Devoy v Ireland

• Jurisdiction: Ireland
• Judgment Date: 01 December 2003
• Docket Number: [2002 No. 151 C.A. & 2002 No.
• Date: 01 December 2003
• Court: High Court

[2004] IEHC 404

High Court

[2002 No. 151 C.A. & 2002 No. 15117P]

Devoy v. Ireland

Jackie Devoy

Plaintiff

and

Ireland and The Attorney General

Defendants

Cases mentioned in this report:-

O'Callaghan v. Ireland [1994] 1 I.R. 555.

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

Constitution - Statute - Validity - Warrant - Body search - Whether power to search on suspicion extension of power to arrest on suspicion of commission of offence - Whether power of arrest can be used for purposes other than charging and bringing person before court - Whether interest of common good justified creation of power of arrest for purpose of search - Misuse of Drugs Act 1977 (No. 12), s. 26 - Misuse of Drugs (Amendment) Act 1984 (No. 18), s. 13 - Constitution of Ireland 1937, Article 40.3.1 and Article 40.3.2.

Evidence - Burden of proof - Witnesses - Garda witnesses - Weight to be attached to evidence.

Tort - Assault - Search of licensed premises - Plaintiff subjected to body search - Manner in which body search conducted - Whether evidence establishing assault.

Appeal from Circuit Court and plenary summons

The facts have been summarised in the headnote and are more fully set out in the judgment of Finnegan P., infra.

In the Circuit Court the plaintiff sought damages for assault, false imprisonment, negligence, breach of duty including statutory duty and defamation. The claim was dismissed on the 26th April, 2002. Notice of appeal was filed by the plaintiff dated the 30th April, 2002.

The plaintiff also issued plenary proceedings in the High Court seeking a declaration that s. 26 of the Act of 1977, as amended, is unconstitutional.

Both matters were heard together by the High Court (Finnegan P.) on the 20th October, 2003.

Section 26 of the Misuse of Drugs Act 1977, as amended, provides,inter alia:-

"(1) If a Justice of the District Court or a Peace Commissioner is satisfied by information on oath of a member of the Garda Síochána that there is reasonable ground for suspecting that -

• (a) a person is in possession in contravention of this Act on any premises of a controlled drug … and that such drug … is on a particular premises, …

• such Justice or Commissioner may issue a search warrant mentioned in subsection (2) of this section."

Section 26(2) of the Act of 1977, as amended, provides inter alia, that a search warrant authorises a named member of An Garda Síochána accompanied by other members of the force to enter the premises named in the warrant and to search the premises and any persons found therein.

The plaintiff was on the premises of a nightclub when it was searched by members of An Garda Síochána pursuant to a search warrant issued under s. 26 of the Act of 1977, as amended. The plaintiff was subjected to a body search which was carried out by a female garda.

The plaintiff complained about the nature of the body search and issued proceedings in the Circuit Court claiming damages for assault, false imprisonment, negligence, breach of duty including statutory duty and defamation. The plaintiff failed in her case before the Circuit Court and appealed this decision to the High Court. During the course of the Circuit Court action, it transpired that the search of the premises was carried out pursuant to s. 26 of the Act of 1977, as amended and not pursuant to s. 23 of the Act of 1977, as amended, as believed by the plaintiff. The plaintiff issued plenary proceedings in the High Court seeking a declaration that s. 26 of the Act of 1977, as amended, is repugnant to the Constitution.

Held by the High Court (Finnegan P.), in dismissing the plaintiff's appeal and in refusing the plaintiff the declaration sought, 1, that the interest of the common good in combating the availability of drugs justified the creation of the power of arrest for the purpose of search created by s. 26 of the Act of 1977, as amended.

2. That the power to search on suspicion, based upon reasonable cause, could be construed as an extension of the ordinary power of arrest on suspicion of the commission of an offence.

O'Callaghan v. Ireland [1994] 1 I.R. 555 applied.

3. That the power of arrest could be exercised for purposes other than those of charging and bringing a person before the court.

4. That where there was a discrepancy between the evidence given by an individual and a member of An Garda Síochána, the court should not accord any greater weight to the evidence given by a member of An Garda Síochána. Where there was a discrepancy between the evidence given the court must look to circumstances independent of the parties to support one or other account of events.

Cur. adv. vult.

Finnegan P. 1st December, 2003

1 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 to 70 members of An Garda Síochána including approximately ten female gardaí 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 on the warrant. Patrons were requested 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 Circuit Court Judge, the plaintiff issued the plenary proceedings, the relief sought being a declaration that s. 26 of the Act of 1977, as amended by s. 13 of the Act of 1984, 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 s. 23 of the Act of 1977, as amended by s. 12 of the Act of 1984. The defence delivered did not disclose the true basis upon which the search was carried out, namely s. 26 of the Act of 1977, 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

2 The plaintiff's 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...