DPP v O'Donnell

• Jurisdiction: Ireland
• Judgment Date: 28 February 1995
• Date: 28 February 1995
• Docket Number: [C.C.A. No. 70 of 1993]
• Court: Court of Criminal Appeal

The People (Director of Public Prosecutions) v. O'Donnell

The People (Director of Public Prosecutions)

and

Christopher O'Donnell

[C.C.A. No. 70 of 1993]

Court of Criminal Appeal

Criminal law - Evidence - Admissibility of evidence obtained by search - Legality of search - Power of search - Whether evidence obtained unconstitutionally - Necessity of informing suspect of legal justification for search - Possession of explosive substances - Offences Against the State Act, 1939 (No. 13), s. 30.

Section 30, sub-s. 1 of the Offences Against the State Act, 1939, provides inter alia as follows:—

"A member of the Garda Síochána (if he is not in uniform on production of his identification card if demanded) may without warrant stop, search, interrogate, and arrest any person, or do any one or more of these things in respect of any person, whom he suspects of having committed or being about to commit or being or having been concerned in the commission of an offence under any section or sub-section of this Act or an offence which is for the time being a scheduled offence for the purposes of Part V of this Act . . ."

The applicant was travelling in a van which was stopped by the gardaí who recognised him and suspected him of being a member of the I.R.A. At the request of one of the gardaí the applicant stepped out of the van and was informed that the garda proposed to search him under s. 30 of the Offences Against the State Act, 1939. The garda removed a walkie-talkie radio from the right-hand side pocket of the applicant's jacket. When the garda attempted to examine the left-hand side pocket, the applicant resisted. The garda cautioned the applicant and informed him that he was arresting him under s. 30 of the Offences Against the State Act, 1939, on suspicion of membership of an unlawful organisation and that he wished to examine the left-hand pocket and would use force if necessary. The applicant then handed the garda the contents of the left-hand pocket, a parcel which was found to contain explosive substances.

The applicant was convicted on the 2nd July, 1993, before the Special Criminal Court of possession of explosives. Leave to appeal was refused. The applicant applied to the Court of Criminal Appeal for leave to appeal his conviction on the ground that the court of trial erred in law in holding that the search of the applicant was lawful and constitutional.

Counsel for the applicant submitted that where a garda proposes to search a person whom he suspects has already committed an offence under the Act of 1939, he must inform that person of his intention to search him pursuant to s. 30 of that Act, and of the offence he believes him to have committed. It was argued that although the garda informed the applicant that he suspected him of membership of an illegal organisation before he searched the left-hand side pocket, his failure to do so before he searched the right-hand pocket tainted everything which followed with illegality.

Held by the Court of Criminal Appeal (O'Flaherty, O'Hanlon and Geoghegan JJ.), in refusing to grant leave to appeal and in affirming the conviction, 1, that evidence following a deliberate and conscious breach of a person's constitutional rights must only be excluded if it has been obtained as a result of that breach and a causative link between the breach and the obtaining of the evidence is established.

The People (Director of Public Prosecutions) v. Healy [1990] 2 I.R. 73; The People (Director of Public Prosecutions) v. Shaw[1982] I.R. 1 and Walsh v. Ó Buachalla ó buachalla[1991] 1 I.R. 56 approved.

2. That a compulsory search is unlawful unless it can be justified under powers vested by law in the person exercising the power of search, and the person to be searched is informed of the legal basis relied on as justifying the search before it takes place.

Christie v. Leachinsky [1947] A.C. 573; The People (Attorney General) v. White[1947] I.R. 247, The People (Director of Public Prosecutions) v. Gaffney[1987] I.R. 173; The People (Director of Public Prosecutions) v. Quilligan and O'Reilly[1986] I.R. 495; The People (Director of Public Prosecutions) v. Rooney[1992] 2 I.R. 7 and The State (Trimbole) v. The Governor of Mountjoy Prison[1985] I.R. 550 approved.

Per curiam: That it is only necessary to invoke legal powers of search when the subject of the search refuses to co-operate with the requesting authorities.

3. That the search of the applicant's left-hand pocket was lawful. The garda had complied with the legal obligations regulating a search pursuant to s. 30 of the Act of 1939. Even if it were conceded that the search of the right-hand pocket infringed the constitutional rights of the applicant, there was no causal link between that search and the later search of the pocket containing the explosives.

4. That the Special Criminal Court had been correct in holding discovery of the explosive substances on the person of the applicant was not tainted with illegality so as to render the evidence inadmissible.

Cases mentioned in this report:—

Christie v. Leachinsky [1947] A.C. 573; [1947] 1 All E.R. 567 (H.L.); [1946] K.B. 124 (C.A.).

Morris v. Beardmore [1981] A.C. 446; [1980] W.L.R. 283; [1980] 2 All E.R. 753.

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