Hanahoe v Hussey

• Jurisdiction: Ireland
• Judge: Mr. Justice Kinlen
• Judgment Date: 01 January 1998
• Neutral Citation: [1997] IEHC 173
• Court: High Court
• Docket Number: [1996 No. 307 J.R. and 1996 No. 9275P]
• Date: 01 January 1998

[1997] IEHC 173

THE HIGH COURT

No. 307 J.R./1996

HANAHOE v. D.J. HUSSEY

BETWEEN

ANTHONY T. HANAHOE MICHAEL E. HANAHOE AND TERENCE HANAHOE PARACTISING AS MICHAEL E. HANAHOE & CO. AND ANTHONY T. HANAHOE AND TERENCE HANAHOE

APPLICANTS

AND

DISTRICT JUDGE GILLIAN HUSSEY THE COMMISSIONER OF AN GARDA SIOCHANA IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Citations:

CRIMINAL JUSTICE ACT 1994 S57

CRIMINAL JUSTICE ACT 1994 (COMMENCEMENT) ORDER 1994 SI 324/1994

CRIMINAL JUSTICE ACT 1994 S63(6)

CRIMINAL JUSTICE ACT 1994 S64

DPP V KENNY 1990 2 IR 110

CRIMINAL JUSTICE ACT 1994 S64(5)

CRIMINAL JUSTICE ACT 1994 S64(a)

BYRNE V GREY 1988 IR 31

R V IRC EX PARTE ROSSMINSTER LTD 1980 AC 95

DPP V GAFFNEY 1987 IR 173

LYNCH, STATE V COONEY 1982 IR 337

DRUG TRAFFICKING ACT 1984 S27 (UK)

POLICE & CRIMINAL EVIDENCE ACT 1984 (UK)

DRUG TRAFFIC ACT 1984 (UK)

COURTS ACT 1971 S13

O'KEEFFE V BORD PLEANALA 1993 1 IR 39

R V MAIDSTONE CROWN COURT EX PARTE WAITT 1988 CLR 384

MCGEE V AG 1974 IR 284

WARD OF COURT, IN RE 1995 2 ILRM 401

R V SOUTHAMPTON CROWN COURT EX PARTE J & P 1993 CLR 962

R V SOUTHWARK CROWN COURT EX PARTE SORSKY DEFRIES 1996 CLR 195

WILLIAMS V SUMMERFIELD 1972 2 QB 512

R V LEWES CROWN COURT 1991 93 CAR 60

NIEMIETZ V GERMANY 1993 16 EHRR 97

R V CROWN COURT EX PARTE CUSTOMS & EXCISE 1989 AER 673

CONSTABULARY (IRL) ACT 1836 S50

DEIGHAN V IRELAND 1995 1 ILRM 88

OFFICIAL SECRETS ACT 1963 S9

CRIMINAL JUSTICE ACT 1994 S58

HOGAN & MORGAN ADMINISTRATIVE LAW IN IRELAND 2ED 643–647

CALLINAN V VHI UNREP SUPREME 28.7.1994 1994/8/2192

HALSBURYS LAWS OF ENGLAND 4ED V1 311

WARD V MCMASTER 1988 IR 337 1989 ILRM 400

BEVERLEY V AG 6 HLC 310

CRIMINAL JUSTICE ACT 1994 S63(3)

CONSTABULARY (IRL) ACT 1836 S19

WALSH V AG UNREP SUPREME 30.11.1994 1994/13/4279

Synopsis

Negligence

Duty of care; right to privacy; suspected money laundering; gardaí investigating solicitors" clients decided investigation required access to solicitors" files without alerting clients; search warrant obtained under s.64 Criminal Justice Act, 1994; search leaked to media; subsequent adverse publicity; whether gardaí responsible for leak; whether leak constituted negligence; s.64 warrant serious invasion of Constitutional rights; whether District Judge properly satisfied warrant appropriate; whether misfeasance by gardaí; whether duty of secrecy owed to public or State; whether if gardaí negligent warrant invalid and search unlawful; whether gardaí immune from liability; whether respondents vicariously liable Held: Warrant properly issued; garda leak outrage to legal profession and administration of justice; negligence and harm occurred; damages awarded (High Court: Kinlen J.14/11/1997)- [1998] 3 IR 69

Hanahoe v. Hussey

1 JUDGMENT of Mr. Justice Kinlen delivered the 14th day of November, 1997 .

2 The legal firm of Michael E. Hanahoe & Co. was established in 1939. It had and has the highest reputation in legal circles. This fact is accepted without question by the Respondents. Part of their practice was on the criminal side of the Court but certainly not the bulk of it.

3 There is national concern about the appalling increase in drug traffic in Ireland in the last 10 years which has devastated families and districts. The legislature in an effort to deal with this national scourge passed several acts including the Criminal Justice Act, 1994most of which (including the relevant sections for the purposes of these proceedings) was brought into force on October 21st 1994 by the Criminal Justice Act, 1994(Commencement) Order, 1994 (S.I. No. 324 of 1994). The case was very ably argued by Counsel on both sides and raises a number of legal problems for which there is as yet no precedent. The evidence and argument was heard over 9 days. I have tried in the course of this long judgment to set out all the arguments and to make findings of fact as I proceed and on those facts to ground my ultimate decision.

APPLICATION FOR WARRANT

4 The evidence tendered to the Court consisted of the two warrants, the two informations which were sworn and the oral evidence of Detective Inspector McGinn. She was the inspector in charge of the Money Laundering Investigation Unit.

5 She set up an operation code named "Operation Pineapple". This operation had been set up before the Criminal Assets Bureau was in existence. The operation was set up in April 1996. The operation was not a Criminal Assets Bureau investigation. Inspector McGinn was the Operational Inspector to deal with the day to day operational matters of the investigation. She would have reported once weekly to Chief Superintendent, Ted McCarthy who is the Chief Superintendent in charge of the Garda National Drugs Unit and she would also have reported to Assistant Commissioner, Tony Hickey who is in charge of the murder investigation team in Lucan into the murder of the late Veronica Guerin.

6 She had about 12 officers currently working in "Operation Pineapple" on a full-time basis under her command.

7 The principal suspects of her investigation were Mr. John Gilligan, his wife Geraldine Gilligan (also called on occasion, Matilda Dunne) and their associates. Investigations started as a result of the receipt of a Section 57 Disclosure of Information Under the Criminal Justice Act, 1994. From that information the Gardai could see that the principal suspects had substantial amounts of money and that they had used these substantial amounts of money to buy property. From these enquiries it was ascertained that Messrs. Michael E. Hanahoe & Company Solicitors dealt in (a) the conveyancing of this property, (b) the obtaining of the mortgages and (c) the discharge of mortgages in relation to the properties. Some of the vendors had agreed to release the files in their respective Solicitor's offices to the Gardai, while others refused. The Gardai were building up a file about the purchase and mortgaging of properties and possibly a quick discharge of mortgages on properties owned by Mr. and Mrs. Gilligan and their associates. As a result of these enquiries a meeting was held on the 30th September, 1996. It was attended by a number of Senior Gardai who were directly or indirectly involved in the investigation of money laundering, or, at least, involved in other investigations that were of interest to Inspector McGinn's investigation. This meeting took place in the Serious Crime Office of the Central Detective Unit at Harcourt Square. The meeting was chaired by Assistant Commissioner, Tony Hickey. In attendance were Chief Superintendent McCarthy from the National Drugs Unit, Chief Superintendent Murphy who is now attached to the Criminal Assets Bureau, Superintendent Felix McKenna who is now attached to the Criminal Assets Bureau, Inspector William McGee from the Garda Bureau of Fraud Investigations, Inspector Gerry O'Connell from the Lucan Investigation Team into the murder of the late Veronica Guerin and Sergeant John Matlin who had worked on "Operation Pineapple" but who is now attached to the Criminal Assets Bureau. The Criminal Assets Bureau had been set up at that time on an ad hoc basis and the legislation was not fully brought into force. Chief Superintendent Murphy and Superintendent McKenna were brought in to set it up. This meeting decided that the Gardai needed to consider the evidence which was in the office of Messrs. Michael E. Hanahoe & Company. After due consideration of the law they felt that the only way they could obtain this evidence was by way of a search warrant. After the decisions were taken, the meeting was joined by the now Criminal Assets Legal Bureau Officer, Barry Galvin, Solicitor.

8 Inspector McGinn was aware of the difference between Section 63 (it is basically an order to make material available) and Section 64 Search Warrant. The meeting gave due consideration to both provisions of the law and they felt it was necessary to go under Section 64 Warrant for a number of reasons.

9 She felt that if she did not gain immediate assess to the material which was in the office of Messrs. Michael E. Hanahoe & Company, Solicitors, her investigations would be seriously prejudiced. She could not complete an investigation file on money laundering unless she could prove all the evidential chain in the paper trail. She needed every bit of evidence which was available. She was asked for the reasons she had for taking the Section 64 route as opposed to the Section 63 route. She felt that Messrs. E. Hanahoe & Company, Solicitors for John and Geraldine Gilligan had been precluded by a duty of confidentiality from releasing the documents to her. She was also aware that John Gilligan was a very dangerous criminal, that he had contacts with the drugs and criminal fraternity operating in this country and elsewhere and that he had access to unlawfully held firearms. She was also aware that he would have prevented her in any way he could from obtaining evidence which would incriminate him in breaches of the criminal law. If she served the Section 63 Order on the Solicitors, they would have been obliged to seek instructions from their clients as to whether they, the Solicitors, or, the clients should seek to vary or discharge an order under Section 63 (6) of the Criminal Justice Act, 1994. If that had happened Mr. Gilligan would have become aware that she was looking for the documents. She would have been frustrated in any efforts she had made to obtain those documents. By the time she could have gone for Section 64 Warrants the documents would have disappeared. Mr. Gilligan would have stopped her whatever way he could from obtaining the documents. Nothing on this earth would have stopped Mr. Gilligan. He would have prevented her in whatever way he could from obtaining the evidence which was vital and primary evidence of the crime of money laundering.

10 This was the fifteenth time in "Operation Pineapple" that she...