Devoy v Attorney General

JurisdictionIreland
Judgment Date01 December 2003
Neutral Citation[2004] IEHC 404
Date01 December 2003
Docket Number2002 151 C.A.
CourtHigh Court

[2004] IEHC 404

THE HIGH COURT

2002 151 C.A.

BETWEEN
JACKIE DEVOY
PLAINTIFF
AND
IRELAND AND THE ATTORNEY GENERAL
DEFENDANT

RECORD NO: 2002-15117P

Abstract:

Constitutional law - Statute - Validity - Criminal law - Statute investing Gardai with powers of search and detention of individual without suspicion of possession of controlled substance - Whether oppressive of rights of individual citizen - Whether interference with rights of individual citizen disproportionate to benefits of conferring such powers - Misuse of Drugs Act 1977, section 26Ñ Bunreacht na hÉireann, Article 40, sections 3 and 4

section 26 of the Misuse of Drugs Act 1977, as amended, provides that "A search warrant issued under this section shall.. .authorise a Garda.. .to enter.. .the premises named in the warrant, to search the premises and any person found therein. . ." The plaintiff had been searched by the Gardai in a nightclub which was subject to a search warrant under section 26 of the Misuse of Drugs Act 1977. She complained that the search had been conducted oppressively and sued for damages in the Circuit Court for, inter alia, assault, false imprisonment, negligence, where her claim was dismissed. She appealed that decision to the High Court and also instituted plenary proceedings seeking a declaration that the Misuse of Drugs Act 1977 was unconstitutional.

Held by Finnegan P in dismissing the appeal and the plenary proceedings that the plaintiff had failed to prove on the balance of probabilities that the nature of the search was such as to entitle to her to the damages sought. That the interest of the common good in combating the availability of drugs justified the creation of the power of arrest and search created by section 26 of the Act of 1977 and the Oireachtas had maintained a reasonable proportionality between the evil which it sought to prevent and the interference with the constitutional rights of the citizen. That in testing the constitutional validity of any section the Court had to assume that persons given powers under it would exercise those powers in a constitutional manner and the Gardai did so exercise those powers in a proportionate and constitutional manner.

Reporter: P.C.

1

Judgment of Finnegan P. delivered on the 1st day of December 2003.

2

The first matter mentioned in the title hereof is a Circuit Appeal and the second matter a plenary action both arising out of the same set of circumstances. The Plaintiff attended the Blue Banana Nightclub on Saturday evening - Sunday morning the 23rd and 24th November 1996. At approximately 12.30 a.m. on the 24th November 1996 pursuant to a warrant some 60 - 70 members of the Garda Siochana including approximately ten female Gardai entered the premises to effect a search. Inspector Michael Devine who was in charge of the operation caused music to be stopped and the lights to be switched on and over the public address system informed the patrons that it was proposed to search them in reliance of the warrant. Patrons were requested

3

to line up men outside the men’s toilet and ladies outside the ladies’ toilet. Searches were carried out within the respective toilet areas. The Plaintiff in the Circuit Court action complained of the nature of the search her claim being grounded in assault, false imprisonment, negligence and breach of duty and breach of statutory duty and defamation. The Plaintiff failed in the Circuit Court and subsequent to the determination of the learned Circuit Court Judge the Plaintiff issued the plenary proceedings the relief sought being a declaration that the Misuse of Drugs Act 1977 as amended by the Misuse of Drugs Act 1984 section 13 is repugnant to the Constitution. It may be that the decision to institute these proceedings was prompted by circumstances which attended the hearing in the Circuit Court. The Plaintiff in those proceedings proceeded on the assumption that the search was carried out pursuant to the Misuse of Drugs Act 1977 section 23 as amended by the Misuse of Drugs Act 1984 section 12. The defence delivered did not disclose the true basis upon which the search was carried out namely the Misuse of Drugs Act 1977 section 26 as amended. An Affidavit of Discovery filed on behalf of the Defendant did not disclose the warrant or the information sworn in order to obtain the same and neither the warrant nor the information were available at the hearing. By agreement between the parties both matters were heard together.

The Circuit Appeal
4

The Plaintiffs account of what happened to her on this occasion is as follows. On the Saturday evening she had been in the Silver Granite Licensed Premises with her husband, her sister Christine McMahon and other members of her family. She had two pints to drink. She then went to the Blue Banana Nightclub with her family party and shortly after she arrived and before there was an opportunity to purchase a drink

5

the music stopped and she saw Gardai in the premises. She heard the request for patrons to queue outside the toilets to be searched. Her Sister Christine McMahon was at that time in the ladies toilet and as Christine McMahon was pregnant the Plaintiff had a concern for her. She spoke to a Garda at the entrance to the nightclub and asked if it would be in order for her to go to her but that she did not wish to be “strip searched”. The Garda told her that she would not be strip searched. She then went to the head of the queue outside the ladies’ toilet and spoke through the door to her sister who confirmed to her that she was well. At that point a female Garda said to her “Were you strip searched”? And when she replied “No” she was told to enter the toilet. She was subjected to a search in the middle of the floor of the toilet by a female Garda in plain clothes. She had protested saying “I am not going to be strip searched”. At that point the female Garda said to her colleague “Does she want to be locked up for the night”. At this point she submitted to the search. The search was carried out by a uniformed female Garda. The Plaintiff was wearing a twin set and this was pulled up over her head. Her bra strap had broken during the evening and in consequence her breast was exposed and she was embarrassed. She was then ordered to pull up her skirt and the uniformed female Garda bent down and looked up her skirt. She asked the uniformed female Garda for her name and this was refused. She could not see the female Garda’s identifying number as she was wearing a yellow high visibility jacket which covered the same. It has not been possible to identify either of the female Gardai mentioned in the Plaintiffs account.

6

The evidence as to the number of women in the toilet for the purposes of being searched at any one time varied one account being six or seven to the Plaintiff’s

7

twenty five. However on the balance of evidence I think it probable that between nine and twelve women were being searched at any one time.

The Power to Search
8

The Plaintiff’s Civil Bill pleads that the Gardai were exercising their powers under the Misuse of Drugs Acts. In a reply to Particulars this was amplified in the following terms:

9

“The power to stop and search pursuant to section 23 of the Misuse of Drugs Act 1977 (as amended) must only be exercised by a member of the Garda Siochana who with reasonable cause expects that a person is in possession of a controlled drug in contravention of the Act. In this particular case there was no reasonable cause. In addition the search was carried out in a public place. Further particulars of the breach of regulations contained in paragraph 5(d)(e) will be furnished on receipt of discovery and/or interrogatories”.

10

Discovery was obtained and the Affidavit of Discovery contains no mention of the warrant or the information on foot of which it was obtained. The warrant was in fact obtained in reliance on section 26 of the Misuse of Drugs Acts and this was first drawn to the attention of the Plaintiff’s legal advisors during the course of the Circuit Court hearing although neither the warrant nor information were there produced. The defence delivered does not expressly refer to the said section 26. On the evidence I am satisfied that the search was indeed carried out in reliance on a warrant issued pursuant to the provisions of section 26 of the Misuse of Drugs Acts.

11

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

12

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 Siochana that there is reasonable ground for suspecting that -

  1. (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

  2. (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.

    (2) A search warrant issued under this section shall be expressed and operate to authorise a named member of the Garda Siochana, accompanied by such other members of the Garda Siochana as may be necessary, at any time or times within one month of the date of issue of the warrant, to enter if need be by force the premises named in the warrant, to search the premises and any persons found therein, to examine any substance or article found...

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