DPP v Windle

JurisdictionIreland
JudgeMr Justice McCracken
Judgment Date01 January 2000
Neutral Citation[1999] IEHC 18
CourtHigh Court
Docket Number[1999 No. 34JR]
Date01 January 2000

[1999] IEHC 18

THE HIGH COURT

Record No.34JR/1999
DPP v. WINDLE
JUDICIAL REVIEW

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS
APPLICANT

AND

JUDGE DESMOND WINDLE AND GRAHAM WALSH
RESPONDENTS

Citations:

CRIMINAL PROCEDURE ACT 1967 S6

MISUSE OF DRUGS ACT 1977 S28

CRIMINAL PROCEDURE ACT 1967 S7

CRIMINAL PROCEDURE ACT 1967 S5(1)

CRIMINAL PROCEDURE ACT 1967 S7(1)

CRIMINAL PROCEDURE ACT 1967 S8(1)

DPP, PEOPLE V KENNY 1990 ILRM 569

CONSTITUTION ART 40.3.1

CRIMINAL PROCEDURE ACT 1967 S11

DPP V OWENS 1999 2 ILRM 421

R V NORFOLK QUARTER SESSIONS EX-PARTE BRUNSON 1953 1 QBD 346

R V GEE; RV BIBBY; R V DUNSCOMBE 1936 2 KB 442

ADMINISTRATION OF JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1933 S2(1)

INDICTABLE OFFENCES ACT 1848

RSC O.84 r21

CRIMINAL PROCEDURE ACT 1967 S5(2)

CRIMINAL PROCEDURE ACT 1967 S7(2)

Synopsis

Criminal

Criminal; practice and procedure; preliminary examination; first named respondent ruled search warrant invalid and refused to send second named respondent forward for trial; applicant seeking order of certiorari; whether judge has power or jurisdiction to make ruling; whether respondents prejudiced by delay in issuing proceedings.

Held: Once in existence, the question of the validity of the search warrant is one for trial not preliminary investigation; order of respondent set aside

D.P.P. v. Judge Windle High Court: Mc Cracken J. 23/07/1999 - [1999] 4 IR 280 - [2000] 1 ILRM 75

The validity of a search warrant cannot be determined by a Judge conducting a preliminary examination. That is a matter for the Trial Judge to be determined by him on all the evidence before him. The application for certiorari was made at the end of the six month limit. However, the Court was not satisfied that there had been excessive delay in bringing these proceedings or that the delay had prejudiced the respondents. The High Court so held in granting the relief sought.

1

Mr Justice McCrackendelivered the 23rd day of July 1999.

2

The background to this case may be briefly stated. The second named Respondent was charged with certain offerences under the Misuse of Drugs Act 1977and was duly furnished with the documents required to be served on him pursuant to Section 6 of the Criminal Procedure Act 1967. These included a search warrant dated 22nd April 1997 which had been issued pursuant to Section 28 of the Misuse of Drugs Act 1977and was headed "District Court Area of Dublin Metropolitan District"s. It authorised a member of the Garda Siochana to enter and search certain premises and was signed "Margaret Gaffney, Peace Commissioner".

3

On the 28th of July 1998 in the Dublin Metropolitan District Court the matter came before the first named Respondent for the preliminary examination under Section 7 of the 1967 Act to take place. In the course of this hearing the first named Respondent raised the question of the validity of the search warrant, and asked that the parties argue the issue before him. He suggested that the search warrant was invalid because it did not state on theface of it that Margaret Gaffney was a Peace Commissioner for the area encompassing the premises authorised to be searched.

4

In the course of the argument that followed, the Solicitor for the Applicant submitted that the first named Respondent had no jurisdiction to determined that the validity or otherwise of the search warrant. The first named Respondent ultimately determined that the warrant was invalid, and refused to send the second named Respondent forward fortrial.

5

I would emphasise that these are judicial review proceedings, and I am not concerned with whether the learned District Judge was correct in law in the ruling which he made. I am concerned purely with whether he had the power or jurisdiction to make such a ruling-

6

Part II of the Criminal Procedure Act 1967deals with the preliminary examination of indictable in the District Court. The relevant sections are as follows:-

7

2 "(5)(1) Where an accused person is before the District Court charged with an indictable offence then, unless the case is being tried summarily or the accused pleads guilty, the Justice shall conduct a preliminary examination of the charge in accordance with the provisions of this part.

8

(2) References in any enactment to the premilinary investigation of an indictable offence shall be construed as references to the procedure set out in this Part".

9

Section 6 then sets out a list of the documents to be served on the accused, commonly known as the Book of Evidence, and provides that copies of these documents shall be furnished to the Court. The Act thencontinues:-

10

2 "7(1) The Justice shall consider the documents and exhibits, any deposition or statement taken in accordance with this section and any submissions that may be made by or on behalf of the Prosecutor or the Accused.

11

(2) The Prosecutor and the Accused shall each be entitled to give evidence on sworn deposition and also to require the attendance before the Justice of any person, whether included in the supplied list of witnesses or not, and to examine him by way of sworndeposition.

12

3 (8)(1) If the Justice is of opinion that there is a sufficient case to put the accused on trial for the offence with which he has been charged, he shall send him forward for trial".

13

There have been a number of cases dealing with the validity of search warrants, and in reaching his decision the first named Respondent considered that he had an obligation to protect the constitutional rights of the second named Respondent, and in support of this cited the decision of the Supreme Court in The People (Director...

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