availability of a District Court 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. In the course of the judgment of the court Hardiman J. said:-

“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 Gray [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. It seems to us that counsel for the prosecutor may well be correct when he

says that the warrant was actually issued by the chief superintendent’s signature at some time as near as makes no

difference to 12.50 p.m. on the 20th February 2001. It may indeed have been impractical to get a district judge and a

peace commissioner at that moment but, as to whether that justification can prevail when there has been a long period

of surveillance and when an urgent call was made to the chief superintendent to get him to attend and no call was made

to any other person entitled to issue a warrant, we need say no more other than that a grave legal issue arises.”

In the circumstances of that case it was unnecessary to reach a final conclusion on the legality of the procedures adopted. The

learned High Court judge in the present case concluded that the respondent’s solicitor’s submission was not well founded having

regard to the difference in wording between the Criminal Justice (Drug Trafficking) Act 1996 section 8(2) and the Control of Horses

Act 1996 section 34. She held that on the proper construction of section 34 the power of entry thereby conferred is intended to be

available once the pre-conditions set out in section 34(1) are met.

The second submission to the learned High Court judge was that on the evidence a member of the Garda Síochána did not have

reasonable cause to suspect as required by section 34(1) of the Act of 1996.

The learned trial judge carefully considered the authorities cited to her and in particular D.P.P. v Farrell [2009] I.E.H.C. 368, D.P.P. v

Finnegan [2008] I.E.H.C. 347 and D.P.P. v Cash [2007] I.E.H.C. 108. She concluded as follows:-

“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 section 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 Chon 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 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 interrelated in inverse proportion. The more credible the

source the less 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 section 34(1) of the Act of 1996.

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 D.S.P.C.A. Inspector, it is not open to a member of An Garda Síochána to exercise the powers

conferred by section 34(1) simply because the third party complaint is communicated by a D.S.P.C.A. Inspector who

considers the complaint credible. The Garda must be given sufficient particularity of the complaint and its source such

as 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 has been committed or a horse has been harmed or mistreated.”

The learned trial judge then applied the law to the facts as follows:-

“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 Gardai 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

dependant on the reliability of the source which was anonymous.”

Accordingly the learned trial judge answered the reformulated question in the negative.

Notices of Appeal and Cross-Appeal

The appellant’s grounds of appeal as argued in this court may be summarised as follows. The learned High Court judge erred in law and

in fact or on a mixed question of law and fact:-

1. In finding that it was not open to the District judge on the evidence to find that both Garda O’Mahony and Garda

O’Connor or either of them had reasonable cause to suspect the commission of an offence under the Control of Horses

Act 1996.

2. In finding that there was insufficient information regarding the complaint both as to the source and the particulars of

the same to enable the Garda Síochána to have reasonable cause to suspect the commission of an offence under the

Control of Horses Act 1996.

3. In finding that “the allegation was entirely reliant on the reliability of the source which was anonymous”.

The respondent’s cross-appeal raises two grounds which may be summarised as follows. The learned trial judge erred in law or in fact

or on a mixed question of law and fact:

1. In finding that the statutory power conferred by section 34(1) of the Control of Horses act 1996 was not a power

which was intended to be used or exercised only in circumstances where an element of urgency existed such as would

negate the practicality of obtaining a warrant pursuant to section 35 of the Control of Horses Act 1996 from a District

Court judge.

2. In finding that the power conferred under section 34(1) of the Control of Horses Act 1996 is a power which cannot be

exercised in relation to a dwelling.

Discussion and Conclusion

It is convenient to deal first with the cross-appeal. The respondent’s first submission to the High Court, in short, was that the Control

of Horses Act 1996 sections 34 and 35 should be construed together in the like manner as the Criminal Justice (Drug Trafficking) Act

1996 section 82 and the Misuse of Drugs Act 1977 section 26 were construed in Director of Public Prosecutions v Byrne [2003] 4 I.R.

423.

The Misuse of Drugs Act 1977 section 26 provides as follows:-

“26(1) If a Justice of the District Court or a Peace Commissioner is satisfied by information on oath of a member of the

Garda Siochána 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.”

The Criminal Justice (Drug Trafficking) Act 1996 section 8(2) provides as follows:-

“8(2) A member of the Gárda 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 Director of Public Prosecutions v Byrne the Gárda Siochána without making any enquiries or attempt to locate a District Court

judge or a Peace Commissioner for the purposes of obtaining a warrant under the Misuse of Drugs Act 1977 section 26 obtained a

warrant under the Criminal Justice (Drug Trafficking) Act 1996 section 82 from a Chief Superintendent. The Court of Criminal Appeal in

its judgment expressed the view, although it was unnecessary so to find, that section 8(2) of the 1996 Act could only be availed of if

the very limited circumstances which permit such application are present.

As the Misuse of Drugs Act 1977 and the Criminal Justice (Drug Trafficking) Act 1996 are in pari materia they should be construed

together. However section 34 of the Control of Horses Act 1996 does not contain the limitation as to circumstances of urgency

contained in the Criminal Justice (Drug Trafficking) Act 1996 section 82. I can see no basis upon which such a limitation should be

read into section 34. This is particularly so as section 34 does not empower entry into a dwelling and so does not impinge on the

constitutional protection given to a dwelling. Where it is intended to carry out a search of a dwelling a warrant must be obtained

under section 35 of the Act of 1996. For these reasons I would dismiss the cross-appeal on this ground.

As to the second ground in the cross-appeal it is only necessary to refer to the express terms of section 34(3) of the Control of

Horses Act 1996 which expressly provides that the Gárda Siochána shall not, other than with the consent of the occupier, enter a

dwelling unless a search warrant from the District Court under section 35 of the Act is obtained authorising such entry. I would

dismiss the cross-appeal on this ground also.

The issues on the appeal which I have summarised, in essence, are aspects of a single issue which can be further summarised thus:-

On the evidence before the District Court was it open to the District Court judge to find that the Garda Síochána had the

requisite reasonable cause to suspect for the purposes of section 34 of the Control of Horses Act 1946.

The written submissions filed on behalf of the appellant summarise the relevant case law as follows:-

“1. The reasonable cause to suspect must be fair and reasonable and honestly held on the basis of information available

to a member of An Garda Síochána at the relevant time.

2. The reasonable cause to suspect must be referable to facts or information which would satisfy an objective observer:

it is an objective test.

3. The objective test requires that the basis for the reasonable cause to suspect be examined by reference to the time

and the circumstances in which the power was exercised.

4. The facts or information grounding the reasonable cause to suspect may be either what the member of the Garda

Síochána has observed or information that he has received. The information acted on by the member need not be based

on his own observations since he is entitled to have a reasonable cause to suspect based on what he is told.

5. The reasonable cause to suspect may be based on information from any source including an anonymous source. Since

it is only the information that is in the mind of the member of An Garda Síochána that is relevant it is unnecessary to

investigate what was known to an informant or whether the information is true. If the information grounding the

reasonable cause to suspect turns out to be ill-founded the lawfulness of the entry will not be impugned. What is

relevant is the information available to the member of the Garda Síochána at the relevant time.

6. Material grounding a reasonable cause to suspect need not satisfy the same threshold as is required to lay a charge

nor is it necessary that it constituted admissible evidence.”

In the course of the hearing counsel for the respondent did not dispute the correctness of these propositions and I am indeed

satisfied that they are correct.

In Director of Public Prosecutions v Reddan [1995] 3 I.R. 560 an issue arose as to whether a member in charge in a Garda Station had

reasonable grounds to detain a person. The member in charge had been told by a Garda that he had been told by a Garda Sergeant

who had arrested the person that he had confidential information that she had been involved in the offence. The Court of Criminal

Appeal was satisfied that the information so received was sufficient to constitute reasonable grounds for the detention. Accordingly

hearsay (and in this case hearsay upon hearsay) of the existence in a person of a belief the grounds for which were not disclosed

may be sufficient to establish reasonable grounds.

Director of Public Prosecutions v Finnegan [2009] 1 I.R. 49 concerned an arrest under section 49(8) of the Road Traffic Act 1961 as

inserted by section 10 of the Road Traffic Act 1994 which provides:-

“A member of An Garda Síochána may arrest without warrant a person who in the members’ opinion is committing or

has committed an offence under this section.”

In the High Court Clarke J. held that for an arrest under the section to be lawful it was necessary that the opinion be genuinely and

reasonably held at the time, must result from an honest belief and that it is not relevant that the opinion subsequently transpires not

to be factually accurate. Thus the relevant time is the time when the statutory power is exercised and it is immaterial if the basis for

exercising that power subsequently transpires to have been correct or incorrect and mistaken. See also Director of Public

Prosecutions .v. Penny [2006] 3 I.R. 553.

The circumstances in Director of Public Prosecutions v Farrell [2009] I.E.H.C. 368 were as follows. The accused was arrested under

section 23 of the Misuse of Drugs Act 1977 as amended which provides that a member of the Garda Síochána who had reasonable

cause suspects that a person is in possession in contravention of the Act of a controlled drug may without a warrant conduct a

search of that person and any vehicle in which he suspects that such drug may be found. The accused’s car was stopped by a Garda

who was on patrol duty in a marked patrol car and engaged in general observation of activity in an area where to his knowledge there

was a drugs problem. His reason for stopping the accused’s car was the general suspicion which he held of a drugs problem in the

area. He gave no evidence of any suspicion related to the accused in relation to a drugs offence. All he knew was that the car was

driven by a man with a male passenger in an area with a drugs problem. In the course of her judgment Clarke J. said:-

“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 they

derive from no more than educated impressions. Once the actions of the Gardai are reasonable and bona fide and there

is no evidence of abuse of power or arbitrary behaviour the court should be very slow to put technical procedural

obstacles in the way of the day-to-day investigation of crime.”

The learned trial judge went on to find that there was no evidence that the Garda in question was acting mala fides or that his

behaviour was capricious or an abuse of his powers. However the terms of the Act required that he have reasonable cause for

suspecting that the accused was in possession of a controlled drug and no such reasonable cause existed.

Reasonable cause does not require evidence which would be admissible in court nor does it require anything in the nature of prima

facie proof. The threshold is much lower than that. In Director of Public Prosecutions v Cash [2007] I.E.H.C. 108 Charleton J. was

concerned with reasonable cause for arrest which he held equated with the concept of reasonable suspicion. In the course of his

judgment he said:-

“It has never been held that what would 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. A car was

travelling home one night with five people in it when, on passing a lorry, a log fell from that vehicle onto the car. One

passenger was killed and another was injured. The lorry did not stop. A registration number had been obtained which

resulted in the arrest of the driver and passenger of the lorry. On questioning they denied that they had passed the

place where the accident had occurred. 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. The law is thus stated in Bullen and Leek, 3rd edition, 1868 p. 795, the ‘golden’ edition’ of 1868:

‘A constable is justified in arresting a person without a warrant upon a reasonable suspicion of a felony

having been committed and of the person being guilty of it.’

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

proof. In Dunbell 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; …There is another distinction between reasonable suspicion and

prima facie proof. Prima facie proof consists of admissible evidence. Suspicion can take into account matters that

could not be put in evidence at all.’”

On appeal to the Supreme Court at [2010] I.E.S.C. 1 it was held that the expression “with reasonable cause” equates to reasonable

suspicion, and that it has never been held that “what would 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.”

In O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] A.C. 286 the plaintiff was summarily arrested at his home by a

detective constable under the Prevention of Terrorism (Temporary Provisions) Act 1984. Apart from information received at a briefing

earlier that morning, during which he was told that the plaintiff had been involved in a murder and that he was to arrest him, the

Constable had no basis for suspecting that the plaintiff had been involved in the commission of acts of terrorism. The court had no

further information or details of what the Detective Constable had been told at the briefing. The House of Lords held that the test to

determine whether reasonable grounds for suspicion existed to justify the arrest was partly subjective, in that the arresting officer

must have formed a genuine suspicion that the person being arrested had been concerned in acts of terrorism, and partly objective in

that there had to be reasonable grounds for forming such a suspicion: such grounds did not have to be based on the officer’s own

observations but could arise from information he had received: even if it was subsequently shown to be false, provided that a

reasonable man, having regard to all the surrounding circumstances would regard them as reasonable grounds for suspicion. The mere

order by a superior officer to arrest would be insufficient to afford reasonable grounds for suspicion. It was held that although the

evidence was sparse the judge and the Court of Appeal had applied the correct test and, in the circumstances, had been entitled to

infer the existence of reasonable grounds for suspicion. The fact of the briefing by a superior officer was sufficient to ground a

reasonable suspicion. In the course of his opinion at p. 298 Lord Hope of Craighead said:-

“This means that the point does not depend on whether the arresting officer himself thought at the time that they were

reasonable. The question is whether a reasonable man would be of that opinion, having regard to the information which

was in the mind of the arresting officer. It is the arresting officer’s own account of the information which he had which

matters, not what was observed by or known to anyone else. The information acted on by the arresting officer need not

be based on his own observations, as he is entitled to form a suspicion based on what he has been told. His reasonable

suspicion may be based on information which has been given to him anonymously or it may be based on information,

perhaps in the course of an emergency, which turns out later to be wrong. As it is the information which is in his mind

alone which is relevant however, it is not necessary to go on to prove what was known to his informant or that any

facts on which he based a suspicion were in fact true. The question whether it provided reasonable grounds for the

suspicion depends on the source of the information and its context, seen in the light of the whole surrounding

circumstances.”

Later at page 303 Lord Hope continued:-

“My Lords, in this case the evidence about the matters which were disclosed at the briefing session to the arresting

officer was indeed scanty. But, as Mr Coghlin pointed out, the trial judge was entitled to weigh up that evidence in the

light of the surrounding circumstances and, having regard to the source of that information to draw inferences as to

what a reasonable man in the position of the independent observer, would make of it. I do not think either the trial judge

or the Court of Appeal misdirected themselves as to the test to be applied. I would dismiss the appeal.”

It is clear from a perusal of the authorities in this area both in this jurisdiction and in England and Wales that the test of reasonable

cause for suspicion sets a very low threshold. That low threshold was not reached in Director of Public Prosecutions v Farrell.

The foregoing representing the law, it is now necessary to look at the information which was available to constitute reasonable cause

for suspicion. Garda O’Mahony was told by Inspector Kenny of the D.S.P.C.A. that a telephone call had been made to the D.S.P.C.A.,

a reputable body exclusively concerned with the welfare of animals, in relation to cruelty to a horse at The Piggery, Megan’s Lane,

Mount Seskin, Tallaght. The informant was anonymous. The D.S.P.C.A. responded to the call by contacting the Gardai and two

Inspectors were assigned by the D.S.P.C.A. to accompany the Gardai in attending on the premises: from this it is reasonable to infer

that the complaint was considered worthy of investigation by the D.S.P.C.A.. The premises were identified. The complaint related to

cruelty to a horse at those premises. Garda O’Mahony’s evidence was that he went to the premises because he believed there were

horses being ill-treated: there was thus evidence of Garda O’Mahony’s subjective state of mind. Further information as to Garda

O’Mahony’s state of knowledge is available in the evidence of Garda O’Connor. Garda O’Mahony told Garda O’Connor that he had had a

conversation with Inspector Kenny and that there was a report of cruelty to animals at the premises. Inspector Kenny had told Garda

O’Mahony that the anonymous telephone caller had told Ms Lorna Swift, a telephone operator with the D.S.P.C.A. that the horse was

being stabled within a building at The Piggery. On arrival at the premises there were two buildings in a field: the information received

was accurate to this extent.

Was the foregoing information and the circumstances to be observed at the premises sufficient to establish reasonable cause for

complaint? As in O’Hara v Chief Constable of the Royal Ulster Constabulary the totality of information and circumstances is scanty but

I am satisfied that the same is sufficient to enable an inference to be drawn as to what a reasonable man in the position of the

independent observer would think of it. “Suspicion” is a word in ordinary use in the English language. It imports not certainty and not

probability. In the phrase “reasonable cause for suspicion” it requires something more than a bare suspicion. In Hussein v Chong Fook

Kam [1970] A.C. 942 at 948 Lord Devlin attempted a definition of suspicion:-

“Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot

prove’. Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the

end.”

In R .v. Da Silva [2006] 4 All E.R. 900 the Court of Appeal was concerned with the meaning of “suspecting” in the Criminal Justice Act

1988 section 93A(1)(a). While the meaning of “suspecting” in that context is not relevant to the issue before this court the definition

attempted by Lord Devlin in Hussein v Chong Fook Kam was cited with approval. The facts in R v Da Silva were that the trial judge

gave guidance to a jury on the meaning of “suspicion”:-

“I suspect that this money is the proceeds of criminal conduct, but it may be, on the other hand, that it is not. That

would fall within the definition of ‘suspicion’. The dictionary definition, which I direct you is relevant, to the meaning of

the word, is this. The dictionary definition of ‘suspicion’: ‘an act of suspecting, the imagining of something without

evidence or on slender evidence, inkling, mistrust.”

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

“If a judge justifiably decides to assist the jury about the meaning of a word, the dictionary definition is, in the absence

of judicial authority, likely to be a sensible starting place…’state of conjecture or surmise’ gives a general indication of

the general meaning of ‘suspicion’”

In the present case the information was from an anonymous source. In this context that is not unusual on the evidence of Inspector

Kenny. In criminal matters the receipt of anonymous information or “tip-offs” by the Gardai can be the starting point of an

investigation. The D.S.P.C.A. rely on the public to convey information about the care of animals and, on the evidence, in most cases

persons making reports to the D.S.P.C.A. will not leave their names. Between forty and sixty such reports a year are received. The

D.S.P.C.A. is a body exclusively concerned with the welfare of animals and is well known in that capacity. It employs Inspectors. Two

Inspectors undertook to assist the investigation of the anonymous complaint and made contact with the Gárda Siochána. From this it

can be inferred that the D.S.P.C.A. with its knowledge and experience of animal welfare and of dealing with complaints considered the

complaint worthy of investigation. While it is for the Gárda Siochána to have reasonable cause to suspect the commission of an

offence and it is not open for the Gárda Siochána simply to rely on the suspicion of the D.S.P.C.A. the fact that the D.S.P.C.A.

considered the anonymous complaint worthy of investigation is a surrounding circumstance to which the Gárda Siochána can have

regard. Likewise the circumstance that a member of the public took the trouble to bring information to the attention of the D.S.P.C.A.

is such a circumstance. On travelling to the site there were buildings suitable for housing animals apparent to the Gárda Siochána and

this to some extent, admittedly limited, supported the anonymous caller whose complaint related to a horse being stabled in a

building. The evidence of Inspector Kenny was that there was a horse in the field and it is reasonable to infer that the horse must

also have been visible to Garda O’Mahony. It is, of course, irrelevant that the information, insofar as animals were being mistreated,

was correct. The information available to the Gárda Siochána did not amount to evidence nor did it amount to a prima facie case but

neither of these are requirements for a suspicion. The submission, however, must not be a bare submission as in Director of Public

Prosecutions v Farrell. Here there was a basis for the suspicion as I have outlined above. In the present case I think also relevant is

the nature of the offence suspected, a continuing offence. If there is a suspicion that animals are being mistreated it is humane and

appropriate that their suffering be alleviated without delay: the awareness of the possibility of continuing mistreatment is a

circumstance relevant in this case. I would adopt a phrase from the judgment in R .v. Da Silva –

“It seems to us that the essential element in the word ‘suspect’ and its affiliates, in this context, is that the defendant

must think that there is a possibility which is more than fanciful, that the relevant facts exist.”

In the present case there was such a possibility that the relevant facts existed and which possibility was more than fanciful having

regard to the circumstances which I have mentioned and which were available to the Gárda Siochána. Having regard to the threshold

which the authorities accept is a low one I am satisfied in the circumstances of this case that it was open to the District Judge to

find that the Gárda Siochána on the evidence had reasonable cause to suspect as required by the Control of Horses Act 1996 section

34. Accordingly I would allow the appeal and I would answer the reformulated question in the affirmative.