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Cite as: [1998] 4 IR 76, [1996] IEHC 5

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Farrelly v. Devally [1996] IEHC 5; [1998] 4 IR 76 (19th July, 1996)

THE HIGH COURT

JUDICIAL REVIEW

No. 236 J.R. 1995

BETWEEN

KENNETH FARRELLY

APPLICANT

AND

HIS HONOUR JUDGE LIAM DEVALLY AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

Judgment of Mr. Justice Morris delivered the 19th day of July, 1996 .

1. The Applicant was convicted in Kilmainham District Court on the 8th March, 1993 of three offences as follows:

(a) On the 8th March, 1992 at Ballyfermot Road, Dublin, he unlawfully obstructed one Garda Anita Connolly by refusing to allow himself to be searched contrary to Section 21(4) of the Misuse of Drugs Acts, 1977/1994 as amended.

(b) That on the same occasion he unlawfully assaulted Garda Anita Connolly, a Garda in due execution of her duty contrary to Section 12 of the Prevention of Crimes Act, 1871, and

(c) That he did on the same occasion unlawfully assault one Donal Brazel, a Garda in the due execution of his duty contrary to Section 12 of the Prevention of Crimes Act, 1871.

2. From these convictions the Applicant appealed to the Circuit Court and the matter came on for hearing on the 26th June, 1995. The first named Respondent affirmed the said convictions and varied the amount of the fine for obstruction by reducing the amount from £160 to £20.

3. By Order of the 9th October, 1995 the Applicant was given leave to apply for an Order of Certiorari by way of application for Judicial Review in respect of the Order of the first named Respondent on the grounds that the first named Respondent erred in law in interpreting the provisions of the Misuse of Drugs Acts, 1977/1984 thereby resulting in the wrongful conviction of the Applicant and, accordingly, acted in excess of jurisdiction.

4. Leave was also given on the basis that the first named Respondent erred in law in refusing to dismiss the charges on the grounds that they were bad for duplicity. However, while this ground was not abandoned, no submissions were made in support of it and, accordingly, I confine my judgment to the first of these two grounds.

5. In order to identify the grounds upon which the relief is sought, it is necessary to set out in some detail the facts upon which this application is based.

6. These facts emerge from Affidavits sworn and filed in this matter. On the date of the alleged offence, namely, the 8th March, 1992, Garda Anita Connolly and Garda Brazel observed and monitored the movements of known drug addicts from an unmarked Garda car at a point near the shopping centre in Ballyfermot. While they were doing this the Applicant stopped his car close by. He was approached by Garda Connolly and Garda Brazel. Garda Connolly produced her identification and informed him that she was a member of An Garda Siochana and that he was being detained for the purposes of a search under the Misuse of Drugs Acts, 1977/1984 and that he and his car would be brought to Ballyfermot Garda Station for the purposes of this search.

7. The powers of detention and search under the Misuse of Drugs Acts are contained in Section 23 of the 1977 Act as amended by Section 12 of the 1984 Act.

8. Section 23 of the 1977 Act provides that a member of An Garda Siochana who with reasonable cause suspects that a person is in possession in contravention of this Act of a controlled drug may without warrant;

(a) search the person and if he considers necessary for that purpose detain the person for such time as is reasonably necessary to make a search,.

(b) search any vehicle, vessel or aircraft in which he suspects that such drug may be found and for the purpose of carrying out the search may, if he thinks fit, require the person who for the time being is in control of such vehicle or aircraft to bring it to a stop and when stopped to refrain from moving it, or in any case where such vehicle, vessel or aircraft is already stationery, to refrain from moving it.

9. Accordingly, the section empowers a member of An Garda Siochana to search "on the spot". Section 12 of the Act of 1984 empowers the Gardai to search the suspect or the vehicle in the Garda Station. It provides:

"1(a) Where a member of An Garda Siochana decides to search a person under this section he may require that person to accompany him to a Garda Station for the purpose of being so searched at that station.

1(b) Where a member of An Garda Siochana decides to search a vehicle, vessel or aircraft under the section he may as regards the person who appears to him to be the owner or in control or charge for the time being of the vessel, vehicle or aircraft make one or more of the following requirements:

(a) Require such person pending the commencement of the search not to remove from the vehicle, vessel or aircraft as may be appropriate any substance, article or thing.

(b) In case the decision relates to a vehicle and the place at which he finds the vehicle is in his reasonable opinion unsuitable for such search, require such person forthwith to take the vehicle or cause it to be taken to a place which he considers suitable for such search and which is specified by him.

(c) Require the person to be in or on or to accompany the vehicle, vessel or aircraft as may be appropriate for so long as the requirement under this paragraph remains in force."

10. The section goes on to provide that where there is a failure to comply with the requirements made under the section then the member of An Garda Siochana may arrest the person without warrant and may take the vehicle to the place that he considers suitable. The section also creates it an offence to fail to comply with the provisions of the section.

11. It is submitted by Counsel for the Applicant that there is no power vested in a member of An Garda Siochana to bring a person or a vehicle to a Garda Station unless he first of all requires the person to be searched to accompany him to the Garda Station or requires him to take the vehicle to the Garda Station as provided for in Section 12 of the 1984 Act subsections 1(a) and 1(b) and there is a failure to comply with this request.

12. It is submitted that since no such request was made, the Gardai had no authority to remove the Applicant or his vehicle to the Garda Station and since they were not acting in conformity with the provisions of the Act they were not acting in the execution of their duty and the Applicant was fully entitled to resist them as he did.

13. I have no difficulty in accepting Counsel's proposition that the powers conferred by the Oireachtas on the Garda Siochana are a significant interference with the liberty of the citizen and I accept as a correct statement of the law the statement of Mr. Justice O'Hanlon in D.P.P. -v- Rooney, 1992 I.R. p7 at p10 when he was considering the powers to "stop and search" vested in the police force by Section 29 of the Dublin Police Act, 1842 when he said:

"Although less drastic in its effect than the power to arrest, such action on the part of the police authorities does nevertheless amount to a substantial and significant interference with the liberty of the subject and it appears to me that the same principles which underlie the decisions in Christie -v- Leachinsky, (1947) AC 573 and The People (The Attorney General) -v- White , 1947 I.R. 247 must apply with equal force in this situation also, if the constitutional guarantees of liberty of the person are to be adequately defended and vindicated. Consequently I would hold that before the power of search given by Section 29 of the Dublin Police Act, 1842 already referred to can now be lawfully exercised, the suspect is entitled to be informed of the nature and description of the statutory power which is being invoked."

14. It seems clear that the Courts require a strict compliance with the provisions of the Section. In The People (At The Suit of The Director of Public Prosecutions) -v- Sean Boylan, 1991 1 I.R. 477 the Court of Criminal Appeal draws distinction between a requirement that the person "be in or on or accompany the vehicle, vessel or aircraft as the case may be appropriate for so long as the requirements under the paragraph remain in force" and the requirement that "the applicant go to a shed down at the Alexandra Road Ferry Port there to meet if not be interviewed by or questioned by a member of An Garda Siochana".

15. The central question in this case is whether the matter is one which it is proper for the Court to review by way of Judicial Review and this involves considering whether the first named Respondent acted within his jurisdiction in deciding the issues before him as he did.

16. I accept Mr. Justice Henchy's statement in The State (Holland) -v- Kennedy , 1977 I.R. 193 as correctly summarising the law when he says at p. 201

"But it does not necessarily follow that a court or tribunal vested with powers of a judicial nature which commences a hearing within jurisdiction will be treated as continuing to act within jurisdiction. For any one of a number of reasons it may exceed jurisdiction and thereby make its decision liable to be quashed on Certiorari. For instance, it may fall upon an unconstitutionality or it may breach the requirements of natural justice or it may fail to stay within the bounds of the jurisdiction conferred in it by statute."

17. There can be no doubt that the first named Respondent had jurisdiction to embark upon the consideration of this District Court Appeal and what the issue comes down to is a consideration of whether his decision in the case was so obviously incorrect as to deprive him of jurisdiction. Put another way, this Court has to consider whether in the words of the Law Lords in Anisminic Limited -v- Foreign Compensation Commission , 1969 2 AC 147 approved by McMahon J. in The State (Cork C.C.) -v- Fawsitt, High Court 13th March, 1981 there has been "an extreme example of an error of law".

18. It appears to me that what this Court must consider is whether the facts of the case as presented to the first named Respondent could under any circumstances have justified the first named Respondent in reaching the decision he did. If there is no basis upon which he could have been justified then this Court should hold that there was a jurisdictional error. If there was a basis upon which he would have been justified in holding as he did it should not intervene. In John V. Lennon -v- District Judge Clifford and D.P.P. , 1993 ILRM 77 Mr. Justice O'Hanlon restates with approval Lord Brightmans speech in Chief Constable of North Wales Police -v- Evans , 1982 3 AER 141 and reviews other authorities and concludes with the following statement:

"The general tenor of the decisions is that the High Court is not available as a Court of Appeal from decisions of other tribunals except where it is given such a function by statute and that the scope for challenging the validity of Orders made by lower Courts by way of judicial review proceedings is confined to those cases where reliance can be placed on want of jurisdiction or excessive jurisdiction; some clear departure from fair constitutional procedures; bias by interest; fraud and perjury; or decisions containing an error of law apparent on the face of the record."

19. In the present case, Garda Connolly having approached the Applicant identified herself as a member of An Garda Siochana and told him that he was being detained under Section 23 of The Misuse of Drugs Act, 1977/1984. She informed him that she had evidence of a confidential nature in relation to the Applicant and she informed him that both he and his motor car would be brought to Ballyfermot Garda Station for the purpose of being searched. At this stage the Applicant assaulted her and Garda Brazel.

20. Of the utmost importance in my view is the fact that no steps whatever had been taken towards either bringing the Applicant or his motor car to the Garda Station. All that had happened was that he was told that he and the car would be taken there for the purposes of a search. He was not told how it was proposed to achieve that objective. In particular he was not "required" to bring the car to Ballyfermot.

21. It appears to me that if the submissions made on behalf of the Applicant are correct in this case then by merely informing a suspect of the proposal of the Gardai, then if these proposals failed to measure up strictly to the requirements of any given legislation, irrespective of whether the guards put these proposals into effect or not, would have the effect of depriving the guards of authority. I have a considerable doubt that this proposal can be correct. If one takes, for example, a situation where a suspect is informed by a guard that he proposes to take a statement from him and then when the preparations are made for the taking of the statement the guard administers a full and satisfactory caution so as to ensure to the Court's satisfaction that the suspect knows it is unnecessary for him to make a statement and the Court is satisfied that the statement is entirely voluntary, can it automatically be said that the statement is inadmissible simply because the Garda indicated his intention and because the caution was administered later in the transaction. Similarly, if a Garda informs a driver that he proposes to breathalyse him in advance of going through the appropriate preliminary procedures which would render such a test lawful, can it be said that this step automatically invalidates the test?

22. I am satisfied that if the Gardai had embarked upon a course of conduct in the furtherance of bringing the Accused and his car to the Garda Station without complying with the requirements of the section then the submissions made on behalf of the Applicant would be well founded. However, on the facts this does not appear to be the case.

23. The significance of the views which I express above is that these or some similar views may well have been present in the mind of the first named Respondent at the time when he reached his decision. If so, it appears to me that his determination of the issues in the case fell within his jurisdiction and in those circumstances it would be improper for this Court to interfere.

24. Accordingly, I refuse the relief claimed.