DPP v Byrne

• Jurisdiction: Ireland
• Judge: Hardiman J.
• Judgment Date: 30 October 2003
• Neutral Citation: 2003 WJSC-CCA 3015
• Date: 30 October 2003
• Docket Number: [C.C.A. No. 26 of 2002]
• Court: Court of Criminal Appeal

2003 WJSC-CCA 3015

THE COURT OF CRIMINAL APPEAL

Hardiman J.

O'Donovan J.

Herbert J.

26/02

DPP v. BYRNE

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

v.

PETER BYRNE

Applicant

Citations:

MISUSE OF DRUGS ACT 1977 S15(A)

MISUSE OF DRUGS ACT 1977 S26

CRIMINAL JUSTICE (TRAFFICKING) ACT 1996 S8

CRIMINAL JUSTICE (TRAFFICKING) ACT 1996 S8(2)

BYRNE V GREY 1988 IR 31

CRIMINAL PROCEDURE ACT 1993 S3(1)(A)

CRIMINAL JUSTICE ACT 1999

DPP V HEFFERNAN UNREP CCA 10.10.2002 (EX TEMPORE)

Synopsis:

- [2003] 4 IR 423

1 JUDGMENT of the Court (ex tempore) delivered on the30th day of October, 2003 by Hardiman J.

2 This is the applicant's application for leave to appeal against conviction. The applicant was convicted of a variety of offences involving drugs, (including an offence contrary to s. 15A of the Misuse of Drugs Act, 1977as inserted by the Criminal Justice Act, 1999) in respect of his possession of drugs at an address in Galway on the 20 ^th February, 2001. On this application the sole ground urged related to the alleged invalidity of the search warrant or alternatively the failure of the prosecution to demonstrate that it was a valid warrant. The warrant in question was issued pursuant to s.26 of the Misuse of Drugs Act, 1977. It was issued not by a District Judge or by a Peace Commissioner but a Chief Superintendent of An Garda Siochana, Chief Superintendent Monaghan. He did this in pursuance of the power conferred on him by s.8 of the Criminal Justice (Drug Trafficking) Act, 1996, which in part provides as follows:-

"(2) A member of the Garda Síochána not below the rank of superintendent shall not issue a search warrant under the said section 26 unless he or she is satisfied—"

(a) that the warrant is necessary for the proper investigation of a drug trafficking offence, and

(b) that circumstances of urgency giving rise to the need for the immediate issue of the search warrant would render it impracticable to apply to a judge of the District Court or a Peace Commissioner under the said section 26 for the issue of the warrant".

3 The Court will say immediately that the point argued by Mr. Padraig O'Higgins for the applicant is a substantial and important one. It is at the same time (and this is not inconsistent with what I have just said) also true to say that it is a pure technicality because it is perfectly clear that the jury, the facts having been opened to them, including the facts of the search on foot of the warrant, were satisfied that the defendant was indeed in possession of a quantity of drugs which he had brought from a car into a house. Nevertheless we are satisfied that the point is a substantial one. The case of Byrne v. Grey [1988] Irish Reports p. 31 has gone into the constitutional importance of proper procedures in the matter of searches, particular searches of private dwellings, in a way which makes it unnecessary for me to do more than refer to the report. One of the points advanced in that case was that it was unconstitutional in itself to have a warrant issued by a peace commissioner who is a non-judicial personage rather than by a judge. I pause to note how the law has moved on; it is now possible in the circumstances I have indicated to have it issued by a Superintendent. The constitutionality of this is not challenged. But that does not mean, we believe, that it is a matter of indifference as to which of those three qualified persons, or classes of qualified persons, issue the warrant. In dealing with the question of the constitutionality of the peace commissioner's power Mr. Justice Hamilton, as President of the High Court, quoted with approval a decision of Mr. Justice Barr on the peace commissioner's power. He said:-

"I am satisfied that it is in the interest of the common good that there should be a simple procedure readily available to the police whereby in appropriate cases they may obtain such warrants relating to premises, including the dwellings of citizens, so as to facilitate them in the investigation of larceny and other allied offences. The procedure laid down in s. 42, sub-s. 1 of the Act of 1916 contains important elements for the protection of the public including all those who might be found on the premises to be searched. The investigating police officer must swear an information that he has reasonable cause for suspecting the stolen property to be found at the premises to be searched and he must satisfy a peace commissioner, who is an independent person unconnected with criminal investigation per se, that it is right and proper to issue the warrant".

4 From that passage we can see two things. First, it stresses a particular way of supporting the constitutionality of the peace commissioner's power - that he is an independent person unconnected with the criminal investigation as such who must himself be satisfied of the necessary matters by the information on oath of another person. It is therefore clear, secondly that the power of a Garda Chief Superintendent or Superintendent to issue a warrant is by way of further exception and is an emergency provision, and cannot be regarded as anything other than an emergency provision.

5 We wish to make a number of observations on the facts of the present case. There was a very elaborate professionally devised surveillance operation in progress in at least two locations, that is to say, in the immediate vicinity of the house in the Galway...