Byrne v Grey

JurisdictionIreland
CourtHigh Court
Judgment Date09 October 1987
Neutral Citation1988 WJSC-HC 949
Docket NumberNo. 55/1987,[1987 No. 55 JR]
Date09 October 1987
BYRNE v. GREY & IRELAND & AG
JUDICIAL REVIEW

BETWEEN:

CHARLES BYRNE
Applicant

and

THOMAS GREY, IRELAND AND THE ATTORNEY GENERAL
Respondents

1988 WJSC-HC 949

No. 55/1987

THE HIGH COURT

Synopsis:

CRIMINAL LAW

Warrant

Issue - Validity - Peace commissioner - Powers - Information - Sufficiency - Certiorari - Discretion of court - Benefit to applicant - Pending trial of applicant on indictment - Elimination of evidence procured by execution of warrant - Court of trial the proper forum to determine the admissibility of such evidence - Section 26, sub-s.1, of the Act of 1977 states (inter alia) that a peace commissioner may issue a search warrant mentioned in sub-s.2 if he "is satisfied by information on oath" of a member of the Garda Siochana that there is reasonable ground for suspecting that a plant of the genus cannabis ... is being cultivated contrary to s.17 of the Act on or in any premises or other land - Sub-sections 2 and 3 provide (inter alia) that a search warrant issued under s.26 shall authorise a named member of the Garda Siochana to enter the premises or land named in the warrant and to search the same and any persons found therein, and may arrest such persons for the purpose of searching them - On 3/8/86 the respondent peace commissioner signed and issued (pursuant to s.26 of the Act of 1977) a search warrant which authorised a garda to enter a specified house and premises and to search for controlled drugs there - Before signing the warrant, the respondent had considered an information sworn by the garda - In that information the garda averred that he had reasonable grounds for suspecting that a plant of the genus cannabis was being cultivated at the premises - The applicant was visiting the occupants of the house when the search was made pursuant to the warrant - The search revealed two packets of heroin at the premises - The applicant was found to have some plastic bags in one of his pockets, he was arrested pursuant to s.25 of the Act of 1977 and was subsequently charged with criminal offences - The applicant was returned for trial in the Circuit Court on an indictment containing counts which charged him with having had possession of controlled drugs - On 16/2/87 the applicant applied to the High Court for, and obtained, leave to apply for an order of certiorari quashing the respondent's search warrant; in granting such leave the court reserved for the court which heard the applicant's motion for that order the determination of the question whether the period of six months mentioned in order 84, r.21(1), of the Rules of 1986 should be extended to enable the applicant to bring the motion - Accordingly, the applicant served on the respondent notice of his motion seeking the said relief - Held, in dismissing the motion, that the court would extend the period allowed to the applicant for bringing his motion since the applicant's initial application had been made only 13 days after the expiry of the six months mentioned in order 84, r.21(1), of the Rules of 1986 - Held that it was clear from the terms of the warrant that the respondent, when issuing the warrant, had relied on the sworn information of the garda who had averred that he had reasonable grounds for suspecting that the said plant was being cultivated - Held that s.26, sub-s.1, of the Act of 1977 expressly states that the condition precedent to the issue of a warrant pursuant to that section is the District Justice or peace commissioner being satisfied, by the said information on oath, that there is reasonable ground for forming one of the enumerated suspicions - Held that, as the respondent had not been shown to have been so satisfied, his issue of the warrant had been made without jurisdiction: ~Inland Revenue Commissioners v. Rossminster Ltd.~ [1981] All E.R. considered - Held that, as the warrant was spent, the applicant's only interest in having it quashed was to render inadmissible the evidence procured as a result of its execution - Held that the court in which the applicant would be tried on indictment was the appropriate forum to decide upon the admissibility of such evidence - Held that, in such circumstances, the court would not exercise its discretion to grant the relief sought by the applicant: ~The State (Glover) v. McCarthy~ [1981] ILRM 47 considered - Held that the respondent, in signing and issuing the warrant, had not been exercising a function of a judicial nature in a criminal matter: ~Ryan v. O'Callaghan~ (Barr J. - 22/7/87) considered - Held that the provisions of s.26, sub-s.1, of the Act of 1977, authorising a peace commissioner to issue such search warrant, are not invalid having regard to the provisions of Article 40, s.5, of the Constitution prohibiting forcible entry into the dwellings of citizens - Held that the respondent, in issuing the said warrant, had not embarked upon part of the trial of the applicant contrary to Article 34, s.1, of the Constitution - Rules of the Superior Courts, 1986, order 84, r.21 - Misuse of Drugs Act, 1977, s.26 - Constitution of Ireland, 1937, Articles 34, 37, 40 - (1987/55 JR - Hamilton P. - 9/10/87) - [1988] I.R. 31

|Byrne v. Grey|

CONSTITUTION

Organs of State

Powers - Separation - Judicial power - Exceptions - Limited functions and powers - Warrant signed and issued by peace commissioner - ~See~ Criminal Law, warrant - (1987/55 JR - Hamilton P. - 9/10/87) - [1988] I.R. 31

|Byrne v. Grey|

CONSTITUTION

Personal rights

Privacy - Dwelling - Forcible entry - Prohibition - Exception - Warrant to search for and seize controlled drugs - ~See~ Criminal Law, warrant - (1987/55 JR - Hamilton P. - 9/10/87) - [1988] I.R. 31

|Byrne v. Grey|

PEACE COMMISSIONER

Powers

Warrant - Issue - Signature - Controlled drugs - Search for and seizure of drugs - ~See~ Criminal Law, warrant - (1987/55 JR - Hamilton P. - 9/10/87) - [1988] I.R. 31

|Byrne v. Grey|

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 - (1987/55 JR - Hamilton P. - 9/10/87) - [1988] I.R. 31

|Byrne v. Grey|

PRACTICE

Time limit

Extension - Judicial review - Certiorari - Search warrant - Application made 13 days after expiry of the six months allowed by rules of court - ~See~ Criminal Law, warrant - (1987/55 JR - Hamilton P. - 9/10/87) - [1988] I.R. 31

|Byrne v. Grey|

Citations:

RSC O.20

CONSTITUTION ART 34

CONSTITUTION ART 40.5

MISUSE OF DRUGS ACT 1977 S26

MISUSE OF DRUGS ACT 1984 S13

MISUSE OF DRUGS ACT 1977 S17

MISUSE OF DRUGS ACT 1977 S3

IRC V ROSSMINSTER LTD 1981 AER 90

R V ELECTRICITY COMMISSIONERS 1924 1 KB 171

RSC O.84 r21

GLOVER, STATE V MCCARTHY 1981 ILRM 47

STATE V MCPOLIN 1976 IR 93

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

1

Judgment of the President of the High Court delivered on the9th day of October 1987

2

The Applicant herein resides at 8, Greenfort Lawn, Clondalkin in the County of the City of Dublin and on the 16th day of February 1987 applied to the High Court pursuant to the provisions of Order 84, Rule 20 of the Rules of the Superior Court for leave to apply for an Order of Certiorari by way of an application for judicial review in respect of a warrant to search dated the 3rd day of August 1986 in respect of 50 White Brook Park, Tallaght in the City of Dublin issued by the first-named Respondent herein.

3

The application was grounded on the statement dated the 17th day of February 1987 signed by the Solicitor for the Applicant and the affidavit of the Applicant verifying the facts therein set forth.

4

On the 16th day of February 1987, it was ordered that

5

(1) the question of whether the Applicant is precluded by lapse of time from making applications for leave to apply for judicial review in respect of the said warrant to search dated the 3rd day of August 1986 be reserved to the hearing of the motion.

6

(2) The Applicant to have leave to apply for an Order of Certiorari by way of application for judicial review in accordance with Paragraph D 1213 of the said statement dated the 17th day of February on the grounds set forth in Paragraph (e) 1 and 2 thereof.

7

(3) The application for judicial review be made by Originating Notice of Motion.

8

(4) That the said Applicant serve the said Notice of Motion together with a copy of the said statement dated the 17th day of February 1987 and the said verifying affidavit and a copy of the order on the first-named Respondent in the title hereof, and the Chief State Solicitor on behalf of the second and third-named Respondents in the title hereof and on behalf of the Director of Public Prosecutions, the Notice Party herein.

9

The notice delivered in accordance with the provisions of Order 20 stated that the grounds upon which the relief was sought were:

10

1. The Peace Commissioner in issuing the search warrant was not and could not have been satisfied by information on oath of a member of the Garda Siochana that there was reasonable grounds for suspecting any of the matters contained in Section 26(i) (a) of the Misuse of Drugs Act, 1977as amended by Section 13 of the Misuse of Drugs Act, 1984and in particular because no proper or sufficient information was laid before the Respondent Peace Commissioner whereby he could so be reasonably satisfied.

11

2. That Section 26 of the Misuse of Drugs Act, 1977as amended by Section 13 of the Misuse of Drugs Act, 1984is inconsistent with the provisions of Bunreacht na hEireann and in particular with the following:-

12

(1) Article 34 thereof in that in issuing the aforesaid search warrant the aforesaid Peace Commissioner respondent was purporting to administer justice.

13

(2) That the provisions of the aforesaid Act in...

To continue reading

Request your trial
85 cases
  • DPP v Mallon
    • Ireland
    • Court of Criminal Appeal
    • 3 March 2011
    ...People (AG) v O'Brien [1965] IR 142 followed; Kuruma v The Queen [1955] AC 197 and Mapp v Ohio (1961) 367 US 643 considered; Byrne v Grey [1988] IR 31, Director of Public Prosecutions v Dunne [1994] 2 IR 537, People (DPP) v Kenny [1990] 2 IR 110, Simple Imports Ltd v Revenue Commissioner......
  • K (K) v Garda Eamonn Taaffe and Others
    • Ireland
    • High Court
    • 15 May 2009
    ...... JUSTICE ACT 1994 S38(1A) MULLINS v HARNETT 1998 4 IR 426 SWAINE v C 1964 IR 423 DPP v KEMMY 1980 1 IR 160 BYRNE v GREY 1988 1 IR 31 INTERPRETATION ACT 2005 S5 DPP v DUNNE 1994 2 IR 537 SIMPLE IMPORTS v REVENUE CMRS 2000 2 IR 243 ......
  • DPP v Tallant
    • Ireland
    • Court of Criminal Appeal
    • 19 March 2003
    ...OF PUBLC PROSEUCTIONS -v- DEREK TALLANT Applicant Citations: MISUSE OF DRUGS ACT 1977 S26 MISUSE OF DRUGS (AMDT) ACT 1984 BYRNE V GREY 1988 IR 31 R V IRC EX PARTE ROSSMINISTER 1980 AC 952 DPP V KENNY 1990 2 IR 110 COURTS OF JUSTICE ACT 1924 S29 Synopsis: CRIMINAL LAW Drugs offences Validi......
  • DPP v Sweeney
    • Ireland
    • High Court
    • 26 March 1996
    ...– 1987 OFFENCES AGAINST THE STATE ACT 1939 S29(1) CRIMINAL LAW ACT 1976 S5 OFFENCES AGAINST THE STATE ACT 1939 PART V BYRNE V GRAY & ORS 1988 IR 31 MISUSE OF DRUGS ACT 1977 S26 Synopsis: CRIMINAL LAW Warrant Issue - Validity - Search - Justification - Garda Siochana - Power of Superintende......
  • Request a trial to view additional results
1 books & journal articles
  • Crime control, the security state and constitutional justice in Ireland
    • United Kingdom
    • International Journal of Evidence & Proof, The Nbr. 20-4, October 2016
    • 1 October 2016
    ...the s. 29 provision as it then existed (see Kenny, 2014).16. See Simple Imports Ltd vRevenue Commissioners [2000] 2 IR 243; Byrne vGrey [1988] IR 31.17. See s. 14 of the Criminal Assets Bureau Act 1996; and s. 8 of the Criminal Justice (Drug Trafficking) Act 1996.18. [2012] IESC 11.19. Ibid......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT