Court of Criminal Appeal quashed dismissal of charges due to invalid search warrant citing jurisdictional error.

THE COURT OF CRIMINAL APPEAL

CCA No. 161CPX/12

Bill No. LH17/12

O’Donnell J.

Moriarty J.

Herbert J.

Between/

The People at the Suit of the Director of Public Prosecutions

Prosecutor/Appellant

And

Desmond Collins

Defendant/Respondent

Judgment of the Court delivered on the 31st of July 2014, by O’Donnell J.

1. This is an appeal by the Director of Public Prosecutions (“D.P.P.” or “the Director”) against the order of His Honour Judge O’Shea

sitting at Dundalk in the Eastern Circuit and made pursuant to s.4(E) of the Criminal Procedure Act 1967 (“the 1967 Act”) as inserted

by s.9 of the Criminal Justice Act 1999, whereby he dismissed the charges against the respondent. The Court also heard a motion

brought by the respondent to dismiss the Director’s application on grounds of abuse of process and inordinate and inexcusable delay

based on the fact that the order of Judge O’Shea was made on the 17th of May 2012 but the Director’s submissions were not lodged

until November 2013.

2. The facts upon which the learned Circuit Court Judge dismissed the charges can be shortly stated. The respondent had been

charged with seven counts. Five related to an address at Drogheda, County Louth. They were:

(1) Possession of diamorphine at 308 Rathmullen Park, Drogheda, County Louth;

(2) Possession of diamorphine with intent to supply at the same address;

(3) Possession of diamorphine to a value in excess of €13,000 at the same address;

(4) Possession of cannabis at the same address;

(5) Possession of cannabis with intent to supply at the same address.

The sixth and seventh counts related to possession of diamorphine and possession of diamorphine with intent to supply which was

alleged to have occurred at Santry Garda Station. All the offences were alleged to have occurred on the 16th of July 2010. The

defendant made certain admissions while under arrest. Nevertheless it is accepted that all the charges against the

defendant/respondent were dependent upon the search warrant issued to the investigating guard, Garda Kieran Murrihy of Santry

Garda Station on the 6th of July 2010, by Judge Patrick Clyne. This is because the arrest after which the admission was made took

place on the premises at 308 Rathmullen Park to which entry was gained on foot of the warrant and similarly the accused had been

brought to Santry Garda Station on foot of that arrest. It appears to be accepted that if the warrant was invalid, it followed that the

arrest was also invalid and that the defendant was in unlawful custody, and being detained in breach of his constitutional right to

liberty when the admission was made and the further search of his person was conducted at Santry. That this was the legal

consequence if the warrant was ruled invalid was accepted by the D.P.P. on this appeal, and accordingly the Court expresses no view

upon it nor on the question of whether it is appropriate that errors in warrants without more should have such consequences in law.

As the law stands this Court is bound by the decision of the Supreme Court in The People (The Director of Public Prosecutions) v.

Kenny [1990] 2 I.R.110 (“Kenny”). No issue is raised as to the sufficiency of the information on foot of which the warrant was issued,

nor is it asserted that the statutory requirements of s.26 of the Misuse of Drugs Act 1977, as amended, were not complied with, nor

indeed is it contended that the warrant failed to record such compliance on its face. It is also clear that the District Judge had

jurisdiction to issue the warrant for 308 Rathmullen Park.

3. The warrant in this case reads as follows:

“An Chúirt Dhúiche The District Court Dublin Metropolitan District

Section 26 Misuse of Drugs Act 1970, 1977/1984 warrant to search.

Whereas I am satisfied by information on oath of Garda Ciaran Murrihy a member of An Garda Síochána of Santry Garda Station that

there is reasonable cause for suspecting:

• That a person is in possession, in contravention of the Misuse of Drugs Act, 1977 and 1984, of

• A controlled drug, namely Diamorphine

• And that such drug is on the premises at No. 308 Rathmullen Park, Drogheda, County Louth, in the said District,

• THIS IS TO AUTHORISE You Garda Ciaran Murrihy the said member of An Garda Síochána, accompanied by such

other members of An Garda Síochána and such other persons who may be necessary, at any time or times within

one month of the date hereof, to enter if need be by force, the said* premises at No. 308 Rathmullen Park,

Drogheda, County Louth in the said District to search such premises and any persons found therein, to examine

any substance, article or other thing found thereon or therein, to inspect any book, record or other document

found thereon and, if there is a reasonable ground for suspecting that an offence is being or has been committed

under the Misuse of Drugs Act 1997 and 1984 in relation to a substance, article or other thing found on such

premises or that a document so found is a document mentioned in subsection (1)(b) of section 26 of the Misuse of

Drugs Act, 1977 or as record or other document which you have reasonable cause to believe to be a document

which may be required as evidence in proceedings for an offence under the Misuse of Drugs Act 1977 and 1984 to

seize and detain the substance, article, document or other thing as the case may be.

dated the 16th day of July 2010.

Signed: Patrick Clyne

JUDGE OF THE DISTRICT COURT,

To Garda Ciaran Murrihy of Santry Garda station.”

(The portions of the warrant italicised above are the Court’s emphases in order to identify the passages upon which the argument

focussed, and appear in ordinary type in the original warrant.)

4. Although no evidence was given of this in the Circuit Court, it appears reasonable to assume that this warrant was produced using

a standard template and that the pieces of information underlined in ordinary print in the warrant were the individual pieces of

information which were inputted into the standard form. Again, it seems probable that this form was used because the investigating

garda was attached to Santry Garda Station and therefore would in the normal course of events be normally concerned with the

Dublin Metropolitan District. No evidence was given in the Circuit Court as to the extent of the Dublin Metropolitan District Court but it

was accepted that Drogheda is not within that District. The fact is that Judge Clyne is assigned to the District Court which is in the

Louth area, and that the premises at Rathmullen Park, Drogheda, County Louth, is within that area. It follows of course that the

premises was not within the Dublin Metropolitan District. There are therefore three defects (to use a neutral term), or perhaps three

occasions of the same error, in the format of the warrant which have been italicised in the text set out above. The heading “Dublin

Metropolitan District” and the two reference to No. 308 Rathmullen Park, Drogheda, County Louth, as being “in said District” which

must be understood as referring to the Dublin Metropolitan District. The question for the Circuit Court, and for this Court on appeal, is

what is the significance of these defects?

5. First, it is necessary to appreciate that the question here is entirely one of the formalities shown on the warrant: there is no

question but that the judge had substantive jurisdiction to issue the warrant both in terms of geographical jurisdiction, being a judge

with jurisdiction to issue a warrant in respect of these premises, and also in terms of subject matter jurisdiction, because the

statutory requirements for a warrant under s.26 of the Misuse of Drugs Act 1977 had been fulfilled.

6. It is necessary first to deal with the application by the respondent seeking an order dismissing the appeal herein on grounds of

delay. In this regard it was explained that although the Notice of Appeal had been filed within the time limited by the statute, it is the

practice of the Court of Criminal Appeal not to list cases until submissions are available. In this case the submissions of the D.P.P. did

not become available until November 2013 and were then responded to. A date for hearing was sought and obtained, a week before

this motion issued. On the hearing of this appeal counsel for the D.P.P. frankly and properly accepted that the responsibility for the

delay rested largely with him, and was due to an oversight.

7. For the purposes of this argument the Court is prepared to accept that it has jurisdiction to dismiss an appeal for want of

prosecution. The Court also accepts that it is desirable that the jurisdiction for an appeal of a ruling under s.4(E) of the 1967 should

be operated with considerable expedition. It has been emphasised that the procedure itself is useful in seeking an early hearing and

determination of issues which may be determinative of the trial. But it follows, almost with even greater force, that when a ruling has

been made favourable to an accused, it may be tantamount to an acquittal and it is very undesirable that the person should

nevertheless be in doubt as to their status, for any prolonged period of time. It greatly adds to the ordeal that a criminal trial must

necessarily involve if the person having perhaps waited a substantial time for a trial, obtains a favourable preliminary ruling

determining the trial, but then faces an indefinite delay during which that ruling is questioned with the prospect of a trial restarting.

Indeed, the possibility arises that a ruling under s.4(E) of the 1967 Act might involve the dismissal of only some of the charges

against the person and accordingly a trial may be held up pending the prosecution appeal against such dismissal. In such

circumstances any delay in prosecuting the appeal is particularly undesirable, and it is to be expected that rulings under s.4(E) of the

1967 Act should be processed very promptly. However here, the respondent took no step to seek to have the case expedited or even

the minimum step of corresponding with the D.P.P. threatening a motion such as this in the event that the matter was not proceeded

with. The application here did not issue until almost six months after the Director’s default had been remedied, and only a week before

the hearing of the appeal. In the circumstances of this case, accordingly the Court does not consider it appropriate to make any

preliminary order dismissing the appeal.

8. The leading case on the formal requirements of a warrant is Simple Imports Ltd. v. The Revenue Commissioners [2000] 2 I.R. 243

(“Simple Imports”). This Court in The People (The Director of Public Prosecutions) v. Mallon [2011] 2 I.R. 544 (“Mallon”) described the

ratio of that case as being that a warrant must show jurisdiction on its face. In fact, it may be more precise and correct to say that

the case establishes that a warrant must not positively demonstrate a failure to comply with statutory jurisdiction. However analysed,

Simple Imports, though a majority decision of a three judge Supreme Court remains the authoritative statement of the law. A warrant

must be regular on its face at least insomuch as it must not state matters showing a lack of jurisdiction, even where jurisdiction

exists in fact.

9. The particular issue in this case was considered in two factually similar cases to which this Court has been referred in argument

and which shed some light on it. The first was the unanimous decision of a five person Supreme Court in The People (The Director of

Public Prosecutions) v. Edgeworth [2001] 2 I.R. 131 (“Edgeworth”). Significantly that Court contained both Keane C.J. who delivered

the majority decision in Simple Imports and Hardiman J. who had appeared in that case as counsel for the successful party. The

decision in the Supreme Court in Edgeworth was delivered by Hardiman J.

10. The facts in Edgeworth were straightforward. That case too concerned a warrant which had been issued under ss.26 and 27 of

the Misuse of Drugs Act 1977, as amended, in that case by a peace commissioner. However the form was erroneously headed “The

District Court”. The peace commissioner had signed the warrant and in doing so crossed out the words on the printed form “Judge of

the District Court” and had written in the words “Peace Commissioner”. The warrant however did not state that the peace

commissioner was authorised to issue a warrant for the area containing the dwelling that had been the subject of the search.

11. The Dublin Circuit Criminal Court found that the warrant was invalid. The D.P.P. exercised the power under s.34(1) of the Criminal

Procedure Act 1967 of referring the matter to the Supreme Court without prejudice to the verdict in favour of the accused. The

Supreme Court (Keane C.J., Denham, Murphy, Murray and Hardiman JJ.) unanimously held that the warrant was valid. The warrant

correctly recited the statutory requirements imposed by s.26 of the Misuse of Drugs Act 1977, as amended, for the grant of a

warrant. The term “District Court” was a misdescription and an error but that did not invalidate the warrant. At page 137 Hardiman J.

referred to earlier cases including Simple Imports and said:

“In each of the cases cited, there had been a failure to demonstrate that the conditions laid down by the

legislature had in fact been met. In the first of them, Simple Imports Ltd. v. Revenue Commissioners [2000] 2 I.R.

243, 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.”

12. The fact that the warrant did not state that the peace commissioner was attached to the relevant area or authorised to issue

warrants in respect of dwellings or other premises within that area was also not fatal to the warrant. At pages 137 to 138 it is

stated:

“It follows from this that, if at the trial [the Commissioner’s] warrant of appointment had not been shown to extend

to the area where the premises sought to be searched were situated, this would have been fatal to the validity of

the warrant. But there was no such omission at the trial and the uncontradicted evidence was that her appointment

was in respect of the relevant county. A warrant issued under the provisions of s. 26 of the Misuse of Drugs Act,

1977, as amended, is not required either by the terms of that section or by any general enactment or rule to carry

on its face a statement of the counties to which a peace commissioner’s warrant of appointment relates. The

omission to do so is not a breach of any condition laid down by law for the issue of a warrant.”

13. It should be noted that on one view the appointment of the peace commissioner to the relevant area was essential to her

jurisdiction to issue the warrant. It was of course a substantive requirement which if successfully challenged would invalidate the

warrant. Thus if it could be proven that the Commissioner was not appointed for the area in question the warrant would fall. However

a positive statement to the effect that the Commissioner was so appointed was not necessary on the face of the warrant. The formal

requirements of a warrant, established by Simple Imports it seems, are limited to those of the statute authorising the grant of the

warrant.

14. However a relatively recent decision of this Court in The Director of Public Prosecutions v. McCarthy [2010] IECCA 89

(“McCarthy”) on closely related facts resulted in a warrant being held invalid. Again the case related to a warrant issued under s.26

of the Misuse of Drugs Act 1977, as amended. This is not necessarily surprising. Many cases where the offence is committed by

possession of items or substances such as controlled drugs, firearms explosives or child pornography will involve a search of premises

and thus necessitate a warrant. This observation does however emphasise the significance of the law relating to the validity of

warrants and the consequent exclusion of evidence. In that case, like Edgeworth, the warrant had been issued by a peace

commissioner. Again, like Edgeworth, the warrant was entitled erroneously “The District Court”. Again, it was signed by the peace

commissioner, but in this case the printed words “Judge of the District Court” were not deleted, although there was an annotation

beside the signature which was difficult to read, but which the prosecution alleged were the letters “P.C.” meaning presumably, peace

commissioner. The trial judge ruled that the warrant was invalid, and the Court of Criminal Appeal (Macken, Budd and O’Keeffe, JJ.)

agreed.

15. At first sight it is somewhat difficult to reconcile this decision of the Supreme Court in Edgeworth, with that of the Court of

Criminal Appeal in McCarthy at least on a broad reading of the decision in Edgeworth. The reasoning of the Court of Criminal Appeal in

McCarthy is however contained in the final substantive paragraph of the judgment:

“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 McCarthy it was pointed out that in Edgeworth (at page 136) Hardiman J. had observed that in that case the status of the person

actually issuing the warrant appeared clearly on its face. In that way Edgeworth was distinguishable. The key feature of McCarthy

was that the Court read the warrant as asserting that the peace commissioner was a judge which was not the case.

16. It is necessary to observe that the fine distinctions made by the case law (of which Edgeworth and McCarthy are only a sample)

and the careful debate over what in another context would seem to be obvious but forgivable errors, is given particular focus by the

rigidity of the rule laid down in Kenny, which has been understood (and was understood in the case) as requiring that once a warrant

is invalid, any search would be treated as a deliberate and conscious breach of the constitutional right of the citizen, and accordingly

that all evidence obtained thereby must be excluded, almost automatically, subject to exceptions which certainly do not arise in this

case.

17. The reasoning in Edgeworth might lead the conclusion that since the statutory requirements of s.26 of the Misuse of Drugs Act

1977, as amended, have been complied with, the reference to “Dublin Metropolitan District” in this case and “within the said District”

are merely erroneous and of less significance than the error in Edgeworth, since there was no error as to the status of the person

issuing the warrant. On the other hand, the reasoning in McCarthy could be understood as holding that where a warrant asserts,

states, or suggests a jurisdiction that is incorrect (even if the person authorising the warrant had a jurisdiction in fact) then it is

invalid. If that reason is applied here then the fact that the warrant asserts an incorrect jurisdiction by reference to the Dublin

Metropolitan District is fatal to its validity.

18. In this case, the Court considers it cannot distinguish this case satisfactorily from the decision in McCarthy. In one sense the

problem here was more substantial. The District Court is a court of local and limited jurisdiction. The geographical area of the Court’s

jurisdiction is essential to the jurisdiction of the judge. The decision in McCarthy treats Edgeworth as being a case in which there was

no confusion in fact because the status of the person issuing the warrant was clear and the heading could be ignored. Here the

heading “Dublin Metropolitan District” is relevant to the content of the warrant since it relates to the jurisdictional district within

which the premises are alleged to be found. The warrant states a jurisdiction which the District judge did not have, and which would

not justify the issuance of the warrant for the location in question. The learned Circuit Court Judge in this case treated this error as

one which was fundamental and in the context of a local and limited jurisdiction it was perhaps appropriate to so describe it. It is not

a ‘mere error’ which ‘does not mislead’, as in the case of Mallon. Accordingly, on the basis of authority, this Court must conclude that

the learned judge was correct to hold the warrant invalid and the evidence inadmissible. It is apparent however, that these

distinctions are very, and perhaps excessively, refined. It is also the case that the law on the validity of warrants cannot be viewed

in isolation from the consequences of such invalidity. Whether warrants should be held to be invalid on such a basis is a matter that

could usefully be reviewed by the Supreme Court. The significance of a decision on the validity of the warrant for the admissibility of

evidence (which is the crucial question) is a closely related issue which deserves consideration. The current position on warrants and

the admission of evidence obtained thereunder is far from satisfactory, but given the decision in McCarthy in particular, this Court

does not consider it can come to any other conclusion, without overruling that decision, which this Court does not have power to do,

and bringing further confusion to this area.