DPP (Garda O'Higgins) v Farrell

• Jurisdiction: Ireland
• Court: High Court
• Judge: MS. JUSTICE MAUREEN H. CLARK,
• Judgment Date: 16 July 2009
• Neutral Citation: [2009] IEHC 368
• Date: 16 July 2009
• Docket Number: [2007 No. 865 SS.]

[2009] IEHC 368

THE HIGH COURT

[No. 865 SS/2007]

DPP (Garda O'Higgins) v Farrell

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857, AS EXTENDED BY SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA JOHN P. HIGGINS)

PROSECUTOR

AND

BRIAN FARRELL

ACCUSED

SUMMARY JURISDICTION ACT 1857 S2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51

FIREARMS & OFFENSIVE WEAPONS ACT 1990 S9(1)

MISUSE OF DRUGS ACT 1977 S23

DPP (STRATFORD) v FAGAN 1994 3 IR 265 1994 2 ILRM 349 1994/13/4063

DPP v ROONEY 1992 2 IR 7 1993 ILRM 61 1992/6/1931

CHRISTIE & ANOR v LEACHINSKY 1947 AC 573 1947 1 AER 567

AG, PEOPLE v WHITE 1947 IR 247

SIMPLE IMPORTS LTD & SEVEN IMPORTS LTD v REVENUE CMRS & ORS 2000 2 IR 243 1999/23/7430

DPP (WALSH) v CASH 2008 1 ILRM 443 2007/17/3461 2007 IEHC 108

MISUSE OF DRUGS ACT 1984 S12

MISUSE OF DRUGS ACT 1977 S23(2)

DPP v FINNEGAN UNREP CLARK 5.11.2008 2008/18/3786 2008 IEHC 347

RICE v CONNOLLY 1966 2 QB 414 1966 3 WLR 17 1966 2 AER 649

HAYES v MIN FOR FINANCE 2007 3 IR 190 2007/28/5805 2007 IESC 8

DPP (SHEEHAN) v GALLIGAN UNREP LAFFOY 2.11.1995 1999/7/1721

BATES v JUDGE BRADY 2003 4 IR 111 2003/5/1024

CRIMINAL LAW

Search

Police - Powers - Common law powers to search - Statutory powers to search - Reasons for search - Reasonable cause to suspect - Basis for suspicion - Admissibility of evidence - No evidence given of consent to search - Whether general knowledge not specific to accused could provide basis for reasonable cause to suspect - Whether obligation to inform accused of reason for search - Whether necessary to inform accused of statutory basis of power of search - DPP (Stratford) v Fagan [1994] 3 IR 265, Hayes v Minister for Finance [2007] IESC 8, [2007] 3 IR 190, DPP v Finnegan [2008] IEHC 347, [2009] 1 IR 48 considered; Bates v Brady [2003] 4 IR 111 and DPP (Sheehan) v Galligan (Unrep, Laffoy J, 2/11/1995) applied - Misuse of Drugs Act 1977 (No 12), s 23 - Courts (Supplemental Provisions) Act 1961 (No 39) - Firearms and Offensive Weapons Act, 1990 (No 12), s 9(1) - Prosecutor's appeal by case stated allowed (2007/865SS - Clark J - 16/7/2009) [2009] IEHC 368

DPP (Higgins) v Farrell

WORDS AND PHRASES

Reasonable cause to suspect

Misuse of Drugs Act 1977 (No 12), s 23 (2007/865SS - Clark J - 16/7/2009) [2009] IEHC 368

DPP (Higgins) v Farrell

Facts The opinion of the High Court was sought on appeal by way of case stated as to whether the District Court Judge was correct in law in finding that the search of the accused was lawful on the basis that the drugs problem cited by the Garda was referable to the accused and was sufficient to justify the search. The accused had been found guilty of possession of a knife following a search of a vehicle occupied by him. The prosecuting Garda gave evidence during the hearing that he stopped and searched the car under the Misuse of Drugs Act because there was a problem with drugs in that particular area of Dublin. It was submitted on behalf of the accused that the search was unlawful as there was no specific suspicion held by the Garda that the accused was in possession of drugs and further that the accused was never informed of the reason for the search or the powers grounding such search.

Held by Clark J. in holding that the search was unlawful: That the Garda was empowered pursuant to common law to stop without specific suspicion any car in pursuit of the detection and prevention of crime. However, he did not have the right to search the accused's car without permission in these circumstances. The fact that the Garda decided the search the car pursuant to s. 23 of the Misuse of Drugs Act meant that he had to have reasonable cause for suspecting that the accused was in possession of a controlled drug. That reasonable cause did not exist in this case and consequently the search was unlawful. Furthermore, the accused was entitled to be informed of the reason for the search and there was no evidence that he was so informed in this case. However, the Garda was not obliged to quote the specific source grounding the power of search.

Reporter: L.O'S.

1 MS. JUSTICE MAUREEN H. CLARK, delivered on the 16th day of July, 2009.

2 1. This is an appeal by way of case stated pursuant to s. 2 of the Summary Jurisdiction Act 1857 as extended by s. 51 of the Courts (Supplemental Provisions) Act 1961 from a decision of Judge John Coughlan of the Dublin Metropolitan District convicting Brian Farrell on a charge that: on the 20 ^th February, 2006 at Neilstown Road, Clondalkin, Dublin, 22, he had with him a knife which had a blade or which was sharply pointed contrary to s. 9(1) of the Firearms and Offensive Weapons Act, 1990.

3 2. The accused/appellant was unhappy with this decision and believes that his conviction was wrong in law. The learned District Judge found certain facts as proved, admitted or agreed as follows:

"On the 20 ^th February, 2006, Garda Higgins was on patrol duty in a marked patrol car in and around Neilstown Road, Clondalkin, Dublin, 22. While on patrol he observed the car in which the accused was travelling. Garda Higgins gave evidence that there is a drugs problem in the Neilstown area, and for this reason he decided to stop and search the car under the Misuse of Drugs Act. In cross-examination, counsel for the accused did not question the Guard further in relation to the invocation or exercise of the power of the search.

After signalling for the car to stop, which it did, Garda Higgins spoke to the accused man who was one of the two occupants in the car. He demanded his name and address pursuant to the powers contained in the Road Traffic Act, and the accused gave his name and address as Gorey, Co. Wexford. Garda Higgins asked him what he was doing in Dublin if he had an address in Wexford. There was no evidence given during the hearing of the case concerning Mr. Farrell's response to this question, if indeed one was given. In cross-examination, it was the evidence of the Garda that nothing else was said between the respective parties prior to the search, other than this query in relation to the name and address. There was no evidence to suggest that the accused at any point objected to the searching of the car.

Garda Higgins proceeded to search the car and found therein a knife, which was produced in evidence before the Court. Having administered the legal caution, the accused was asked his reason for possessing the knife, to which he replied that he had brought it back from holidays. He followed this by saying that he used it to cut twine on the Christmas tree. In cross-examination the Garda stated that he did not believe this explanation in relation to the Christmas tree as it had been the 20 ^th February when the accused had been stopped.

At the conclusion of the State's case, in which Garda Higgins was the only witness, counsel for the accused applied for a direction to dismiss the case on two separate grounds: the first being that the reason given by the Garda for searching the car under Misuse of Drugs Act - that there is a drugs problem in Neilstown - was not a suspicion specific to the accused and was not such as would grant a lawful search under the Misuse of Drugs Act, which he offered to open to the Court.

The second ground was that there was no evidence that the accused had ever been informed of the reasons justifying or the powers grounding the search and counsel again offered to open authority in support of this proposition - however, I did not consider it necessary to hear anything further in this regard.

Having considered these arguments I declined to dismiss the case. I found and ruled having been asked to do so, that the drugs problem cited by the Garda was referable to the accused and was sufficient to justify the search (My emphasis)

The defence did not go into evidence and the accused man was convicted as charged and sentenced to two months imprisonment.

The opinion of the High Court is sought on the question as to whether I was correct in law in so doing, having regard to the suspicion cited by the prosecuting Garda, as well as the fact that the power of search was not recited to the accused on the day in question."

4 3. The appeal by way of case stated is dated the 17 ^th December, 2007.

THE APPELLANT'S SUBMISSIONS

5 4. Mr. Paul O'Higgins S.C. appeared on behalf of the appellant. He argued that the issue before the Court involved an extremely net question being, did Garda John P. Higgins have the power of search on the basis of his knowledge that there was a drugs problem in the Neilstown area of Clondalkin and, if such a power arises from this knowledge, was he obliged to invoke his powers under s. 23 of the Misuse of Drugs Act 1977, as amended, before conducting a search of the car?

6 5. It was argued that the statutory pre-condition that a member of the Garda Síochána must have reasonable cause to suspect that a person is in possession of a controlled drug has to be met before any search can be carried out. Mr O'Higgins submitted that in this case there is no evidence of any kind from which it could be inferred or held as a fact that Garda Higgins had any suspicion or, with more force, any reasonable cause to suspect that Mr. Farrell was in possession of a controlled drug before be searched the car.

7 6. The appellant accepts that a Garda is entitled to stop drivers of cars of whom he has no suspicion provided that he acts bona fide and does not do so in a capricious or arbitrary manner. He accepts that D.P.P. (Stratford) v. Fagan [1994] 3 I.R. 265, a decision of the Supreme Court, settles the issue that under the Road Traffic Acts there is an obligation on a driver to stop when requested to do so by a member of the Garda Síochána....