DPP v Kenny
1990 WJSC-CCA 417
THE COURT OF CRIMINAL APPEAL
AG, PEOPLE V O'BRIEN
PEOPLE V MADDEN
PEOPLE V FARRELL
PEOPLE V O'LOUGHLIN
MISUSE OF DRUGS ACT 1984 S13
OFFENCES AGAINST THE STATE ACT 1939 S30
CRIMINAL JUSTICE ACT 1951 S15
CRIMINAL JUSTICE ACT 1984 S26
MISUSE OF DRUGS ACT 1977 S26
R V IRC Ex Parte ROSSMINISTER
BYRNE V GREY
QUINN, STATE V RYAN
PETTY SESSIONS (IRL) ACT 1851 S29
PEOPLE V WALSH
PEOPLE V SHAW
DPP, PEOPLE V QUILLIGAN
UNITED STATES V LEON ET AL 468 US 897
US V CALANDRA 414 US 338
US V PAYNER 447 US 727
STONE V POWELL 428 US 465
COURTS OF JUSTICE ACT 1928 S5(1)(a)
ILLINOIS V GATES 462 US 213
Privacy - Dwelling - Forcible entry - Prohibition - Entry pursuant to warrant - Warrant invalid - Evidence procured after entry - Admissibility at trial of occupant of dwelling - (44/87 - C.C.A. - 30/11/89) -
|The People v. Kenny|
Procurement - Means - Illegality - Trial judge - Discretion - Forcible entry into dwelling - Entry effected pursuant to warrant of peace commissioner - Customary procedure adopted - Procedure and warrant subsequently ruled invalid - Absence of deliberate and conscious violation of citizen's rights under Constitution - Evidence procured as result of entry - Evidence properly admitted at trial of citizen - Courts of Justice Act, 1928, s. 5 - Misuse of Drugs Act, 1977, s. 26 - Constitution of Ireland, 1937, Article 40 - (44/87 - C.C.A. - 30/11/89)1990 2 IR 110
|The People v. Kenny|
Judgment of the Court delivered the 30th day of November 1989 by O'Hanlon J.
The Court has already ruled in its judgment delivered the 15th June, 1989, that the learned trial Judge erred in law in concluding that the search warrant issued by the Peace Commissioner to Garda Conway was a valid warrant. It follows that the forcible entry by the Garda of the flat at Belgrave Place, Rathmines, Dublin, where the Appellant resided was unlawful. The Court left over for further consideration the question whether these factors rendered inadmissible the evidence obtained as a result of that unlawful entry, and has had the benefit of further legal argument by Counsel on this issue.
The determination of the question involves a consideration of the decision of the Supreme Court in the case of The People (Attorney General) .v. O'Brien, (1965) IR 142, and a number of later decisions of the Supreme Court and the Court of Criminal Appeal.
In O'Brien's Case the Supreme Court concluded that evidence obtained by means of an invalid search warrant should not be excluded in the circumstances of that particular case. Through inadvertence, a search warrant referring to an incorrect address had been issued and it was not clear whether the garda sergeant noticed the mistake before searching the premises.
The following passages appear in the judgment of Kingsmill Moore J. (with whose judgment Lavery and Budd JJ. agreed):
"The mistake was a pure oversight and it has not been shown that the oversight was noticed by anyone before the premises were searched. I can find no evidence of deliberate treachery, imposition, deceit or illegality; no policy to disregard the provisions of the Constitution or to conduct searches without a warrant; nothing except the existence of an unintentional and accidental illegality to set against the public interest of having crime detected and punished.
Mr. Justice Walsh, in the judgment which he is about to deliver, is of opinion that where evidence has been obtained by the State or its agents as a result of a deliberate and conscious violation of the constitutional (as opposed to the common law) rights of an accused person, it should be excluded save where there are “extraordinary excusing circumstances”, and mentions as such circumstances the need to prevent an imminent destruction of vital evidence or rescue of a person in peril, and the seizure of evidence obtained in the course of and incidental to a lawful arrest even though the premises on which the arrest is made have been entered without a search warrant. I agree that where there has been such a deliberate and conscious violation of constitutional rights by the State or its agents, evidence obtained by such violation should in general be excluded, and I agree that there may be certain “extraordinary excusing circumstances” which may warrant its admission … The facts of individual cases vary so widely that any hard and fast rules of a general nature seem to me dangerous and I would again leave the exclusion or non-exclusion to the discretion of the trial judge … This case is not one of deliberate and conscious violation, but of a purely accidental and unintentional infringement of the Constitution. In such cases, as Mr. Justice Walsh indicates, the evidence normally should not be excluded."
Since judgment was given in O'Brien's Case, the courts have had to consider on a number of occasions what type of conduct may be regarded as deliberate and conscious violation of the constitutional rights of an accused person, and what type of conduct may fairly be regarded as falling outside that category.
It is clear from the decisions in The People .v. Madden,, The People .v. Farrell,, The People .v. O'Loughlin,, and The People .v. Walsh,, that knowledge of the common law and statute law, and of the constitutional guarantees, must — generally speaking — be imputed to the law enforcement agencies, and that if they are breached in a manner which infringes the constitutional rights of an accused person, it may be regarded as a deliberate and conscious violation without regard to the actual state of knowledge or bona fides of the garda officer or other person committing such violation.
The cases referred to were clear-cut. In Madden's Case the Offences Against the State Acts permitted the detention of a person under Section 30 of the Act of 1939 for a maximum period of 48 hours, whereas Madden was detained beyond that period while a statement which was being taken from him was being completed. No attempt was made in the course of the trial to justify this course, and the gardai who gave evidence were aware of the 48-hour time limit. In Farrell's Case, no evidence was given at the trial of the giving of the necessary authority to extend the applicant's detention up to 48 hours under the same statutory provisions and therefore the prosecution failed to establish that there had been no deliberate and conscious violation of the applicant's constitutional rights. In Walsh's Case the Supreme Court held that the failure to bring the appellant before a court at the first reasonable opportunity after his arrest (as then required by the express provisions of the Criminal Justice Act, 1951, Sec. 15, and as now required by the provisions of the new Section substituted for Sec. 15 by the Criminal Justice Act, 1984, Sec. 26) resulted in his continued detention being unlawful and in breach of his constitutional rights, but in that case the impugned fingerprint evidence was declared admissible because it had been obtained at a time when his detention had not yet become unlawful. A similar decision was given by the Court of Criminal Appeal in O'Loughlin's Case.
These were all cases where the law was clearly—established and no justification was put forward in evidence by the prosecution witnesses for their failure to observe the rule of law in their dealings with the accused person.
Different considerations may arise where the law has been generally interpreted and applied in a particular way, without challenge, over a substantial period of time and then, by reason of judicial interpretation, what was formerly regarded as being in accordance with law is found to have been based on an incorrect interpretation of the law and, accordingly, tainted with illegality.
The present case may be taken as an example of that situation. It is common case that the procedure adopted by the garda officer for obtaining a search warrant was in accordance with standard procedure followed in availing of the provisions of sec. 26 of the Misuse of Drugs Act, 1977. The gardai in applying for search warrants under that section, and District Justices and Peace Commissioners in granting them, had proceeded on the basis that it was a sufficient compliance with the requirements of the section if the application was based on information on oath of a member of the Garda Siochana, deposing that he or she had reasonable ground for suspecting the existence of the matters referred to in the section. Ultimately, however, this procedure and a similar procedure followed in England in relation to analogous legislative provisions in force in that jurisdiction, were challenged in the courts and found to be invalid.
The relevant decision in relation to the English legislation is Reg. .v. IRC, Ex. p. Rossminister,, which was followed by the President of the High Court in considering the provisions of the Misuse of Drugs Act, 1977, as amended by sec. 13 of the Misuse of Drugs Act, 1984, in the case of Byrne .v. Grey,. These decisions have already...
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