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Cite as: [1999] 2 IR 16, [1999] IESC 27, [1999] 2 ILRM 421

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The People ( D.P.P.) v. Owens [1999] IESC 27; [1999] 2 IR 16; [1999] 2 ILRM 421 (16th February, 1999)

AN CHÚIRT UACHTARACH

(F)

THE SUPREME COURT

Hamilton C.J,

O'Flaherty J.,

Denham J.,

Barrington J,

Keane J.,

(101/98)

BETWEEN:

IN THE MATTER OF THE CRIMINAL PROCEDURE ACT, 1967

AND IN THE MATTER OF THE REFERENCE OF A QUESTION OF LAW TO THE

SUPREME COURT FOR DETERMINATION

AND IN THE MATTER OF THE TRIAL OF

THE PEOPLE AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

.v.

DAVID OWENS

Respondent

[Judgments by O’Flaherty J. and Barrington J.; Hamilton C.J., Denham J. and Keane J. agreed with Barrington J.]

Judgment delivered on the 16th day of February, 1999, by O’Flaherty J.

1. I agree with the judgment of Barrington J. on the answer to the question that has been referred to the Court.

2. However, since I believe that the trial should not have been halted on that ground, I add these words. It seems to me that the search warrant was entirely irrelevant in the circumstances of this case. Nothing was found as a result of the search. The gardai must also be taken to have gone to the house with the intention of arresting the respondent on suspicion of felony. If they had found something as a result of the search that might have strengthened

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their case and solidified their suspicion, but clearly the gardai were entitled to act on the suspicion that they had already formed.

3. It is so that they gained entry to the house on producing the search warrant but they would have been entitled to enter the house, peaceably and without force in any event, to effect the arrest. There was nothing to suggest that there was anything defective about the warrant or that it was used in any mala fide way. I do not know of any statement of law that says the gardai are not entitled to go to a person’s dwellinghouse to effect an arrest providing they have the requisite suspicion. On the contrary, the old case of Davis .v. Russell [1829] 5 Bing. 354 decides that the police are so entitled to act. It was an action brought by the plaintiff, an elderly woman, who proved that between 10.00 pm and 11.00 pm at night constables, without producing any warrant, took her from her bed at her lodgings in Cheltenham, and conveyed her to prison where she remained until the next morning when she was brought before the magistrate upon a charge of theft, which was ultimately dismissed. Best C.J. recounts (at p.3 63):-

“It has been further contended, that without a warrant from a magistrate a constable has no right to apprehend upon suspicion, unless there be danger of escape if he forbear to apprehend. The law, however, is not so. For though a private individual cannot arrest upon bare suspicion, a constable may. This has been decided in so many cases, that it is unnecessary to refer to them;

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and unless the law were so, there would be no security for person or property."

Later, at p. 365 he said:-

“It has further been insisted, that, at all events, an undue degree of coercion was resorted to; that the plaintiff ought not to have been apprehended at night, or compelled to go from her home. But what was the constable to do? Was he to go home? or to watch the plaintiffs house all night? ...if the plaintiff had escaped he would have been responsible. A person in his situation has little discretion left to him; if a charge be made he must act; and the defendant would not have been justified if, after the information he had received, he had not gone that night to the plaintiffs house:

he used no unnecessary violence; he did not break the door: and he was bound to make the arrest. The case has been ably argued, and is of great importance. It is important that constables should not abuse their authority, and equally so that they should not be discouraged in the due discharge of their duty. We cannot uphold the notion that a constable is not permitted to go into a house at night to apprehend a person suspected. Severity, indeed, is not necessary, and parties charged should be treated according to their condition...”

4. How does that old law align with our constitutional protections for the dwelling? The answer is provided in the case of The People (Attorney General) . v. Hogan I Frewen 360 , where the question arose as to whether a

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member of the garda was entitled to go to the accused’s caravan when he had a suspicion that the accused had committed a felony (although as it happened the accused was not in the caravan when he went there). Kenny J., delivering the judgment of the Court of Criminal Appeal, said:-

“The guarantee [in Article 40.5 of the Constitution] is not against forcible entry only. The meaning of the article is that the dwelling of every citizen is inviolable except to the extent that entry is permitted by law which may permit forcible entry.

The guard had not a warrant which authorised him to arrest the accused or to search the caravan and he had not implied permission to enter it. As a guard he had authority to arrest the accused without having a warrant if a felony had been committed and if he had reasonable grounds for suspecting that the accused had committed it. He was investigating a felony, breaking and entering, and he entered the caravan to arrest the accused for this crime. The Court is of opinion that a guard has authority to enter a dwelling if he does so to make an arrest which the law permits. The entry was therefore authorised by law and was not a breach of the accused’s constitutional right.”

5. While the case was appealed to the Supreme Court, and the appeal was successful, it was on a point not germane to anything that has come in for

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consideration in this case. See, too, The People (Director of Public Prosecutions) .v. McCann (C.C.A. 11th March, 1998; unreported ).

6. The matter of arrest on suspicion is now regulated by s. 4 of the Criminal Law Act, 1997, which provides:-

“(1) Subject to subsections (4) and (5), any person may arrest without warrant anyone who is or whom he or she, with reasonable cause, suspects to be in the act of committing an arrestable offence.

(2) Subject to subsections (4) and (5), where an arrestable offence has been committed, any person may arrest without warrant anyone who is or whom he or she, with reasonable cause, suspects to be guilty of the offence.

(3) Where a member of the Garda Síochána, with reasonable cause, suspects that an arrestable offence has been committed, he or she may arrest without warrant anyone whom the member, with reasonable cause, suspects to be guilty of the offence.

(4) An arrest other than by a member of the Garda Síochána may only be effected by a person under subsections (1) or (2) where he or she, with reasonable cause, suspects that the person to be arrested by him or her would otherwise attempt to avoid, or is avoiding, arrest by a member of the Garda Síochána.

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(5) A person who is arrested pursuant to this section by a person other than a member of the Garda Síochána shall be transferred into the custody of the Garda Síochána as soon as practicable.

(6) This section shall not affect the operation of any enactment restricting the institution of proceedings for an offence or prejudice any power of arrest conferred by law apart from this section.”

“Arrestable offence” is defined in s. 2 to mean:-

“an offence for which a person of full capacity and not previously convicted may, under or by virtue of any enactment, be punished by imprisonment for a term of five years or by a more severe penalty and includes an attempt to commit any such offence.”

7. I would wish, for my part, to prevent any misapprehension about the scope of what we were asked to decide in this reference. I would hold that the learned trial judge erred in ending the trial at the stage that he did. The arrest of the respondent was valid and, therefore, his detention was in order. It would be wrong if, in the future, trials were unnecessarily halted on unsustainable grounds.

Judgment 271

JO’F - DO’C

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THE SUPREME COURT

Record No. 101/98

Hamilton, C.J.

O’Flaherty, J.

Denham, J.

Barrington, J.

Keane, J.

IN THE MATTER OF THE CRIMINAL PROCEDURE ACT, 1967,

and

IN THE MATTER OF THE REFERENCE OF A QUESTION

OF LAW TO THE SUPREME COURT FOR

DETERMINATION

and

IN THE MATTER OF THE TRIAL OF THE PEOPLE AT THE

SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

DAVID OWENS

JUDGMENT of Mr. Justice Barrington delivered the 16th day of February, 1999.

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8. This case concerns a net point of law referred to the Supreme Court pursuant to the provisions of the Criminal Procedure Act, 1967, by the Director of Public Prosecutions, after consultation with his Honour Judge Joseph Matthews, a Judge assigned to the Circuit Criminal Court for the County of Dublin.

Background to the reference .

9. The background to the reference is as follows. The trial of the above-named accused David Owens took place on the 10th day of November, 1997, before Judge Joseph Matthews sitting as the Judge assigned to the Circuit Criminal Court for the County of Dublin with a jury. The accused was arraigned and, having pleaded not guilty, a jury was empanelled to try the counts on the indictment. These consisted of three counts - assault occasioning actual bodily harm contrary to Section 47 of the Offences against the Person Act, 1861; having an article in a public area intending unlawfully to cause injury, incapacitate or intimidate contrary to Section 9 (5) of the Firearms and Offensive Weapons Act, 1990; and robbery contrary to Section 23 of the Larceny Act, 1916, as inserted by Section 5 of the Criminal Law (Jurisdiction) Act, 1976.

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10. The offences were alleged to have been committed on the 21st October, 1994 (some three years before the trial). On the 9th November, 1994 Garda Vincent Byrne, acting on confidential information, received by a colleague, that some of the proceeds of the robbery might be found at 55 Doon Court, Poppintree, obtained from Mr. Fowler, a Peace Commissioner, a warrant to search the premises. Later on the same night, at about 1.10 a.m., Garda Byrne accompanied by three other Garda officers went to the premises 55 Doon Court, Poppintree. The door was opened by the accused David Owens. The search warrant was produced and the Gardai carried out a search of the premises but found nothing incriminating. Nevertheless Garda Byrne, on the basis of confidential information which he had received and of statements in his possession, believed that David Owens was responsible for the robbery and, after caution, arrested him on the premises and conveyed him to Ballymun Garda Station where he was detained pursuant to the provisions of Section 4 of the Criminal Justice Act, 1984. While in detention he made an incriminating statement which was the principal evidence to be proffered by the prosecution against him at his trial.

11. At the commencement of the trial the defence indicated that they were challenging the search warrant and putting the prosecution on formal proof of it. Their line of argument, which appears to have been accepted by the trial

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12. Judge, was that if the search warrant was invalid the entry by the police officers into the premises was illegal and amounted to an unconstitutional invasion of the accused’s dwellinghouse; that the arrest was therefore invalid and also the detention of the accused pursuant to Section 4 of the Criminal Justice Act, 1984 was also invalid and any statement made by him, while in unlawful detention was inadmissible in evidence against him.

13. At the commencement of the trial, the defence having challenged the validity of the search warrant, the learned trial Judge agreed to try a preliminary issue relating to the search warrant in the absence of the jury.

14. The prosecution’s problem was that the Peace Commissioner, Mr. Peter Fowler, was eighty-five years old at the date of the issue of the search warrant, and, at the time of the trial - some three years later - was too ill to come to Court to explain his state of his mind at the time he issued the search warrant. In these circumstances the learned trial Judge felt that he was bound by the decision in The People [DPP] v. Byrne [1989] ILRM p. 613 . He, accordingly, held that the Peace Commissioner’s signature was not sufficient to establish the validity of the warrant and that the Peace Commissioner must be present in person to prove his state of mind and to be available, if necessary, for cross-examination by the defence.

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15. The learned trial Judge ruled that there was no evidence to establish the validity of the search warrant. He thereupon ruled that the subsequent arrest and detention were invalid and unconstitutional and directed the jury to find the accused not guilty.

16. In these circumstances the Director of Public Prosecutions, after consultation with the trial Judge has referred to us for decision the following question-

“The question of law hereby referred to the Supreme Court for determination is whether the learned trial Judge properly exercised his judicial discretion in holding that a peace commissioner must give evidence to prove his state of mind at the time of issuing the warrant”.

17. As previously indicated the case by which the learned trial Judge felt bound was The People [Director of Public Prosecutions] v. Byrne [1989] ILRM 613. In that case the accused had been arrested in pursuance of Section 30 of the Offences against the State Act, 1939, and his initial period of detention had been extended for a further four hours by a Garda Chief Superintendent. During the period of extended detention an incriminating statement was made by the accused which the prosecution wished to adduce in evidence. The Chief Superintendent was no longer alive at the date of the trial

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and no evidence could therefore be adduced as to the state of his mind when directing the extension period. The trial Judge ruled the statement inadmissible and directed the jury to acquit the Respondent. This Court (Finlay, CJ, Walsh, Griffin, Hederman and McCarthy JJ) held that he was right. They held that the suspicion of the Chief Superintendent must be expressly proved and cannot be inferred either from the signing of the extension order or by hearsay evidence of a verbal direction. Such evidence could only be given by the Chief Superintendent himself.

18. McCarthy, J. having referred to the presumption “omnia praesumunter rite esse acta” continued [at page 619] of his Judgment as follows:-

“This presumption, however, is limited; there is a wide gap between a presumption in favour of the regularity of acts and against misconduct and bad faith and that degree of proof required not merely in every criminal trial, as such, but, also, in every instance of what is, on its face, a breach of the constitutional right to personal liberty. There is no suggestion that Chief Superintendent Joy did not entertain the suspicion necessary to warrant giving the statutory direction; that is not to the point, the necessary underpinning of the direction must be positively proved and cannot be inferred merely from the signing of a formal direction or the intimation of a less formal direction by word of mouth”.

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19. The Peace Commissioner, like the Chief Superintendent, is a public officer but he is not a Court of Record. A search warrant is also a document which may affect constitutional rights. It does not speak for itself in a criminal trial. It appears to me that the learned trial Judge was right in feeling himself bound by the decision in The People [Director of Public Prosecutions] v. Byrne. I would accordingly answer the question referred to us “Yes “.

20. No question was referred to us concerning the validity of the arrest in this case nor were any submissions made to us on that issue either by Counsel for the Director of Public Prosecutions or by Counsel assigned by the Court. I accordingly make no comment on that matter.