McGlinchey (nominee of 'The Golden Grill' (Letterkenny) Ltd) v District Judge Gibbons & DPP (Walker)
| Jurisdiction | Ireland |
| Judge | Mr. Justice O'Keeffe |
| Judgment Date | 27 May 2009 |
| Neutral Citation | [2009] IEHC 254 |
| Court | High Court |
| Date | 27 May 2009 |
[2009] IEHC 254
THE HIGH COURT
BETWEEN
AND
AND
LICENSING ACT 1874 S24
INTOXICATING LIQUOR (GENERAL) ACT 1924 S7
CONSTITUTION ART 40.5
WOODS THE LIQUOR LICENSING LAWS OF IRELAND 3ED 2001 489
BYRNE v GREY 1988 IR 31 1988/4/949
MISUSE OF DRUGS ACT 1977 S17
SIMPLE IMPORTS LTD & SEVEN IMPORTS LTD v REVENUE CMRS & ORS 2000 2 IR 243 1999/23/7430
CUSTOMS CONSOLIDATION ACT 1876 S205
CUSTOMS & EXCISE (MISCELLANEOUS PROVISIONS) ACT 1988 S5(1)
DPP v MCGOLDRICK 2005 3 IR 123 2005/21/4427 2005 IECCA 84
DCR O.34
R v INLAND REVENUE CMRS, EX PARTE ROSSMINSTER LTD 1980 AC 952 1980 2 WLR 1 1980 1 AER 80
CRIMINAL LAW
Warrant
License - Requirements of section - Whether warrant bad on face - Whether statute existed - Whether statutory requirement for warrant to show on face that District Judge satisfied as to grounds for issue - Whether statutory requirement for warrant to record who swore information - Whether prescribed form for warrant in question existed - Whether matter ought properly be challenged before trial judge - Whether failure to precisely identify title of act fatal to warrant - Byrne v Grey [1988] IR 31 and Simple Imports Ltd v Revenue Commissioners [2000] 2 IR 242 applied; DPP v McGoldrick [2005] IECCA 84 [2005] 3 IR 123 considered - Licensing Act (Ireland) 1874 (37 & 38 Vict, c 69), s 24 - District Court Rules 1997 (SI 93/1997), O 34 - Relief refused (2008/394JR - O'Keeffe J - 27/5/2009) [2009] IEHC 254
McGlinchey v Gibbons
Facts: The applicant sought reliefs by way of judicial review to inter alia quash a warrant obtained to enter and search premises pursuant to the provisions of s. 24 Licensing Act 1874 and an injunction to deliver up items seized. It was alleged that the applicant had not renewed a Publican’s License since 2006. The applicant claimed that its constitutional rights had been violated and that the warrant comprised of a pro forma document was not part of the District Court rules. It was claimed that the warrant was issued pursuant to a statute that did not exist.
Held by O’ Keefe J. That there was no statutory obligation under s. 24 that the warrant would contain the recital in the warrant precedent suggested, namely that the District Judge was satisfied from the particulars that there was reasonable ground for the belief of the Judge. The Court was satisfied that the requirements for information on oath which were set out conformed to the requirements of s. 24. The applicant had not made out a case to quash the warrant. The application would be refused and the stay lifted on the District Court prosecution.
Reporter: E.F.
JUDGMENT delivered by Mr. Justice O'Keeffe on 27th day of May, 2009
1. On 7 th April, 2008 the Applicant obtained leave of the High Court to apply for judicial review for:-
(i) An order of certiorari by way of judicial review quashing a warrant to enter and search granted by the First Named Respondent on 29 th March, 2008 pursuant to the provisions of section 24 of the Licensing Act 1874 in relation to the Applicant's premises known as The Golden Grill, Letterkenny, Co. Donegal.
(ii) A declaration that the said warrant is void unlawful and of no legal effect.
(iii) An injunction directing the Second Named Respondent to deliver up to the Applicant all goods/things seized on foot of the said purported warrant to enter and search the aforesaid (premises).
(iv) An order staying all proceedings as against the Applicant by the Second Named Respondent until the determination of this application for judicial review.
2. It was ordered that the further prosecution of the District Court summons issued on 2 nd April, 2008 requiring the Applicant to appear at the District Court Letterkenny on 15 th May 2008, be stayed pending the determination of this application.
3. The Applicant's license to sell Intoxicating Liquor on its said premises lapsed in September 2006 whilst major renovation works began on the premises and continued for approximately ten months. Part of the premises was then opened to business and the entire premises were opened in November 2007. A notice dated 10 th January, 2008 the Applicant applied to the Circuit Court sittings in Letterkenny, Co. Donegal commencing on 5 th February, 2008 for a certificate enabling the Applicant to obtain an excise license to sell Intoxicating Liquor for consumption on and off the said premises. The application was adjourned for hearing until 1 st April, 2008. The Applicant stated that there were no objections from the Second Named Respondent in February 2008 when the application to revive the license was brought.
4. On 29 th March, 2008 Inspector Walker (named in the title hereof) applied to the First Named Respondent for the issuing of a warrant to search The Golden Grill, Ramelton Road, Letterkenny (the Applicant's said premises). Inspector Walker stated that in advance of applying for the warrant, he swore an information under section 24, Licensing Act (iR) 1874. The information stated:-
"I am a member of An Garda Síochána not below the rank of Inspector. I have reasonable grounds for believing that the premises of The Golden Grill at Ramelton Road, Letterkenny, Co. Donegal within the court area of Letterkenny and District Number One an offence under section 26 of the Intoxicating Liquor Act 1962, has been, is being and has and is about to be committed.
The basis for such ground is that the premises has not renewed the Publicans License since 2006. On 28 th March, 2008 Sergt. Duffy demanded production from the owner Paul McGlinchey of the license granted under the Intoxicating Liquor Act authorising him to authorise sale, open for sale and supply Intoxicating Liquor. Mr. McGlinchey admitted having no license in respect of the premises. He refused to close the premises to the public on demand by Sergt. Duffy. There were approximately 200 people on the premises and alcohol was being sold. Events were advertised weekly in the local newspapers and I hereby apply for a warrant to search the said premises and seize and remove any Intoxicating Liquor found therein."
5. In an affidavit sworn in response to this application, Inspector Walker states that when he applied to the District Court the First Named Respondent examined the written information and asked several questions of him in relation to the application which he duly answered. He said that the First Named Respondent indicated to him in open court that he was satisfied that there were reasonable grounds to believe that the facts sworn by him in the information were correct and thereafter he proceeded to issue the warrant. He said the warrant issued by the First Named Respondent was in a pre-printed form obtained from Letterkenny Garda Station. It was entitled:-
"WARRANT TO ENTER AND SEARCH UNLICENSED PREMISES"
(37 & 38 Vic., Cap. 69, section 24)
(The warrant stated, inter alia,)
WHEREAS it appears by information on oath that there is reasonable ground to believe that intoxicating liquor is sold by retail or exposed or kept for sale by retail at The Golden Grill occupied by the said Defendant, Paul McGlinchey and situate at Ramelton Road, Letterkenny, Co. Donegal in the court area and district aforesaid, and that such intoxicating liquor is not authorised to be sold by retail therein:
THIS IS THEREFORE TO AUTHORISE YOU Inspector Walker to whom this warrant is addressed, at any time or times within one month from the date hereof, to enter, and, if need be, by force, the aforesaid The Golden Grill situate at Ramelton Road, Letterkenny, Co. Donegal and every part thereof, and examine the same and search for Intoxicating Liquor therein, and do all such matters and things as are authorised and required by section 24 of the Licensing Act, 1874, (37 Vic., & Cap. 69).
6. The warrant is signed by the First Named Respondent dated 29 th March, 2008 and addressed to the Superintendent of the Garda Síochána at Letterkenny.
7. On affidavit, Inspector Walker stated that he and Sergeant Galligan supervised the seizure of the applicant's goods on the Applicant's premises and that a full inventory of the stock that was taken was kept.
8. Arising from the said search by Inspector Walker, a summons was issued against the Applicant on 2 nd April, 2008, charging the Applicant with an offence contrary to section 7 of Intoxicating Liquor (General) Act 1924 in that the Applicant did on 29 th March, 2008 at The Golden Grill sell/expose for sale/keep for sale intoxicating liquor without being duly licensed to sell such intoxicating liquor.
9. In the grounds upon which judicial review is sought, it is, inter alia, claimed that the warrant to enter and search Applicant's premises does not conform with the requirements of section 24 of the "Licensing Act 1874". The statute under which the warrant was applied for was the "Licensing Act 1874", which it is contended does not exist and that the warrant to enter and search was applied for and issued under the "Licensing Act 1874", section 24. It is submitted that the correct title of the Act is the "Intoxicating Liquors (Ireland) Act" or the Act may be cited as per the Act's construction in short title as the Licensing Act (Ireland) 1874. It was contended by the Applicant that the warrant was bad on its face in that the Act under which the warrant was applied for was incorrect.
10. It was further contended that the First Named Respondent issued the purported warrant to enter and...
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...by way of judicial review in issues pending in a trial in a lower court. This was confirmed by O'Keefee J. in McGlinchey v. Gibbons [2009] IEHC 254. The learned Judge adopted the dictum of Keane J. in Simple Imports Limited v. The Revenue Commissioners [2000] 2. I.R. 243: 'We are not conc......