DPP v Morgan
| Jurisdiction | Ireland |
| Judge | Finnegan J. |
| Judgment Date | 21 December 2011 |
| Neutral Citation | [2011] IECCA 98 |
| Court | Court of Criminal Appeal |
| Date | 21 December 2011 |
[2011] IECCA 98
COURT OF CRIMINAL APPEAL
Finnegan J.
Hanna J.
McGovern J.
BETWEEN
and
COURTS OF JUSTICE ACT 1924 S29
CRIMINAL LAW (SEXUAL OFFENCES) ACT 1993 S9
REDKNAPP & ANOR v COMMISSIONER OF POLICE FOR CITY OF LONDON & ANOR 2009 1 AER 229
POLICE & CRIMINAL EVIDENCE ACT 1984 (UK) S8(3)
WOOD v NORTH HAVEN MAGISTRATES COURT 2009
DAVIES v DPP 1954 AC 378
AG, PEOPLE v CARNEY & MULCAHY 1955 IR 324
AG v LINEHAN 1929 IR 19
CRIMINAL LAW
Search warrants
Application for warrant - Failure to keep record - Fair trial - Whether search warrant invalid due to failure to take notes of application for warrants - Whether search warrant invalid due to lack of record of oral evidence given or questions asked - Whether failure to make or keep record of application breached right to fair trial - Whether the failure to keep a record of an application for search warrant rendered trial unfair - Whether English decisions relied upon persuasive - Whether failure to record evidence given and questions asked fatal to warrant - When accomplice warnings appropriate - Definition of accomplice - Redknapp v Commissioner of Police [2009] 1 All ER 229; R v North Haven Magistrates Court [2009] EWHC 3614; Davies v DPP [1954] AC 378; People (AG) v Carney [1955] IR 324; AG v Linehan [1929] IR 19 - Leave to appeal - Point of law of exceptional public importance - Whether Court could certify question of law which was not argued at the application for leave to appeal - Courts of Justice Act 1924 (No 10), s 29 - Application refused (101/2008 - CCA - 21/12/2011) [2011] IECCA 98
People (DPP) v Morgan
Facts: The applicant had been found guilty of the offence of managing a brothel contrary to s. 11A Criminal Law (Sexual Offences) Act 1993. It was established in the course of evidence at trial that no notes were taken of the application by the applicants for the several search warrants in issue on the appeal. It was submitted by the applicant that the failure of the prosecution to make or keep any record amounted to a failure to vindicate the fair trial rights of the applicant by hampering the test of the validity of the warrant. The applicant sought to certify to the Supreme Court as a point of law of exceptional public importance pursuant to s. 29 Courts of Justice Act 1924, as amended, the issue of whether the failure to keep a note of an application for a search warrant was a breach of fair procedures rendering the trial unfair.
Held by the Court of Criminal Appeal per Finnegan J. (Hanna, McGovern JJ.) that the Court refused to certify either of the questions raised to be appealed to the Supreme Court. The Court would not save in the most exceptional circumstances certify a point of law which was not argued at the application for leave to appeal. The point was not fully argued due to the default of the applicant which rendered it inappropriate to certify the questions.
Reporter: E.F.
Judgment delivered on the 21st day of December 2011 by Finnegan J.
The applicant was found guilty of the following offences before the Circuit Criminal Court Dublin:-
Brothel managing contrary to section 11A of the Criminal Law (Sexual Offences) Act 1993
Martin Morgan, between the 23 rd day of September 2005 and the 10 th day of October 2005, both dates inclusive, within the County of the City of Dublin, acted or assisted in the management of a brothel.
Organising prostitution, contrary to section 9 of the Criminal Law (Sexual Offences) Act 1993.
Martin Morgan between the 22 nd day of August 2005 and the 10 th day of October 2005, both dates, inclusive, within the County of the City of Dublin, organised prostitution by controlling the activities of more than one prostitute for that purpose.
In the judgment delivered on the 5 th day of July 2011 this court dealt with the grounds of appeal insofar as relevant to this application under two headings, firstly the search warrant and secondly accomplice warning.
It was established in the course of evidence at trial that no notes were taken of the application by the applicants for the several search warrants in issue on the appeal. No record was kept of oral evidence given or of any questions asked by the District judge or of the answers given. On behalf of the applicant it was submitted that the failure by the prosecution to make or keep any record of the applications amounted to a failure to vindicate the fair trial rights of the applicant in that the applicant was thereby hampered in his ability to test the scrutiny to which the District judge subjected the applications. Central to the applicant's submissions at trial and on the application to this court for leave to appeal was the decision of the Queens Bench Division of England and Wales in Redknapp and Another v Commissioner of Police for City of London & Another [2009] 1 All E.R. 229 which was relied upon in supplemental written submissions filed on the application to this court for leave to appeal. The submission was that any oral evidence given on the application for a warrant and of any questions asked by the District judge and the answers thereto should be recorded in a note. In the course of the judgment in that case Latham L.J. said:-
"All the material necessary to justify the grant of a warrant should be contained in the information provided on the form. If the Magistrate or judge in the case of an application under section 9 (of the Police and Criminal Evidence Act 1984) does require any further information in order to satisfy himself that the warrant is justified, a note should be made of the additional information so that there is a proper record of the full basis upon which the warrant has been granted."
On the application for leave to appeal it was submitted that as there was no note of any additional evidence given on the application for the search warrant and of any questions asked by the District judge and the answers given to the same there is a real risk of an unfair trial in that the applicant was hampered in testing the validity for the warrant.
Redknapp is a decision of the Queens Bench Divisional Court and concerns an application for judicial review to the Administrate Court. The case is one of a considerable number of similar judicial review applications arising out of alleged noncompliance the provisions of the Police and Criminal Evidence Act 1984 (PACE). The requirements of PACE have been described as " numerous and onerous" and " detailed and complex" and in...
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The Director of Public Prosecutions v Martin Morgan
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