Judgment Title: DPP v Gareth Mallon
Composition of Court: O'Donnell J., Gilligan J., O'Keefe J.
Judgment by: O'Donnell J.
Status of Judgment: Approved
Outcome: Allow DPP appeal
COURT OF CRIMINAL APPEAL
The People at the Suit of the Director of
Judgment delivered by O’Donnell J. on the 3rd day of March 2011.
1 On the 29th November, 2006, Garda Kevin Lawless swore an information on oath before peace commissioner Patrick Morton seeking a search warrant pursuant to s.26 of the Misuse of Drugs Act 1977, as amended, in respect of premises described as “4 Marrowbone Close, Dublin 8”. After inquiry by the peace commissioner, a warrant was issued. The warrant was in standard printed form with blanks for the name of the informant, the nature of the controlled drug, the address of the premises, and a blank for the signature of the peace commissioner or District Justice as appropriate. The form also provided, at certain points, for options and invited deletion of the option considered inappropriate.
In this case, both the information and the search warrant issued pursuant to it were completed in all material respects. The executing commissioner had jurisdiction to grant such a warrant being a peace commissioner assigned to the County of Dublin, and the warrant correctly recited his jurisdiction. It is clear that the statutory preconditions to the grant of a warrant under s.26, namely that the peace commissioner was satisfied by information on oath from a member of An Garda Síochána that there was reasonable ground for suspecting that a person who was in possession of a controlled drug on premises, were satisfied. Furthermore, the warrant correctly recorded that these statutory preconditions had been established. The warrant was executed without objection and diamorphine to the value of €300,000 was found. As a result, the accused was charged with three offences under the Misuse of Drugs Act 1977, as amended. However, before the trial proper commenced, the defence invoked the procedure under s.4(E) of the Criminal Procedure Act 1967, as inserted by s.9 of the Criminal Justice Act 1999. That procedure permits the accused, once returned for trial, to apply to the trial court for a dismissal of one or more of the charges. Significantly, however, subsection 7 provides for an appeal by the prosecutor from any such dismissal, and in the case of a successful appeal the trial of the accused may proceed as if the charge had never been dismissed.
2 The ground upon which this accused applied for a dismissal of all charges was simple indeed. The information on the warrant described the premises as “4 Marrowbone Close, Dublin 8”. However the correct address of the premises searched, and in which the diamorphine was found, was “4 Marrowbone Lane Close, Dublin 8” (emphasis added). It was common case that there was a 4 Marrowbone Lane Close in Dublin 8 (indeed that was the premises searched) but there was no “Marrowbone Close” and consequently no 4 Marrowbone Close in Dublin 8 or elsewhere. This point was heavily relied on by the defence, which was in a position to call evidence from the Ordnance Survey to prove that there was no street called “Marrowbone Close” in Dublin 8 or indeed anywhere in Dublin. However, that fact was agreed by the prosecution and it was not necessary to tender the evidence. On the basis of these agreed facts, it was argued on behalf of the accused that the warrant had been issued for a premises which did not exist, and could not, therefore, authorise the search of the premises at 4 Marrowbone Lane Close, which assuredly did exist. It was accepted that this error was entirely innocent, and that Garda Lawless believed that the address of the premises was indeed 4 Marrowbone Close. That was the address he gave in the printed information and in his sworn evidence, and therefore the address for which the warrant was issued. The premises which was searched, was the premises he intended to search, and which he described as 4 Marrowbone Close. That, it was argued, made no difference. The warrant, it was said, was not valid, or at least not valid for 4 Marrowbone Lane Close, the premises actually searched. If the warrant was invalid, the search was illegal. The search was therefore a breach of the constitutional right to inviolability of the dwelling home, which could only be entered in accordance with law. The entry was deliberate, and therefore following the decision of the Supreme Court in The People (Director of Public Prosecutions) v Kenny  2 IR 110 it constituted a deliberate and conscious violation to the breach of the constitutional right of the citizen, and accordingly the evidence obtained must be excluded in the absence of any extraordinary excusing circumstances. Once that evidence was excluded, the charge it was said must be dismissed.
3 The application for dismissal was heard by an experienced judge of the Circuit Court. He remarked that the net point raised was one of a series of this type of application in relation to warrants under the Misuse of Drugs Act 1977, as amended, which presented on occasions with a variety of alleged defects. Because he was clearly familiar with the area, the submissions and the ruling proceeded expeditiously. The trial judge accurately encapsulated the prosecution argument that the Court of Criminal Appeal decision in The People (DPP) v Balfe  4 IR 50 was authority for the proposition that errors did not necessarily invalidate the warrant or make it ineffective for the purposes of the admission of evidence obtained thereunder. On the other hand, the defence argument was that Balfe no longer represented the law. It was argued that it was inconsistent with the Central Criminal Court decision of Director of Public Prosecutions v Henry Dunne  2 IR 537, a decision which had then been approved in the Supreme Court decision of The People (Director of Public Prosecutions) v Edgeworth  2 IR 131. The submissions proceeded almost in shorthand. There is no doubt that the trial judge accurately identified the issues raised between the parties. With evident reluctance, the trial judge acceded to the defence application. The reasoning of the trial judge, and his observations on the state of the law are worth quoting in some detail. First, he observed:-
“As regards this particular warrant, I regard myself as bound by Henry Dunne and by the Edgeworth decision. I don’t relish doing this. I think, in this case, an exclusionary type rule is a nonsense. It doesn’t punish the police, who are not in need of punishment in this case because it was an inadvertent slip of a type we all make in our daily lives. This seems to me to be too high a price for society to have to pay for omissions of this kind. It seems to me that at the time that the exclusionary rule was trimmed so as to ensure that police misconduct or impropriety is punished but that properly explained inadvertence is not. So I think I find myself in the invidious position; if I could and felt free to apply the Balfe decision, I would and would have no difficulty in doing so on the basis that it is precisely the kind of warrant that the Court of Criminal Appeal had in mind and that is a valid warrant with a patent omission or a mistake on its face. On the other hand, as I say, I have the decision of Mr Justice Carney [DPP v Henry Dunne] which states that these warrants must be unambiguous and that they cannot – words cannot be supplied or omitted or read in or read out of the picture. So reading the warrant literally, it doesn’t give authority to search these premises without supplying the word Lane. I am not entitled to do that on the basis of the High Court decision as subsequently approved by the Supreme Court. The Supreme Court is the ultimate authority and arbiter of these matters, and on that basis, without any relish whatsoever, I feel constrained to hold that the warrant is invalid and that is the position.”
5 The remorseless logic of the Kenny decision leading to the automatic exclusion of evidence sometimes as a result of quite trivial errors, has been the subject of critical comment, most notably by the former Chief Justice Keane C.J. in the foreword to McGrath, Evidence, (Dublin: Roundhall Press, 2005) and by Charleton, J. ( himself a distinguished author in the field of criminal law ) in the High Court decision of Director of Public Prosecutions v Cash  IEHC 108, and that dissatisfaction is perhaps reflected in the comments of the trial judge here. However, this case does not raise the question of the admissibility of evidence obtained subsequent to an illegal and therefore, unconstitutional search. Instead it raised a logically anterior issue: in what circumstances will a warrant be considered ineffective, or invalid so as to give rise to the argument that evidence obtained should be excluded?
6 This is an important issue, all the more so because the consequence of any ineffectiveness or invalidity is the almost certain exclusion of the evidence in a subsequent trial. As the trial judge’s ruling here shows, however, the law, even in relation to the apparently technical question of the validity of a search warrant, is far from clear. It is easy to sympathise with any trial judge confronted with the range of judgments on defective warrants which represent the current corpus of Irish law, and which perhaps, deserve the criticism applied by Tennyson to the 19th century law of England, quoted by Hardiman, J. in O’Keefe v Hickey  2 IR 302, at p. 334:
The codeless myriad of precedent,
The wilderness of single instances.”
8 The starting point for the modern Irish law on search warrants is the famous case of The People (AG) v O’Brien  IR 142. At first sight, it might appear surprising that this case has any relevance to the question of the validity or effectiveness of the search warrant, since the starting point of that case was the determination in the Circuit Court that the search warrant for 118 Captain’s Road Crumlin was invalid. However, as will become apparent, a critical question in the subsequent case law is whether or not the decision in O’Brien was overruled by a subsequent Supreme Court decision in The People (DPP) v Kenny  2 IR 110. Furthermore, the statement by the Circuit Court in O’Brien that the warrant in that case was invalid itself masks a distinction which may be of importance. Presumably, the warrant, at least on its face, was perfectly valid for 118 Cashel Road, Crumlin, and would have authorised entry for that premises. Furthermore, it had been validly issued. It was perhaps at best ineffective to secure entry to 118 Captain’s Road albeit, that entry was effected and a search carried out.
9 The core facts of O’Brien are, or ought to be, well known to every Irish law student. The Gardaí had information that stolen goods were at a premises and a warrant was obtained. Unfortunately, through a mix up, the warrant was granted in respect of 118 Cashel Road, Crumlin, when the premises which the gardaí intended to search and to obtain a warrant in respect of (and indeed which were in fact searched) were 118 Captain’s Road Crumlin. As it happens, there is both a Cashel Road and Captain’s Road in Crumlin and both roads have a premises with the number 118. There had been a simple mix up. There was no question of bad faith, either in obtaining or executing the warrant. In the Circuit Court, the evidence was admitted and that decision was upheld in the Court of Criminal Appeal. Two issues were however certified for appeal to the Supreme Court under s.29 of the Courts of Justice Act 1924. The first was that the evidence had been obtained from premises while the members of the gardaí were not in possession of a valid warrant required by law authorising the search of the said house and the taking possession of the property. The second was that that evidence had been obtained in direct violation of Article 40.5 of Bunreacht na hÉireann.
Sometimes however the very familiarity of a decision can hinder its understanding. Since one of the issues in this case is what was decided by the O’Brien case, it is necessary to look at it afresh. In the first place, it is important to identify the background against which the decision was decided. At the time the O’Brien case was argued, there was a current and active debate in common law countries as to the question of the admissibility of illegally obtained evidence. All common law countries adopted a pragmatic approach to the question of admissibility of evidence. It was the function of a court to decide the case before it by reference to all the evidence that was available and any question of impropriety or illegality was strictly speaking, a collateral issue. This was the position which had been then recently reaffirmed by the Privy Council in the decision in Kuruma v The Queen  AC 197.
10 At the other extreme from Kuruma, was the approach of the United States Supreme Court to evidence obtained in breach of the Fourth Amendment guarantee against unreasonable searches and seizures. In Mapp v Ohio (1960) 367 US 643 (which had been decided after the argument in O’Brien but before the decision was delivered) the United States Supreme Court decided that an absolute exclusionary rule which had hitherto only applied in a relatively small number of federal proceedings, was also applicable to state courts under the Fourteenth Amendment. In the event it is clear that the Supreme Court in O’Brien adopted a position between the two extremes identified by Kuruma and Mapp.
11 O’Brien produced two thoughtful and learned judgments. The majority judgment was delivered by Kingsmill Moore J. with whom Lavery and Budd JJ. agreed. A separate judgment was delivered by Walsh J. with which O’Dalaigh C.J. agreed. The fact that the Court divided has tended to obscure what the Court – collectively – decided. For present purposes, the most striking thing about O’Brien is something rarely acknowledged in subsequent decisions and commentary. The Court was unanimous as to the outcome of the case. The appeal was rejected and the evidence obtained in 118 Captain’s Road on foot of a warrant addressed to 118 Cashel Road was held to have been correctly admitted. Indeed some members of the Court expressed their conclusions quite trenchantly. Any other conclusion, it was said, would have been absurd. Lavery J., who presided, doubted that the case raised a sufficiently serious issue to justify a decision on the question of the admissibility of the illegally obtained evidence. He went on at p. 148:
12 It is also arguable that there was very little difference as to the route by which the different members of the Court reached this conclusion. For Walsh J., at p. 170, although there had been a violation of the constitutional right of inviolability of the dwelling home, save in accordance with the law and protected by Article 40.5 of the Constitution, that violation was not deliberate and accordingly:-
14 It is unfortunate, however, that the further development of this area of law occurred not in the field exemplified by O’Brien of defects in search warrants, but rather in the area of the admissibility of statements obtained from suspects in detention. This was an issue which occupied the Courts during a highly charged period in our history when the threat and reality of violence from subversive organisations was considerable. In a number of cases before the Courts in the 1970s and the 1980s, suspects had been detained under the provisions of s.30 of the Offences Against the State Act 1939 beyond the expiry of either the initial period or the extended period permitted under that legislation; for example, in circumstances where the suspect had begun to make an inculpatory statement or because the gardaí had simply not adverted to the expiry of the period. In such cases, the courts received evidence from senior garda officers maintaining that they had no intention to violate the constitutional rights of the citizen. It became apparent that the essentially subjective test posed by the concept of “deliberate and conscious breach” was not necessarily an adequate test to deal with cases of professed and perhaps inexcusable ignorance of the rights of a citizen. In most cases, the courts were able to hold either that a relevant statement was made during a lawful period of detention, or that there was indeed an intentional breach, or that at a minimum, the prosecution had not discharged the onus of showing that a statement had not been produced by a deliberate and conscious breach of the constitutional rights of the citizen. But one argument which was advanced by some members of the Supreme Court, was to contend that the requirement of a deliberate and conscious breach was satisfied where the act breaching the right was itself deliberate, whether or not there was any consciousness or intent thereby to violate the constitutional right deliberately. At the price of some linguistic credibility perhaps, this formulation maintained a distinction between the violations of the Constitution which were inexcusable, and those which could be excused, such as where there was true and innocent inadvertence to the fact that the period had elapsed either because a clock was wrong, or where there was an excusable error in noting the commencement of the period of detention. Until 1990, however, that formulation had never been endorsed by a majority of the Supreme Court, and indeed had been rejected in The People (DPP) v Shaw  1 IR 1. It is a further complication of this area of law, that when this argument did achieve the acceptance of a bare majority of the Supreme Court, it did so not in the field of contested statements, but rather in the area of allegations of invalidity of warrants to which, it was arguably ill suited, since the act of searching would always be advertent and an invalidity in the warrant would lead automatically to illegality, and thereby to unconstitutionality and exclusion of the evidence, and by default, therefore, the adoption of an absolute exclusionary rule at least in the case of searches. This however, is not the place to debate the merits of this reasoning. It is however necessary to understand what was decided in Kenny and in particular how that dealt with the decision in O’Brien.
15 The People (DPP) v Kenny  2 IR 110 concerned a warrant pursuant to s.26 of the Misuse of Drugs Act 1977, as amended. The narrow but important point on the validity of the warrant that arose in Kenny, was one that had already been debated in Byrne v Grey  IR 31, which had itself been influenced by the landmark case of R v Inland Revenue Commissioners ex parte Rossminster Ltd  AC 952. The point taken in each of these cases (unsuccessfully in Rossminster but successfully in Byrne v Grey and Kenny), was that a statutory precondition to the jurisdiction of a peace commissioner to grant a search warrant had not been satisfied, either on the face of the warrant, or indeed on the facts of the case on the evidence adduced. Section 26 requires that the issuer of a search warrant (whether District Justice or Peace Commissioner) be satisfied by information on oath of a member of An Garda Síochána that there was reasonable ground for suspecting that a person is in possession of a controlled drug on the named premises. The warrant in Kenny was in a standard form and provided merely that the undersigned peace commissioner being satisfied on the information of the garda, granted the warrant. The warrant did not however state that the peace commissioner was himself satisfied there was a reasonable ground for suspecting the possession of a drug. Furthermore, the evidence in the case showed that the peace commissioner had not made any inquiry as to the nature of the garda’s belief and, therefore, could not have been satisfied himself that there was a reasonable ground for suspecting the possession of the drug. In narrow but simple terms, both the evidence and the warrant showed that the garda had grounds for suspecting the possession of a drug, but not that the peace commissioner was satisfied that there was a reasonable ground for suspecting that a person was in possession of a controlled drug in the named premises. Since the statutory precondition had not been satisfied, the peace commissioner did not have jurisdiction to issue the warrant and the warrant was bad.
16 In one sense, the point raised in Kenny (and indeed Byrne v Grey) could be described as a defect in the warrant, but in another sense it was much more fundamental than the type of misdescription, error in transcription or typographical error such as that which arose in O’Brien. In O’Brien, the peace commissioner had jurisdiction to issue the warrant, and the warrant on its face was entirely valid, and would again, at least on its face, have authorised entry and search of 118 Cashel Road. In Kenny however, once it was established that the statutory requirements had not been satisfied, there was no jurisdiction to issue any warrant and the warrant was not merely defective, it was wholly invalid. In the judgment of the Court of Criminal Appeal in Kenny (McCarthy, O’Hanlon and Lardner J.J.) it was held that the warrant was invalid. The Court directed further argument as to the consequence of this invalidity and in a careful judgment reviewing the authorities, delivered by O’Hanlon, J., it was concluded that the admissibility of the evidence was a matter for the discretion of the trial court. In the circumstances, the correct decision for a trial judge would have been to admit the evidence. Furthermore, the concept of extraordinary excusing circumstances could only be considered when the Court was of the view that a deliberate and conscious violation of the constitutional rights had taken place. That was not the case here. The application was refused but the Court also granted a certificate pursuant to s.29 of the Courts of Justice Act 1924.
17 On appeal to the Supreme Court, the Court, by a majority of three to two, allowed the appeal, refused to follow the majority judgment in the relatively recent case of The People (Director of Public Prosecutions) v Shaw  1 IR 1, preferring the minority judgment of Walsh J. in that case, and concluded that in deciding whether the violation of a constitutional right was carried out consciously and deliberately, the test was whether the act complained of was conscious or deliberate and it was immaterial whether the actor knew that what he was doing was in breach of the constitutional rights of the citizen. The merits of that analysis are a matter for another day if the issue should ever be raised in an appropriate fashion before the Supreme Court. For present purposes however it becomes important to understand what Kenny said, and decided about O’Brien.
18 One simple view advanced by the Respondent on this appeal with admirable force on this appeal, was that O’Brien no longer represented the law and had been overruled by Kenny. O’Brien had decided that the evidence had not been obtained by deliberate and conscious breach of the constitutional rights of the citizen. Kenny had decided that any search on an invalid warrant was a deliberate and conscious breach and that absent extraordinary circumstances, the evidence must be excluded. This is undoubtedly a plausible view. But it has a number of problems. If it is correct, then the majority in Kenny overruled both the reasoning and the result in O’Brien, and adopted in effect an absolute exclusionary rule expressly disapproved of by the entire Supreme Court in that case, and leading to the inadmissibility of evidence in circumstances which had been described by one member of the Court as being wrong to the point of absurdity and bringing the administration of law into a well-deserved contempt. Such a dramatic volte-face is by no means impossible, but O’Brien is a venerable decision of the Supreme Court, and there are only limited circumstances in which that Court will depart from and overrule its prior decisions. If the argument for the respondent is correct however, the majority decision in Kenny not only overruled the result in O’Brien, but did so sub silentio.
An alternative view is to apply well-worn if sometimes neglected principles of the interpretation of judgments. On this view, the critical fact is that the decision in O’Brien, (a decision which was expressly adverted to in Kenny), was clearly left intact by the judgment in Kenny. Indeed, the headnote of that decision, records O’Brien as being “followed”. If the decision in O’Brien has not been overruled by Kenny, then that can only mean that the result of that case is still correct in law and consequently that there are certain defects in warrants which will not result in the inadmissibility of evidence obtained thereunder.
19 On one view, it was not necessary for the trial court here, or indeed this Court, to seek to choose between these competing views of the impact of Kenny upon O’Brien. That is because in Director of Public Prosecutions v Balfe  4 IR 50, the Court of Criminal Appeal opted for the second interpretation of Kenny. Furthermore on the same view, it may be said that whether or not Balfe itself is correct in this reading of Kenny, is no longer important, since the proposition which Balfe drew from the competing positions and applied in that case, namely that some errors will not invalidate a warrant, is one that has now been accepted and endorsed in subsequent decisions including decisions of the Supreme Court.
20 However, this entire area is so complex, that it is not possible, or at least desirable, to resolve the case on that basis alone. Indeed, before considering the decision in Balfe, and the difficulty the trial judge had with it, it is necessary to consider a decision of the Central Criminal Court which predates it. Director of Public Prosecutions v Henry Dunne  2 IR 537, is a short but important case. It too concerned a warrant under s.26 of the Misuse of Drugs Act 1977 (as amended). The case was a consultative case stated from the District Court. The error in the warrant relied upon by the defendant was that the standard form provided for alternatives to be struck out and blanks to be filled in as appropriate. One portion provided that the alleged drug was “on any premises or other land”. In this case, the form had been completed but the words “on the premises” had been deleted so that the operative part of the sentence now read that there was “reasonable ground for suspecting that a person is in possession in contravention of the Misuse of Drugs Acts 1977 and 1984 of controlled drugs namely cannabis resin, cocaine diamorphine …. and such other drugs … other lands at 26 Rutland Avenue, Dolphin’s Barn, Dublin 8”. In a short judgment, Carney J. referred to Article 40.5 of the Constitution and the defendant’s argument that the warrant did not contain an averment which was required by s.26, namely that drugs were on any premises, or indeed on the particular premises and that such failure was fatal to the legal validity of the warrant. The prosecution’s argument was that the striking out of the words “on the premises” was clearly inadvertent and should be excused as a slip. Carney J. said at p. 540:
“Reading this warrant many times I cannot make sense of it in terms of the English language without placing reliance on the words which had been crossed out. Accordingly, I cannot find it to be an effective authority to breach the constitutional inviolability of the defendant’s dwelling house.”
22 Dunne was considered in the decision of the Court of Criminal Appeal in Director of Public Prosecutions v Balfe  4 IR 50 (Murphy, Lavan and Budd J.J.). That case concerned a warrant issued under s.42 of the Larceny Act 1916. Like Dunne, a copy of the warrant was helpfully attached to the judgment. At first glance, the warrant contained more defects than the warrant in Dunne. First, there had been a manual alteration to the warrant relating to the number of the premises. The information had related to “5 Forest Hills, Rathcoole” while the warrant had been amended from 5 to 34 so as to read “34 Forest Hills, Rathcoole” which was the address of the appellant, and also the address searched. Second, the standard form of the warrant also provided for the deletion of one or more of the options in the phrase “in his custody * or possession * or on his premises at”. No option was selected. Finally, and perhaps most significantly, the property in question, namely a video player, CD and television, had been specified in the information, but the portion of the warrant where such property could be specified had been left blank so that the operative portion of the warrant read:-
23 In the Court of Criminal Appeal there was more extensive reference to authority than appears to have occurred in Dunne. The Court was referred to and considered, O’Brien, Byrne v Grey, Kenny, The People v Shaw and Dunne. Murphy, J., at p. 56, referred to O’Brien and Kenny as “two reported decisions of the Supreme Court dealing with search warrants [which] demonstrate how different defects in such instruments can have very different consequences”. It is implicit in this approach that the Court of Criminal Appeal in Balfe accepted that both O’Brien and Kenny were still of full effect and binding upon it, and therefore required to be reconciled. If the result in O’Brien still stood, then the next step as a matter of logic was that identified by Murphy J. at page 59:-
27 The next important case in the sequence is the Supreme Court decision in Simple Imports v Revenue Commissioners  2 IR 243. In that case, a majority of the Supreme Court (Keane and Barrington JJ., Barron, J. dissenting) quashed a warrant issued pursuant to s.205 of the Customs Law Consolidation Act 1876 and s.5(1) of the Customs and Excise (Miscellaneous Provisions) Act 1988. The facts in the case were somewhat unusual in that the issue of the validity of the warrant did not arise in a trial in which evidence was sought to be admitted which had been obtained on foot of the warrant. Instead, a search had been carried out at a number of locations in Dublin, Cork and Limerick for indecent, obscene and pornographic material. Items had been seized and the applicant company commenced judicial review proceedings seeking declarations that the warrants were unlawful, void and of no legal effect and orders quashing the warrants and directing the return to the applicant of all goods seized on foot of the warrants.
28 The warrant issued under the Act of 1876 recited that the relevant officer “hath cause to suspect and doth suspect the certain goods to wit indecent and or obscene pornographic material the same being uncustomed or prohibited goods are harboured, kept or concealed in a certain place to wit …”. The 1988 Act warrant stated that the said officer “has cause to suspect and doth suspect that certain book or documents relating to transactions in contravention of the law relating to customs are kept or concealed in a certain premises or place to wit …”. The argument turned on the absence of the word “reasonable” from either warrant before the word “cause”. It was said that the warrant did not therefore disclose jurisdiction on its face. The case was somewhat unusual in that extensive evidence had been given to the District Judge about attending the relevant premises, the opinion of the relevant officer that obscene materials were contained there, and furthermore, that those materials had been imported. The majority of the Court held, however, that the warrant was invalid. Unfortunately, the Court does not appear to have been referred to either Dunne or Balfe, and accordingly, did not express any opinion on those cases, or the views expressed in Balfe as to the reconciliation of O’Brien and Kenny. Indeed, Simple Imports Limited did not involve the constitutional protection of the dwelling home since what was searched in that case, were commercial premises. Moreover, because the case arose in the context of an attempt to quash the warrant itself, rather than the admissibility of evidence, the Court did not have the opportunity of expressing any views on the question of whether such evidence would be admissible in any subsequent prosecution.
29 Director of Public Prosecutions v Edgeworth  2 IR 131 also involved a warrant under the Misuse of Drugs Act 1977, as amended. In that case, the trial judge held that the warrant was invalid, and a question of law was then referred to the Supreme Court pursuant to s.34(1) of the Criminal Procedure Act 1967. A number of issues were canvassed. First, the warrant bore the heading of “The District Court” but was issued in fact by a peace commissioner. Second, although correctly signed by the peace commissioner, the warrant did not contain on its face any statement that the peace commissioner was assigned to the County of Dublin and thus had authority to issue a warrant for the search of the relevant premises. The Supreme Court unanimously determined both points in favour of the Director of Public Prosecutions, thus effectively overruling the trial judge’s determination. Unfortunately, the official reports do not contain any argument of counsel, and the only cases mentioned in the judgment were Dunne and Simple Imports Limited. Hardiman, J. with whom the other members of the Court agreed, expressed agreement with the statement of Carney J. in DPP v Dunne and stated that he had no doubt the warrants in both Dunne and Simple Imports Limited were correctly found inadequate by the Superior Courts. However, in this case, although there were undoubtedly errors, they did not invalidate it. In relation to the first error, Hardiman, J. at p. 136 said:-
32 Hardiman J.’s reasons for rejecting the second point in Edgeworth are also instructive. The fact that the warrant did not disclose that the peace commissioner executing it had been assigned to Dublin County was not fatal. Section 88 of the Courts of Justice Act 1924 provided for the appointment of peace commissioners in each county to perform and exercise within such county, the duties and powers of a peace commissioner under the Act. If therefore, it had been established that the relevant peace commissioner had not been appointed to Dublin County, that would have invalidated the warrant in this case. But as the Court pointed out, the uncontradicted evidence was that the peace commissioner’s appointment was in respect of the relevant county. Accordingly, the Court considered it was not necessary for the county of the peace commissioner’s appointment to be stated on the search warrant even though it might be observed that the warrant, when signed by the peace commissioner, was somewhat confusingly headed “The District Court”. It was necessary to interpret this aspect of the warrant, and to consider its validity. Once that was done it could be said that the warrant made sense as a matter both of language and law.
33 The next significant case was DPP v David McGoldrick  3 IR 123. There the Court of Criminal Appeal (Denham, Herbert and Gilligan J.J.) had to consider a warrant issued pursuant to s.140 of the Copyright and Related Rights Act 2000. In that case there were a number of errors in the printed form used for both the information and the search warrant. In particular, the references to s.143 of the Act of 2000 (which provided for the issue of the search warrant on certain conditions) and s.140 (which created the statutory offence) were cited incorrectly. Thus, the warrant recited that there was reasonable ground for suspecting that infringing goods were to be found in premises contrary to s.143 of the Copyright and Related Rights Act 2000. Section 143 however creates no offence. By the same token, the information recited the commission of an offence contrary to s.143 (the same error) and an application for a search warrant pursuant to s.140(1) which latter section creates an offence but is no authority for the issuance of a search warrant.
34 The Court referred to the provisions of Article 40.5 of the Constitution and the seminal statement in Simple Imports that the power to enter premises by authorised forcible invasion of a person’s property, must be used in defined circumstances, and therefore that the Court must be concerned to ensure that “the conditions imposed by the legislature before such powers can be validly exercised or strictly met”. Applying that test, the Court of Criminal Appeal recited a number of errors in the case, including its conclusion that the provisions set out by the legislature were not “strictly met” in accordance with the test in the language of Simple Imports, and therefore, at p. 133, that “the court is satisfied that these are not to be described as mere technical errors unlikely to mislead anyone affected by the warrant; the warrant on its face does not accurately state the basis upon which it was purportedly issued”. The application was therefore allowed.
35 Two more recent cases also require consideration. In The People (Director of Public Prosecutions) v Massoud  IECCA 94, (Unreported, Court of Criminal Appeal, Kearns J., 24th July, 2009), the Court of Criminal Appeal (Kearns, Budd, Hanna, J.J.) considered a production order made under s.63 of the Criminal Justice Act 1994 as amended by s.1 of the Disclosure of Certain Information for Taxation and Other Purposes Act 1996. The production order showed that it was signed on the 25th October, 2003. However, the demand made pursuant to the production order was made on the 24th October, 2003. There was uncontradicted evidence however that the order was in fact granted on the 24th October, but that through a simple clerical order the date had been incorrectly typed on the order as being the 25th October, 2003. In the circumstances of the case, and in particular, the fact that the relevant documents were produced only on the 30th October, 2003, the Court was satisfied that “there was nothing misleading, unclear or ambiguous on the face of the order for the search warrant and the simple clerical error in the date was one of no material substance”.
36 Finally, in the The People (DPP) v McCarthy  IECCA 89, (Unreported, Court of Criminal Appeal, Macken J., 12th October, 2010), the Court of Criminal Appeal (Macken, Budd, O’Keeffe, J.J.) had to consider an appeal by the DPP under s.9 of the Criminal Justice Act 1999 in respect of a search warrant under the Misuse of Drugs Acts 1977-1984. The defect on the warrant relied upon by the defendant, was similar in one respect to that which had been referred to in Edgeworth. The relevant search warrant had been granted by a peace commissioner, but like that in issue in Edgeworth, had been headed “The District Court”. In addition to that however, although it was signed by a peace commissioner, the signature was above a legend “Judge of the District Court assigned to the said District”.
The Court reviewed a number of the authorities referred to here including Simple Imports, Edgeworth, Dunne, and Balfe. It is of some significance that the Court cited with approval the judgment of Murphy J. in Balfe, and appeared to endorse the distinction between errors in jurisdiction and those which were mere errors. The Court emphasised that portion of the Balfe judgment where it was stated, that if “the search warrant is made without authority, then it has no value in law, however innocent the mistake when granting the same or however apparently plausible the document issued”.
37 Considering the judgment in Edgeworth, the Court pointed out that in that case there was a finding, on p. 131, that the form of the warrant “did not mislead where the status of the person issuing the warrant appeared clearly on its face, and did not, therefore effect the validity of the warrant”. The Court referred to the comments of Professor Walsh in his book Criminal Procedure where referring to Edgeworth he observed that not every error on the face of a warrant will render it void, but rather only those that go to the heart of the jurisdiction to grant the warrant.
However, the Court considered that since the search warrant permitting the search of a dwelling home had to be strictly construed, it was satisfied that the Circuit Court had been correct to find that the error on the face of the search warrant was a fundamental error. The status of the party issuing a warrant was, the Court considered, a basic requirement of the jurisdiction to issue it. The warrant therefore disclosed no proper jurisdiction in law and was wholly misleading.
38 In the course of the judgment, the Court in The People (Director of Public Prosecutions) v. McCarthy also helpfully identified a number of principles which it considered could be deduced from the earlier case law:-
(b) This cautionary approach is particularly enjoined when the search warrant is in respect of the dwelling house of a citizen, in light of the recognition granted to such property under the Constitution;
(c) Although search warrants should be prepared carefully, not every error in such a warrant will, by virtue of the same, lead automatically to the invalidation of a warrant;
(d) In particular where the substance of the warrant, as opposed to its form, is not open to objection, the invalidation of the warrant will not necessarily ensue.
(e) The nature of the error, or omission, must be scrutinised by the courts to see whether it is of a fundamental nature, including an error going to jurisdiction. Several factors may be taken into account, including whether the errors are mere mis-description, whether it is likely to mislead, whether it undermines the apparent jurisdiction to issue it, according to the warrant on its face, and such matters, before the courts will find, in an appropriate case, that it should be considered invalid.
(f) It is not possible in relation to non-substantive errors, that is to say, errors which do not affect the substance of the legislative requirements found in the body of the warrant itself, to say that they will never lead to the invalidation of a search warrant, due to the wide variety and nature of errors which may occur.”
39 Nevertheless, given the range of different outcomes in the cases, it is easy to sympathise with trial courts faced with this apparent wilderness of single incidences. It must be recognised that the outcome of cases on search warrants are not easily predictable. However, with a little perspective, a pattern does emerge from the cases, and it is possible to detect a broad principle with which the decisions can be said to have complied, or can be said to have complied, even acknowledging that this approach still leaves considerable room for differences of opinion on the outcome of individual cases.
40 It is now clear that a mere error will not invalidate a warrant, especially one which is not calculated to mislead, or perhaps just as importantly, does not mislead. Indeed, the fact that warrants perfectly regular on their face may be invalidated if it can be demonstrated by evidence that there was no jurisdiction to issue them, demonstrates that error alone is not the critical factor. This latter fact illustrates the important feature that those warrants which have been found invalid are most clearly those where there was no jurisdiction to issue the warrant because a statutory precondition had not been fulfilled (Byrne v Grey  IR 31, DPP v Kenny  1 ILRM 1) or where the warrant on its face did not show that the preconditions had been satisfied (Simple Imports). In such cases, the warrant has no validity in law, however, innocent the mistake (Balfe, DPP v McCarthy), and the entry on to the premises consequent on the warrants, even if permitted by the occupier, is illegal. If the entry is of a dwelling home, the entry will be unconstitutional, and any evidence obtained must be excluded absent extraordinary excusing circumstances (DPP v Kenny).
41 More difficulty arises with those cases which appear to deal only with errors in the body of the warrant. It is now quite clear that although a warrant should be prepared with care, not every error will lead to invalidation of the warrant. In particular, where the substance of the warrant as opposed to the form is not open to objection, invalidity will not necessarily ensue. In such cases, the nature of the error or omission must be scrutinised to see if it is of a fundamental nature. Among the factors which may be taken into account are whether the error is a mere misdescription and whether it is likely to mislead. These statements of principle are identified in McCarthy, as being capable of being deduced from the earlier decisions including, importantly the Supreme Court decision in Edgeworth. This approach which identifies circumstances which error will not invalidate the warrant, explains the outcome of cases such as Balfe, Edgeworth itself, and perhaps Massoud.
42 There remains a difficult group of cases where errors on the warrants have been held sufficient to invalidate the warrant. These include Dunne, McGoldrick and McCarthy. It is significant that the earliest of these cases, Dunne, was analysed by Edgeworth as a case in which the warrant did not satisfy the statutory requirement and was therefore invalid. Both McGoldrick and McCarthy expressly apply the test adopted in Simple Imports, namely that the Courts must ensure that the “conditions imposed by the legislature … are strictly met”. In other words, these cases are not seen as cases of error or even gross error per se. They are seen as cases which are analogous to the Byrne v Grey, Kenny, and Simple Imports line of authority, where the error results in a lack of jurisdiction or a failure to demonstrate compliance on the face of the warrant with statutory preconditions for the grant of a valid warrant.
43 This broad distinction first advanced in Balfe, is sufficient to describe those cases where warrants have been held valid or invalid as the case may be but it cannot fully explain them, still less lead to a perfectly predictive test for the validity of warrants. There remains considerable scope for disagreement as to whether an error goes to jurisdiction or demonstrates non compliance with the statutory condition, or is a mere misdescription. This is particularly so because warrants are formal documents designed to comply with a statutory formula. A mistake in such a document can often be characterised as a failure to satisfy a requirement of the statute. But even in those cases where the Courts appear to take a strict approach to errors which may be grammatical, syntactical or in the completion of a standard form, the test is not simply whether there has been an error, but rather whether the error makes the warrant unintelligible.
44 Faced with the difficulty posed by these decisions, some assistance may be gained by the rules of precedent. Indeed the trial judge here had regard to this when he suggested that while Balfe might cover the case, the defence case was that Balfe had been superseded by the subsequent authority and in particular the approval of the Dunne case in the Supreme Court decision in Edgeworth which was binding upon him. On a review of the decisions it is clear that this analysis of the precedent was insufficient and indeed incorrect. The decision in Balfe is not incompatible or irreconcilable with Dunne: rather, Balfe expressly addressed the decision in Dunne which preceded it, and distinguished it on a basis accepted and applied subsequently. Edgeworth did approve the result in Dunne, but that cannot be taken as an implicit disapproval of Balfe still less a reversal of it. At the most basic level Balfe was a decision of the Court of Criminal Appeal which had not been overruled and was thus binding on the trial court and indeed this Court. On that basis alone, if the trial court considered as it did, that the case came within the principle of the decision in Balfe, then Balfe was a valid, and arguably binding precedent.
45 It is tempting to decide this case on a more formal application of the doctrine of precedent and to conclude that if the trial judge decided that this case was governed by Balfe then the warrant should be upheld . However, the case law is so complex that the Court does not think that this case can be properly determined on that basis alone. It truth it would have been possible for the trial judge to identify some decisions, binding upon him, which would have appeared at least to support the invalidation of the warrant. Accordingly, it is necessary to address the question of whether the warrant is valid or invalid in the light of the principles and guidance to be gleaned from the authorities.
46 First, it is clear that this case does not fall within the Byrne v Grey, Kenny or Simple Imports line of authority. There is no question of any failure to satisfy a statutory precondition either on the case of the warrant or indeed in the issuance of it. A person with no knowledge of the geography of this area of Dublin but with a comprehensive knowledge of the law relating to search warrants would find nothing irregular in this warrant. On the face of it, it correctly satisfies the statutory conditions imposed by s.26 of the Misuse of Drugs Act 1977 (as amended) for the issuance of warrants. Undoubtedly the warrant contains a single omission which can be characterised as an error. The question is whether that error is one which can be said to invalidate the warrant being an error which on analysis goes to jurisdiction.
47 Taking a simple approach to this warrant, it appears that it is much closer to the Balfe/Edgeworth line of authority rather than the jurisdictional error exemplified by Dunne. However the contrary argument made on behalf of the Respondent in this case was attractively simple, and forcefully put. There was, it was said, no premises with the name “4 Marrowbone Close”. That indeed was the burden of the Ordnance Survey evidence which the respondent proposed to call until it was conceded. There was thus no “4 Marrowbone Close, Dublin 8”. It followed that the warrant was issued for a fictitious address, an address that did not exist. In that respect it might just as well have been blank. In those circumstances it was argued that s.26 had indeed not been satisfied since the section requires that there be evidence that drugs are to be found on “any premises”. Here the premises identified simply did not exist. Thus it had not been shown that the drug was on “any premises”, which it was said was a requirement of the statute.
48 It must be acknowledged that this argument has force. But it seems to take an unnecessarily artificial approach to the interpretation of the warrant. Everything in this argument depends on the characterisation of the warrant as being for a premises that does not exist. It seems that the more natural way of approaching the warrant is to ask if it adequately describes a premises that does exist – namely the premises searched. What was involved here can be properly described as a mere misdescription. Indeed, it can only be described as a misdescription in the sense that it is not a complete and full address. It does, in the Court’s view, describe these premises, although it could do so more completely. But in the words of the decided cases, it was not calculated to mislead, and perhaps just as tellingly, did not mislead. If before the execution of the warrant an issue had arisen as to what premises was described in it, the Court does not believe that anyone knowing of the existence of 4 Marrowbone Lane Close, whether postman, taxi driver, a member of the Garda Siochana or occupier, would have had difficulty in pointing out the premises. In that sense it is telling that the interpretation of the warrant advanced by the Respondent is that it must be read as authorising the search of nowhere – a premises that simply does not exist. It seems more natural to understand the warrant as being directed to premises which do exist and to see this as an adequate, if imperfect, description of it. Taking the three words that make up the full address of the premises, there is no doubt that the word omitted, “Lane”, is the least important in identifying these premises. “Marrowbone” identifies the cluster of streets which are in Dublin 8 and “Close” the particular street. If the choice is therefore to understand the word as referring, albeit imperfectly and incompletely, to the premises searched, or as referring to nowhere, then the conclusion seems obvious and even unavoidable.
49 A search warrant is a legal document and in that sense akin to contracts, wills, statutory instruments, Acts of the Oireachtas or even a constitution. While each of these has its own legal environment, and therefore conventions for its comprehension and interpretation, each is a document, and as such an effort to communicate, made by an author, or group of authors and directed to a specific audience, whether an individual, a group, or sometimes the public in general. In the case of a search warrant, it is a document that authorises its bearer to enter premises, including a dwelling home, by force if necessary. It also commands the occupier to permit entry. As such, it is a document which should be clear and capable of being understood by the person to whom it is granted and by the occupier of the premises when it is presented to him or her on a doorstep, without warning and almost always in circumstances of stress and alarm. A warrant should not require debate, discussion or repeated reading, to puzzle out ambiguities and possible meanings. It must also clearly demonstrate the jurisdiction under which it is granted, something which it must be acknowledged is not always conducive to clarity. All of this is entirely consistent with the approach taken by the Courts in all the cases: to scrutinise warrants carefully and to demand high levels of accuracy.
50 However, in scrutinising a warrant, a court should not approach a warrant as if it were an exotic artefact, capable of being viewed only under a microscope, of which nothing is known, and about which no assumption can be made. The approach of the Court is searching and even sceptical, but not one of deliberate, unreasonable, and unreasoning ignorance which is blind to the communication the document seeks to make.
51 In approaching any document or indeed any piece of communication, it is necessary to put it in its factual context. Where the document is legal, that may also involve its legal context. That will involve deploying knowledge which is common to any anticipated reader of the document, such as conventions of language, or, may involve receiving evidence as to specific matters known to the particular audience. This is an exercise which is carried out every day in the communication between individuals, and rarely requires to be articulated. To take a simple example, a reader of this warrant would be assumed to know the conventions of the English language and the general approach to addresses such as, for example, the organisation of the City of Dublin in the postal districts so that the words “Dublin 8” could be understood. An example in a specifically legal context, is perhaps that which arose in the Edgeworth case where the description of a peace commissioner was to be understood against the general statutory background as to the powers and appointment of such officers.
52 A useful example arose in the course of argument in this case. Counsel for the Respondent was asked whether any defect, at least in an address, would invalidate a warrant. What, for example, if the warrant in the O’Brien case had read “118 Captin’s Road, Crumlin, Dublin 8”. Would such a warrant have authorised a search of 118 Captain’s Road? Counsel recognise the difficulty posed by this example. If such a warrant was invalid, then it would appear that the Respondent’s argument involved contending for an absolute position that any defect, at least in an address on a warrant, was fatal. This would be unattractively absolute, and would appear inconsistent with the authorities. On the other hand, if it was conceded that such a warrant was invalid it would be necessary to explain what principle would rescue the hypothetical warrant, but not the warrant in this case. Counsel eventually argued that a warrant addressed to 118 Captin’s Road, would be valid because it was a clear typographical error for “Captain”. But that very explanation involved deploying a range of information which is assumed would be common to someone interpreting that warrant in the light of the O’Brien case. It would involve knowing that there was indeed a Captain’s Road, Dublin 8, that there was no Captin’s Road there, that misspelling is not an uncommon feature of documents, and that both the word Captain and Captin, if spoken would sound the same. All this would lend further support to the initial suggestion of a simple misspelling. This reasoning process is rarely articulated, yet it is the business of everyday communication. The fact that the communication being received and interpreted is a legal document and more particularly a warrant, should not mean that the reader is required to disable those aspects of knowledge and reasoning which allows him or her to understand any other form of communication. But if such a warrant would be valid (and the Court considers that counsel was correct that it would be) then that conclusion demonstrates that the original argument proffered on behalf of the Respondent cannot be correct or at least sufficient, since it could be said with equal force that 118 Captin’s Road was a fictitious address, a non existing premises and accordingly that the statutory condition of identifying a premises had not been complied with.
53 In this case it seems that the point argued most forcibly on behalf of the Respondent - that there was no address in Dublin or elsewhere, of 4 Marrowbone Close - tends ultimately against the respondent rather than assisting him. Once it is acknowledged that this fact would be known to the potential addressees of the warrant (the executing gardaí and the occupiers of the premises) and account is taken of the fact that it is rare for gardaí go to the bother of seeking, and even rarer for the District Court to grant, a warrant for fictitious addresses, then that only leaves the present premises as the likely subject of the warrant. Once it is hypothesised that the warrant may apply to the existing premises, that conclusion is reinforced by the fact that the omission of the word “Lane” is an understandable one. The word Close is likely to be the most important part of the address and it would not be surprising if gardaí or other persons reasonably familiar with the area described that street as the Close, or/and somewhat inaccurately as Marrowbone Close. This is a very laborious way of explaining a thought process that is almost instantaneous in ordinary life. If the address was shown to an individual reasonably familiar with the area, the Court does not think they would have had any difficulty in directing someone to 4 Marrowbone Close. If this is so and is true for a postman, taxi driver or member of the gardaí, a court should not find an insuperable difficulty in understanding the warrant, and an appropriate demand for clarity and care is not required to become deliberate obtuseness.
54 This conclusion appears to this Court to accord with principle. It is important that a court should insist upon accuracy, particularly in addresses in relation to warrants since they authorise forcible entry of premises including dwelling homes. But invalidation of every warrant on the ground of error and description does not seem to serve any advance purpose in respect of the Constitution or even of proper grammar, usage, or clarity in communication. As the trial judge here observed, this is a mistake which is regularly made in everyday life. It is only necessary to consider the variety of texts which go through professional editing processes, such as newspapers, books, road signs, Acts of the Oireachtas and even sometimes judgments in the Official Reports, to recognise that some level of error is almost unavoidable. Furthermore, particularly in so long as Irish law maintains an almost absolute exclusionary rule for evidence obtained as a result of an illegal and therefore unconstitutional search of a dwelling house, courts should be slow to invalidate warrants on the grounds of typographical grammatical, or transcription errors, which are neither calculated to mislead, nor in truth do mislead, any reasonable reader of the words.
Finally, it should acknowledge that counsel for the prosecution drew our attention to the provisions of s. 14 of the Criminal Justice (Surveillance) Act 2009 which provides that information obtained as a result of surveillance carried out under an authorisation granted under the Act may be admitted in evidence notwithstanding errors or omissions in the authorisation. This is an interesting provision, but it does not shed much light on the position at common law, and has not yet been the subject of authoritative interpretation and application. In the circumstances the Court has treated it as a neutral factor, and has focussed on the analysis of the validity of the warrant in the light of the decided cases. On that basis, for the reasons set out above, the appeal by the prosecutor in this case must be allowed.