The Director of Public Prosecutions [At the Suit of Garda Diarmaid Loughnane] v Davis

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Micheál P. O'Higgins
• Judgment Date: 11 February 2026
• Neutral Citation: [2026] IEHC 104
• Docket Number: [Record No. 2025/132SS]

In the Matter of Section 2 of the Summary Jurisdiction Act 1857 As Extended by Section 51 of the Courts (Supplemental Provisions) Act 1961

Between

The Director of Public Prosecutions (At the Suit of Garda Diarmaid Loughnane)

Appellant

and

Richard Davis

Respondent

[2026] IEHC 104

[Record No. 2025/132SS]

THE HIGH COURT

Case stated – Criminal charge – Acquittal – Appellant appealing by way of case stated – Whether the District Judge was correct in law to acquit the respondent

Facts: The appellant, the Director of Public Prosecutions (the DPP), appealed the decision of the District Judge to dismiss a criminal charge against the respondent, Mr Davis, alleging that he was in possession of cocaine, a controlled drug, in his dwelling on 27 October 2022. The DPP requested the District Judge to state a case to the High Court on the following questions of law: “(a) Was I correct to rule that, when the search was being conducted at the time the cocaine was found, seized and detained by Garda Loughnane, he was not at that time “accompanying” Garda Colleran? (b) If I was correct, was I correct to rule that there was no good reason why Garda Loughnane was not, at the time the drugs were found, seized and detained, accompanying Garda Colleran? (c) If I was correct on the two foregoing questions, was I correct to rule that the search, at the time the cocaine was found, seized and detained by Garda Loughnane, was illegal? (d) What effect does this have on the admissibility of the evidence? (e) Was I correct in law to acquit the respondent of the offence?”

Held by the Court that, notwithstanding its view that a People (DPP) v J.C. [2017] 1 IR 417 type analysis should have been carried out in the District Court, it would not to disturb the District Judge’s decision to acquit the respondent. The Court answered the questions posed in the case stated as follows: (a) yes; (b) yes - this was essentially a matter for the District Judge to assess upon hearing the evidence, and the Court saw no reason to interfere with the District Court’s decision; (c) yes; (d) it will be a matter for the trial judge in each case to consider (a) the nature of the breach of constitutional rights concerned and how it occurred and (b) what consequences flow from a J.C. type analysis as a result of the breach and the finding of unlawfulness - a trial judge will have the guidance of the test as summarised at para. 871 of the judgment in J.C. and will also have the benefit of later jurisprudence from the Supreme Court on the issue, including People (DPP) v Quirke (No. 2) [2023] 1 ILRM 445 at para. 56 of the Irish report; (e) no - not for the reasons indicated in the case stated. The mere finding that the search was unlawful did not mean that the charge should have been automatically dismissed. The trial judge should have carried out an analysis of the legal consequences that flow from a finding of unlawfulness. The unlawfulness arose in what appeared prima facie to be circumstances of inadvertence, rather than deliberate wrongdoing or impropriety. The garda member’s error stemmed from a desire to commence the search of another property. Ordinarily, a trial judge should carry out a J.C. type assessment to ascertain whether, notwithstanding any finding that the evidence was obtained unlawfully, the evidence should nonetheless be admitted. The guidance of the Supreme Court in Quirke (No. 2) will also be of assistance to trial judges in that regard.

The Court disallowed the appeal and the decision to acquit the respondent would stand.

Appeal dismissed.

Appearances:

James Dwyer SC and David Staunton BL instructed by the Chief Prosecution Solicitor for the appellant.

Conor Devally SC and Suzanne Dooner BL instructed by Brophy and Martin Solicitors, Offaly for the respondent.

APPROVED JUDGMENT delivered by Mr. Justice Micheál P. O'Higgins on 11 ^th day of February 2026

Introduction

1 . This is an appeal by way of Case Stated pursuant to section 2 of the Summary Jurisdiction Act 1857, as extended by the Courts (Supplemental Provisions) Act 1961, on a point of law for the opinion of the High Court. The Director of Public Prosecutions is appealing the decision of District Judge Andrew Cody to dismiss a criminal charge against the respondent alleging that he was in possession of cocaine, a controlled drug, in his dwelling on the 27 ^th October 2022.

2 . The case turns on an issue of statutory interpretation as to the correct meaning of the phrase “accompanied by” in s. 26 (2) of the Misuse of Drugs Act 1977 (as amended) (the “1977 Act”). The issue has importance beyond the facts of the respondent's case because the phrase is used in many other statutes concerned with search warrants and garda powers. The second issue in the case concerns the approach a trial judge should take when assessing the admissibility of evidence obtained where the authority of a search warrant may have been exceeded.

Background facts

3 . The respondent came before District Judge Cody at a sitting of Tullamore District Court on 16 ^th October 2023. He faced a criminal charge particularised as follows:

“On the 27 ^th October 2022 at 5 St Cormacs Pk Kilcormac Offaly in said District Court Area of Tullamore, had unlawfully in your possession a controlled drug, to wit, namely cocaine.

Contrary to Section 3 of the Misuse of Drugs Act 1977 and

Contrary to [section] 27 (1) of the Misuse of Drugs Act 1977 as substituted by Section 6 of the Misuse of Drugs Act, 1984.”

4 . The respondent was represented by Patrick Martin, solicitor. The appellant was represented by a Sergeant in An Garda Síochána. The prosecution called evidence from Garda Helen Colleran, Garda Diarmaid Loughnane and Sergeant Pat O'Connell.

5 . To aid brevity, I will refer to the suspected drugs found during the search as simply “the cocaine”. That was the word used in the Case Stated. That should not be taken as a finding that the substance in question was cocaine, one way or the other.

6 . It is apparent from the Case Stated that Garda Colleran, having sworn an information, obtained four search warrants on 26 ^th October 2022. Three houses were searched on the morning of 27 ^th October 2022, and one house was searched that evening. The first house searched was 5 St. Cormac's Park (the respondent's dwelling), the second was Fairgreen Street and the third was Bridge Street. The fourth house searched was in Kilcormac. As to distances, Fairgreen Street is about 3 to 4 minutes' walk from St. Cormac's Park, and Bridge Street is about 5 minutes' walk around the corner from St. Cormac's Park.

7 . As required under the Case Stated procedure, I will take the facts as found by the District Judge in the Case Stated itself:

• (a) The holder of the search warrant was Garda Colleran.

• (b) Garda Colleran had authority to carry out the acts as authorised by the search warrant.

• (c) Garda Loughnane had no authority to do any of the acts set out in the warrant unless he was accompanying Garda Colleran.

• (d) The search of the respondent's dwelling commenced at approximately 7:40 am.

• (e) Garda Colleran entered 5 St. Cormac's Park through the front door.

• (f) Garda Colleran then searched an upstairs bedroom.

• (g) Garda Colleran then went into a sitting room before leaving the premises.

• (h) Garda Colleran remained at 5 St. Cormac's Park for a “few minutes”.

• (i) Garda Loughnane entered 5 St. Cormac's Park from the rear in or around the same time Garda Colleran entered from the front.

• (j) Garda Loughnane searched the rear shed and garage.

• (k) Garda Loughnane found the cocaine “at the closing stages” of the search.

• (l) Garda Loughnane then examined and inspected the cocaine.

• (m) Garda Loughnane then seized the cocaine.

• (n) Garda Colleran attended at a separate address at Fairgreen Street at 8:10 am to search that property.

• (o) Garda Colleran then left Fairgreen Street and carried out a search at another address at Bridge Street.

• (p) The searches at Fairgreen Street and Bridge Street were unrelated to the search of the respondent's dwelling at St. Cormac's Park and there was no necessity for the searches to be conducted simultaneously.

• (q) Garda Colleran subsequently returned to 5 St. Cormac's Park.

8 . Judge Cody felt that the fundamental question he had to consider was whether Garda Loughnane was accompanying Garda Colleran at the time he found, inspected and seized the cocaine. In the view of the judge, Garda Colleran failed to appreciate the limits placed on her authority and the authority of the other gardaí who were supposed to be accompanied by her while searching 5 St. Cormac's Park in that she failed to appreciate that only when she, the authorised officer, accompanied those other members, could those other members:

• • Enter the premises

• • Search such premises

• • Search any persons found thereon

• • Examine any substance, article or other thing found thereon

• • Inspect any book, record or other document found thereon

• • Seize the substance, article, document or other thing

• • Detain the substance, article document or other thing

9 . The District Judge stated that Garda Colleran believed that all she was required to do in effecting and acting upon the warrant was knock on the door of the property, produce the relevant warrant, and enter the property, and that she could then leave after a few minutes. The judge found as a fact that this is what she did, leaving Garda Loughnane unaccompanied by her and therefore, in the judge's view, removing from Garda Loughnane any authority to continue to search, examine, inspect, seize or detain the suspected drugs.

10 . The District Judge reasoned that, in the absence of any definition within the 1977 Act, the words “accompanied by” in s. 26 must be given their ordinary meaning. He stated that, in ordinary language, to be “accompanied by” someone means that a person “goes along” with another person. He...