Director of Public Prosecutions v O'Neill and Others

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Charleton J,Edwards J,McCarthy J
• Judgment Date: 31 July 2024
• Neutral Citation: [2024] IECA 204
• Docket Number: Court of Appeal Criminal number: 111/2024

Between

The People (at the suit of the Director of Public Prosecutions)

Prosecutor/Appellant

and

Edmond (Eamon) O'Neill, Colm Geary, Thomas McGlinchey and Anne-Marie Hassett

Accused/Respondents

[2024] IECA 204

Charleton J

Edwards J

McCarthy J

Court of Appeal Criminal number: 111/2024

Limerick Criminal Court bill number: LK 125/2021

An Chúirt Achomhairc

The Court of Appeal

Judgment of the Court delivered on Wednesday 31 July 2024

1 On 14 May 2019 the District Court, sitting at Ennis, issued two search warrants for the home and office of the accused Edmond O'Neill in county Clare. He is a Superintendent in An Garda Síochána, the other accused are also sworn members. The basis of that warrant is argued to be inadequate and intentionally deceptive. It was justified by an 8 page, single-spaced, information sworn before the court by a garda of detective inspector rank. At that point, the enquiries pursued were as to offences under the Criminal Justice (Corruption Offences) Act 2018. The charges on the indictment against the accused now concern interference with the course of justice between May 2018 and May 2019. The search yielded information, the prosecution allege, which may tend towards the establishment of proof. That, however, will ultimately be a matter for a jury. Of significance here is that during the search, several mobile telephones and computer devices were seized and scrutinised as to messages stored therein. It is appropriate to avoid any particular detail concerning that proposed evidence here.

2 Before Judge Tom O'Donnell in Limerick Circuit Court, an application was made in October 2023 at a very long preliminary hearing by all accused, under s 6 of the Criminal Procedure Act 2021, to exclude essentially everything found in the home of Edmond O'Neill. Judge O'Donnell, in a ruling on 6 November 2023, found the search warrant to be bad in law because of deception and inadequacy. The judge also held that Anne-Marie Hassett, who also lived in the house, had also been illegally held by the gardaí during that search. This is a prosecution appeal under s 7(1) of the 2021 Act seeking to reverse that ruling. Section 7(1) of the 2021 Act provides:

(1) Where the trial court makes a relevant order at a preliminary trial hearing to the effect that evidence shall not be admitted at the trial of the offence, the prosecution may, subject to subsection (2), appeal the order on a question of law to—

(a) the Court of Appeal, or

(b) in the case of an order made by the Central Criminal Court, the Court of Appeal or the Supreme Court under Article 34.5.4° of the Constitution.

Ruling

3 Put in concise terms, the reasoning of the trial judge was that:

• 1 A crucial witness had not been called by the prosecution and that this put a “spectre” over the prosecution case because, as it was put, that witness “looms largely” and his “absence is a mystery to the Court”: that this absence of testimony undermined the State's case.

• 2 In presenting the information grounding the search warrant to the District Court judge, the gardaí “displayed a lack of candour”, which was deliberate and was a conscious stratagem both in testimony and in the conduct of the corruption investigation.

• 3 That Anne-Marie Hassett was both unlawfully questioned and unlawfully detained during the course of the search while she was in her night attire at the home she shared with Edmond O'Neill and, consequently, in revealing to the investigating gardaí the pin number to unlock her phone and in giving them permission to examine it, all such evidence should be excluded.

• 4 In addition, the judge found a problem with the continuity of the chain of custody of the electronic file whereon the analysis pertinent to the phone and computer devices was excluded: evidence that could not be more central to the prosecution case.

• 5 Finally, the judge reasoned that the judge issuing the warrant should have been warned that the suburban address at which Edmond O'Neill and Anne-Marie Hassett resided was a dwelling, within the meaning of Article 40.5 of the Constitution and that this constituted further proof of “the mindset throughout the process”.

4 This is how the trial judge put his reasoning, numbers added where the sequence stopped to assist analysis, as to the main basis for excluding the bulk of the evidence:

The Court has carried out a thorough analysis of all the evidence in this case. It has carefully considered all the legal submissions and the vast amount of supporting caselaw that has been opened to it. In analysing the very thorough legal arguments and propositions, the Court has posited a number of questions to itself insofar as the section 10 warrants are concerned in respect of [suburban address] and Roxboro Road Garda Station. These are the warrants that were issued on the 14th of May 2019. The questions based on the evidence adduced and the legal submissions and the caselaw opened:

1. Do I believe that the constitutional rights and protections of Eamon O'Neill and Anne-Marie Hassett are engaged? I do.

2. Do I believe that their constitutional rights and protections were breached? I do.

3. Do I believe that the gardaí displayed a lack of candour in the preparation of the informations seeking the issue of the warrants signed on the 14th of May 2019? I do.

4. Do I believe it was deliberate? I do. In the light of the contents of the informations and in the light of the contents of the briefing document which was discovered at a very late stage, I do.

5. Do I believe that the informations put before District Judge [Name] contained a serious deficit of material facts? I do.

6. Do I believe that there was a conscious and deliberate decision to exclude any mention of Anne-Marie Hassett in the informations? I do.

7. Do I believe that Anne-Marie Hassett was unlawfully detained? I do.

8. Do I believe that Anne-Marie Hassett was unlawfully questioned about specific matters regarding a phone call from her phone made on the 23rd of January 2019 and also about the movements of her husband [at that time domestic-partner, in fact] on the nights of the 11th, 12th and 13th of January? I do.

9. Do I believe that the data information extracted from Eamon O'Neill's mobile phone and Anne-Marie Hassett's mobile phone was unlawful in the context of the section 10 warrants? I do.

10. Do I believe that this was a deliberate action on the part of the gardaí in the light of the evidence adduced in this particular case? I do.

11. Do I believe that the search warrants and all that flowed from them should be excluded in all the circumstances? Yes, I do.

5 The point of an appeal under s 7 of the 2021 Act is that an erroneous exclusion of evidence can be reversed, provided error is demonstrated and that it is ostensibly reliable and significant evidence which, on its own, or in conjunction with the rest of the testimony, might reasonably assert the guilt of the accused. Since the context here is the simple process of a judge approving the issuing of a search warrant on the basis that the judicial mind is satisfied with the reasons for suspicion, put before him or her, that evidence is to be found at a particular place, it is important to quote s 10 of the Criminal Justice Act (Miscellaneous Provisions) Act 1997. In doing so, and having regard to (1) and (2) above, the reason for the interposition of a judge in searches, at least since Damache v DPP [2012] IESC 11, [2012] 2 IR 266, and in arresting people, keeping them in place for a search or restricting their movements, and intruding on a dwelling with the concomitant invasion of privacy, is because constitutional rights are engaged. Section 10 provides:

(1) A judge of the District Court, on hearing evidence on oath given by a member not below the rank of inspector, may, if he or she is satisfied that there are reasonable grounds for suspecting that evidence of, or relating to the commission of—

(a) an indictable offence involving the death of or serious bodily injury to any person,

(b) an offence of false imprisonment,

(c) an offence of rape, or

(d) an offence under an enactment set out in the First Schedule to this Act,

is to be found in any place, issue a warrant for the search of that place and any persons found at that place.

(2) A warrant under this section shall be expressed to and shall operate to authorise a named member, accompanied by any other member, to enter, within one week of the date of issuing of the warrant (if necessary by the use of reasonable force), the place named on the warrant, and to search it and any persons found at that place and seize anything found at that place, or anything found in the possession of a person present at that place at the time of the search, which the said member reasonably believes to be evidence of or relating to an offence referred to in subsection (1).

(3) A member acting under the authority of a warrant under this section may—

(a) require any person present at the place where the search is carried out to give to the member his or her name and address, and

(b) arrest otherwise than on foot of a warrant any person—

(i) who obstructs or attempts to obstruct that member in the carrying out of his or her duties,

(ii) who fails to comply with a requirement under paragraph (a), or

(iii) who gives a name or address which the member has reasonable cause for believing is false or misleading.

(4) A person who obstructs or attempts to obstruct a member acting under the authority of a warrant under this section, who fails to comply with a requirement under paragraph (a) of subsection (3) or who gives a false name or address to a member shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500, or to imprisonment for a period not exceeding 6 months, or to both.

(5) The power to issue a warrant under this section is in addition to and not in substitution for any...