O'Callaghan v Ireland

• Jurisdiction: Ireland
• Judgment Date: 01 January 1994
• Date: 01 January 1994
• Docket Number: [S.C. No. 247 of 1992]
• Court: Supreme Court

O'Callaghan v. Ireland

Thomas O'Callaghan

Plaintiff

and

Ireland, The Attorney General and The Director of Public Prosecutions, Defendants

[S.C. No. 247 of 1992]

Supreme Court

Constitution - Statute - Validity - Criminal law - Statute investing garda with powers of search and detention upon suspicion of possession of controlled substance - Statute not specifying restrictions on exercise of such powers - Whether extension of powers of arrest upon suspicion - Whether oppressive of rights of individual citizen - Whether interference with rights of individual citizen disproportionate to benefits of conferring such powers - Whether such powers in ease of suspect - Whether person detained for purpose of such search having same rights as person arrested under other powers - Whether possibility of unconstitutional exercise of powers rendering conferral of powers invalid - Misuse of Drugs Act, 1977 (No. 12), s. 23 - Misuse of Drugs (Amendment) Act, 1984 (No. 18), s. 12 - Constitution of Ireland, 1937, Article 40, sections 3 and 4.

Section 23 of the Misuse of Drugs Act, 1977, as amended by s. 12 of the Misuse of Drugs (Amendment) Act, 1984, provides inter alia that:—

"(1) A member of the Garda Síochána who with reasonable cause suspects that a person is in possession, in contravention of this Act, of a controlled drug, may without warrant -

• (a) search the person and if he considers it necessary for the purpose, detain the person for such time as is reasonably necessary for making the search . . .

  • (1A) Where a member of the Garda Síochána decides to search a person under this section, he may require the person to accompany him to a garda station for the purpose of being so searched at that station."

The plaintiff was returned for trial on charges relating to his resisting attempts to search him pursuant to s. 23 of the Act of 1977. Prior to the trial of those charges, he sought a declaration that the provisions of s. 23 of the Act of 1977 were invalid having regard to the provisions of the Constitution in that the powers of detention for the purpose of carrying out a search were independent of any decision to arrest, and that such powers were unprecedented, created a situation where the rights of the citizen were uncertain, and were unnecessary and oppressive. The plaintiff also relied on the fact that s. 23 failed to provide clear directions as to the manner in which such powers should be used, in contrast with s. 2 of the Customs and Excise (Miscellaneous Provisions) Act, 1988, which did provide such directions in relation to similar powers of search without warrant conferred thereunder. The High Court upheld the validity of the impugned provisions.

Held by the Supreme Court (Finlay C.J., Hederman, Egan, Blayney and Denham JJ.), in dismissing the appeal, 1, that the High Court had been correct in construing the powers conferred by s. 23 as an extension of the powers of arrest upon suspicion of the commission of an offence.

2. That the High Court had also been correct in holding that the reconciliation of the exercise of personal rights with the claims of the common good was a matter for the Legislature, the decision of which should prevail unless it was oppressive to all or some citizens, or there was no reasonable proportion between the benefits conferred and the interference with the personal rights of the citizen; and had further been correct in deciding that the legislature had acted within a reasonable and proper discretion in conferring the impugned powers.

Ryan v. The Attorney General [1965] I.R. 294 applied.

3. That the Court was in agreement with the conclusion of the High Court that the exercise of the impugned powers might often be in ease of a suspect, in that a suspect who transpired not to be in possession of a controlled substance might simply be searched rather than arrested, brought to a garda station and then searched.

4. That a...