Berkeley v Edwards

• Jurisdiction: Ireland
• Court: High Court
• Judgment Date: 01 January 1988
• Neutral Citation: 1988 WJSC-HC 907
• Date: 01 January 1988
• Docket Number: No. 76/1987,[1987 No. 76 J.R.]

1988 WJSC-HC 907

THE HIGH COURT

No. 76/1987

BERKELEY v. EDWARDS & IRELAND & AG

JUDICIAL REVIEW

BETWEEN:

GERARD BERKELEY

Applicant

and

GEORGE EDWARDS, PEACE COMMISSIONER AND IRELAND AND THEATTORNEY GENERAL

Respondents

Citations:

COURTS OF JUSTICE ACT 1924 S88(3)(b)

RSC O.84

LARCENY ACT 1916 S42(1)

CONSTITUTION ART 33

CONSTITUTION ART 40.50

CRIMINAL LAW (JURISDICTION) ACT 1976 S6

LARCENY ACT 1916 S2

LARCENY ACT 1916 S31

LARCENY ACT 1916 S31(1)

RYAN V O'CALLAGHAN UNREP BARR 22.07.87 1987\8\2214

GLOVER, STATE V MCCARTHY 1981 ILRM 47

Synopsis:

CRIMINAL LAW

Warrant

Issue - Validity - Contents - Severance - Property - Search and seizure - Power of peace commissioner - Information sworn by garda - Sufficiency of information - Section 42, sub-s.1, of the Act of 1916 states that, if "it is made to appear by information on oath" before a justice of the peace that there is reasonable cause to believe that any person has in his custody or possession or on his premises any property whatsoever, with respect to which any offence against the Act has been committed, the justice may grant a warrant "to search for and seize" the same - The power of a justice of the peace to sign summonses and warrants was vested in a peace commissioner by s.88, sub-s.3, of the Act of 1924 - On 3/11/85 the respondent peace commissioner signed and issued a warrant which authorised a member of the Garda Siochana to search for stolen property at a specified house and to seize the same if found there - In addition, the warrant purported to authorise the member executing the warrant to "take into custody" and bring before a District Justice every person found in the house who should appear to have been privy to the deposit of any such property, knowing or having reasonable cause to suspect that the goods had been stolen or otherwise unlawfully obtained - Before signing the warrant, the respondent had considered an information, sworn by a garda, stating (a) that the garda was making enquiries into the larceny of electric cookers belonging to a named company, and (b) that the garda had reasonable cause for suspicion, derived from information which he had received and which he believed to be true, that some of the stolen property would be found in the specified house - When the warrant was executed on 3/11/85 property belonging to the specified company was found in the house, which was being occupied by the applicant; the applicant was arrested and later charged with the commission of offences contrary to the Act of 1916 - The applicant was returned for trial in the Circuit Court on an indictment containing counts of larceny and burglary contrary to ss.2 and 23 of the Act of 1916 - On 16/3/87 the applicant obtained liberty to apply (a) for an order of certiorari quashing the warrant dated 3/11/85, (b) for a declaration that s.88, sub- s.3(b), of the Act of 1924 was inconsistent with the provisions of the Constitution and (c) for a declaration that the warrant was invalid - The applicant then applied by notice of motion for the said relief and the respondent filed a statement of the grounds of his opposition - Held, in dismissing the application, that the respondent, in signing and issuing the warrant, was not engaged in the administration of justice in a criminal matter contrary to Article 34, s.1, and Article 37 of the Constitution: ~Ryan v. O'Callaghan~ (Barr J. - 22/7/87) applied - Held that the terms of s.88, sub-s.3(b), of the Act of 1924 were not inconsistent with the provisions of Article 40, s.5, of the Constitution - Held that the information on oath considered by the respondent was sufficient to make it appear to the respondent that there was reasonable cause to believe that stolen property would be found at the said house - Held that the warrant was not rendered invalid because it included a passage purporting to confer a power of arrest, since that passage was severable from the remainder of the contents of the warrant - Held that, in any event, the court would not have exercised its discretion to grant the relief sought since the warrant was spent and the proper forum to rule upon the admissibility of the evidence procured as a result of the execution of the warrant was the Circuit Court in which the applicant was to be tried on indictment - Larceny Act, 1916, s.42 - Courts of Justice Act, 1924, s.88 - Constitution of Ireland, 1937, Articles 34, 37, 40 - (1987/76 JR - Hamilton P. - 9/10/87) - [1988] I.R. 217

|Berkeley V. Edwards|

CONSTITUTION

Organs of State

Powers - Separation - Judicial power - Exceptions - Limited functions and powers - Warrant signed and issued by peace commissioner - ~See~ Criminal Law, warrant - (1987/76 JR - Hamilton P. - 9/10/87) - [1988] I.R. 217

|Berkeley v. Edwards|

CONSTITUTION

Personal rights

Privacy - Dwelling - Forcible entry - Prohibition - Exception - Warrant to search for and seize stolen goods - ~See~ Criminal Law, warrant - (1987/76 JR - Hamilton P. - 9/10/87) - [1988] I.R. 217

|Berkeley v. Edwards|

PEACE COMMISSIONER

Powers

Warrant - Issue - Signature - Property - Search for and seizure of stolen goods - ~See~ Criminal Law, warrant - (1987/76 JR - Hamilton P. - 9/10/87) - [1988] I.R. 217

|Berkeley v. Edwards|

WORDS & PHRASES

"Criminal matters"

Constitution - Organs of State - Powers - Separation - Peace commissioner - Statutory power to sign and issue warrants - ~See~ Criminal Law, warrant - (1987/76 JR - Hamilton J. - 9/10/87)

|Berkeley v. Edwards|

JUDICIAL REVIEW

Certiorari

Remedy - Discretion of court - Benefit to applicant - Spent search warrant - Pending criminal trial of applicant - Elimination of evidence procured by search - Refusal to quash warrant on ground that criminal court the proper forum to decide admissibility of incriminating evidence - ~See~ Criminal Law, warrant - (1987/76 JR - Hamilton P. - 9/10/87) - [1988] I.R. 217

|Berkeley v. Edwards|

1 Judgment of the President of the High Court delivered on the,9th day of October 1987

2 On the 16th day of March 1987 the Applicant herein applied to the Court pursuant to the provisions of Order 84 of the Rules of the Superior Court for liberty to apply for

3 (1) An Order of Certiorari by way of application for judicial review in respect of a warrant to search dated the 3rd day of November 1985 issued by the first-named Respondent in respect of premises situate at 9 River Valley Heights, Swords in the County of Dublin.

4 (2) A declaration by way of judicial review that Section 88 (3)(b) of the Courts of Justice Act, 1924is in contravention of Bunreacht na hEireann.

5 (3) A declaration by way of judicial review that the said warrant is bad in law on the face of it on the grounds set forth at Paragraph E(1)(2) and (3) of the statement upon which the application wasgrounded.

6 The said statement stated that the said reliefs were sought from the following grounds.

7 (1) That the Peace Commissioner in issuing the search warrant as aforesaid was not, and could not have been satisfied by informationon oath of a member of the Garda Siochana that there was reasonable grounds for suspecting any of the matters contained in Section 42(1) of the Larceny Act, 1916, and in particular because no proper or sufficient information was laid before the Respondent, Peace Commissioner whereby he could have been so reasonably satisfied.

8 (2) That Section 88(3)(b) of the Courts of Justice Act, 1924is inconsistent with the provisions of Bunreacht na hEireann and particularly the following:-

9 (1) Article 33 thereof in that in issuing the aforesaid search warrant, the aforesaid Peace Commissioner, Respondent, was purporting to administer justice.

10 (2) That the provisions of the aforesaid Act in allowing Peace Commissioners to issue search warrants is inconsistent with the protection afforded the citizen by Article 40.50.

11 (3) That the aforesaid warrant is bad on the face of it in conferring upon the searching Garda a power of arrest which power is not conferred, pursuant to warrant, by any statute, by any provision of common law as is stated or at all.

12 In his affidavit verifying the facts contained in the aforesaid statement, the Applicant states that he is presently on remand before the Dublin Circuit Criminal Court charged with the followingoffences.

13 (1) Burglarly contrary to Section 23(a) of the Larceny Act, 1916 as inserted by Section 6 of the Criminal Law (Jurisdiction) Act, 1976.

14 (2) Larceny contrary to Section 2 of the Larceny Act, 1916.

15 (3) Receiving stolen property contrary to Section 31 of the Larceny Act, 1916.

16 (4) Receiving stolen property contrary to Section 31(1) of the Larceny Act, 1916.

17 He avers that on the 3rd day of November 1985 Garda Finbar O'Brien of the Crime Task Force swore an information before the first-named Respondent; alleges that the aforesaid information contains no information upon which the first-named Respondent could be satisfied that there was reasonable grounds for suspecting any of the matters contained in Section 42(1) of the Larceny Act, 1916; that the first-named Respondent issued a search warrant and that a search of the premises 9, River Valley Heights, Swords in the County of the City of Dublin was carried out; that certain equipment the property of Novum Limited was found in an upstairs bedroom; that the premises were occupied by the Applicant and a friend of him; that following the search certain members of the Garda Siochana approached him outside the said premises, confronted him with the evidence they alleged against him and arrested him and conveyed him to Pearse Garda Station.

18 He states that he was the occupier of the premises, that the bulk of the evidence against him arises from the said search, that he had a constitutional right to be free from unwarranted search which said right was violated by the procedure before the Peace Commissioner and by the Courts of Justice Act, 1924as aforesaid.

19 The statement of...