The People (at the suit of the DPP) v Joseph Behan
|Mr Justice Peter Charleton,Ms. Justice Iseult O'Malley,Mr. Justice Woulfe
|30 May 2022
| IESC 23
| IECA 200 Court of Appeal record number: 2020/77 Circuit Criminal Court record number: Bill No DUDP0676/2019
 IESC 23
Supreme Court appeal number: S:AP:IE:2021:000106
Court of Appeal record number: 2020/77
Circuit Criminal Court record number: Bill No DUDP0676/2019
An Chúirt Uachtarach
The Supreme Court
Conviction – Attempted robbery – Search warrant – Appellant seeking to appeal against conviction – Whether a search warrant was valid
Facts: The appellant, Mr Behan, was convicted of a number of offences arising out of an attempted robbery of a business in a shopping centre. A firearm was discharged during the incident. Two staff members were injured, with one receiving a life-threatening injury. The appellant’s appeal against conviction was dismissed in the Court of Appeal ( IECA 200). Leave to appeal to the Supreme Court was granted on the 15th November 2021 ( IESCDET 127). The issue in the appeal was the validity of a search warrant, on foot of which incriminating evidence – primarily, a glove bearing traces of firearms residue and the DNA of the appellant – was found in the appellant’s home. The warrant was issued by a detective superintendent acting under the provisions of the Criminal Justice (Search Warrants) Act 2012. That legislation amends the Offences Against the State Act 1939 by substituting a new section for s. 29. The effect is that search warrants relating to the commission of offences to which the Act applies are normally to be issued by judges of the District Court. However, a member of the Garda Síochána not below the rank of superintendent may issue a warrant if there are circumstances of urgency rendering an application to a judge impracticable. Subsection (5) provides that an officer may issue a search warrant “only if he or she is independent of the investigation of the offence”. The word “independent” is defined in subs. (12) as meaning “not being in charge of, or involved in, that investigation”. On the facts of his case, the appellant contended that the detective superintendent who issued the warrant was not independent of the investigation because, although he was not involved in the investigation up to the point where he was contacted and asked for a warrant, it was inherent in the nature of his particular role as a Division Detective Superintendent that he would be involved thereafter and he did, as a matter of fact, become involved.
Held by the Court that on the assumption that a J.C. inquiry (People (Director of Public Prosecutions) v J.C.  1 I.R. 417) could, for some reason, have led to the exclusion of the evidence, it was necessary to consider whether the appellant could then have been acquitted. In the Court’s view, this could not have been much more than a remote possibility, even without the glove. The Court found that there was incontrovertible evidence that the raider came from, and returned to, the home of the appellant. The Court held that once the youngest of the brothers was eliminated from inquiries, the other two were the only realistic suspects. The Court noted that the appellant told the gardaí that he was at home, but there was no suggestion that the CCTV footage showed a different man leaving and returning to the house. The Court noted that the raider was wearing the clothes and shoes that the appellant had been wearing earlier in the day, and his DNA was on the plastic bag thrown onto the counter during the attempted robbery. The Court held that it was apparent from the jury verdict that they were satisfied from the footage that the older of the appellant’s two brothers was the man who received the bicycle from the perpetrator outside the house, after the shooting. The Court held that this left the appellant as the only possible raider. The Court held that the evidence against him was more than sufficient for a conviction, even without the glove.
The Court did not consider that the conviction amounted to a miscarriage of justice. The Court dismissed the appeal.
Judgment of Mr Justice Peter Charleton delivered on Monday 30 May 2022
Urgency has always been a reason for pursuing a legitimate purpose in the protection of the victims of crime or the prevention of the destruction of evidence. Where a situation is sufficiently pressing, the necessity to obtain judicial authorisation for trespass on any asserted constitutional rights of a suspect may render lawful what otherwise might be unlawful. In the development of the common law, experience dictated that pursuant to a legitimate arrest, a suspect could be searched to prevent the use of concealed weapons and that where an arrest took place within the residence of a suspect, such material as within that suspect's immediate possession might be seized, as might evidence relevant to the investigation of the crime for which the arrest power was invoked.
Hence, while there was initial a lack of clarity as to the exact parameters of the rule excluding unconstitutionally obtained evidence, first uncertainly introduced in and since modified in , , the wider entitlements of the community and of victims to be protected from crime were consistently acknowledged. Hence, , in introducing a rule to exclude relevant evidence where there was a conscious violation of the Constitution, excluded such situations of urgency, described as “extraordinary excusing circumstances”, as the rescue of a victim in peril and the imminent destruction of vital evidence; at 170. Walsh J noted that there was no constitutional right to “destroy or dispose of evidence or to imperil the victim.” In addition, he placed within the excusable category “evidence obtained by a search incidental to and contemporaneous with a lawful arrest although made without a valid search warrant.” Kingsmill Moore J, at 162, preferred not to make categorisations of what might be excused in advance of the facts which individual cases might bring to light, though he agreed with the principle of exception as enunciated by Walsh J.
At common law, protections against search of private premises grew up over time and included rules as to what might be seized on foot of a search warrant and what might be taken in consequence of a valid arrest. Hence, in , , books and documents in the same room as the accused might be validly seized and in a rule was formulated that any evidence found on or in the possession of an arrestee which is material evidence on the charge arrested for, or one in the contemplation of the arresting officer, or which appeared on reasonable grounds to be stolen property or property in the unlawful possession of the arrestee might be retained for use in the trial of the person, or that of any other person on any criminal charge in which the property is to be used in evidence. In other jurisdictions, rules which both justified and limited the seizure of material for use in investigations would seem to have their origin in either the urgency of the situation or in the protection of the judicial process through the maintenance of items of potential proof that would otherwise be lost. Hence, in , while a valid arrest could not result in officers validly searching the entire of the accused's home, it was justified to search the arrestee “in order to remove any weapons that … might be used to resist arrest or effect … escape”, the justification being to protect safety. In addition, that “within the immediate control” of an accused was extended to “the area from within which [the arrestee] might gain possession of a weapon or destructible evidence”; at 762–3.
As Walsh J says in :
Attention should also be drawn to the fact that the administration of justice itself requires that the public has a right to every man's evidence except for those persons who are privileged in that respect by the provisions of the Constitution itself “or other established and recognised privilege”. (See the judgment of this Court in .) It was pointed out by the Supreme Court in the case of that it would be impossible for the judicial power under the Constitution, in the proper exercise of its functions, to admit any other body of persons to decide for it whether or not certain evidence should or would be disclosed or produced in Courts.
While the purpose of this judgment is not to reaffirm any of the decisions as to powers upon arrest, much less to move in any way towards such reasoning as exemplified in amplifying police powers at common law, as in , the concentration of dicta on both urgency and the need to preserve evidence demonstrate that the integrity of the court system is founded on a search for truth and the assertion of rights to detract from a shrewd and complete appraisal of what can be known about a justiciable controversy must be justified by some clearly overriding principle.
The Constitution has never contained a principle that only upon a judicially issued warrant may a person's home be entered. Instead, Article 40.5 declares the inviolability of the dwelling of the citizen, “Is slán do gach saoránach a ionad cónaithe”, providing that forcible entry, “dul isteach ann go foréigneach”, may only occur in accordance with law, “de réir dlí.” In contrast, the Constitution of the United States of America extends to a “right of the people to be secure in their persons, houses, papers and effects” and enables only reasonable searches and...
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