Mc Glinchey -v- Judge Gibbons & Anor, [2009] IEHC 254

Docket Number:2008 394 JR
Party Name:Mc Glinchey, Judge Gibbons & Anor
Judge:O''Keeffe J.

THE HIGH COURTJUDICIAL REVIEW2008 394 JRBETWEENPAUL MCGLINCHEY, AS NOMINEE OF 'THE GOLDEN GRILL' (LETTERKENNY) LIMITEDAPPLICANTANDDISTRICT JUDGE CONAL GIBBONSAND DIRECTOR OF PUBLIC PROSECUTIONS AT THE SUIT OF INSPECTOR M. WALKER RESPONDENTSJUDGMENT delivered by Mr. Justice O'Keeffe on 27th day of May, 20091. On 7th 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 29th 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 2nd April, 2008 requiring the Applicant to appear at the District Court Letterkenny on 15th 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 10th January, 2008 the Applicant applied to the Circuit Court sittings in Letterkenny, Co. Donegal commencing on 5th 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 1st 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 29th 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 28th 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 29th 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 2nd April, 2008, charging the Applicant with an offence contrary to section 7 of Intoxicating Liquor (General) Act 1924 in that the Applicant did on 29th 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 search the Applicant's premises...

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