Supreme Court of Ireland Decisions

1. This case raises an issue which has concerned the courts on a number of occasions in recent years, i.e. the validity of certain search warrants. The warrants now under challenge were issued by the three District Judges named as respondents in the proceedings and purported to authorise officers of the first named respondent, the Revenue Commissioners, to enter premises

2. The first category of warrants was issued in purported exercise of a power conferred by s.205 of the Customs Consolidation Act, 1876, which provides that:-

3. The second category of warrants was granted in purported exercise of the power conferred by s.5(1) of the Customs and Excise (Miscellaneous Provisions) Act, 1988, which is as follows:-

4. The reference in the 1876 Act to a “justice of the peace” as adapted is a reference to a District Judge. Section 42 of that Act sets out a table of goods prohibited to be imported into the United Kingdom including:

5. On foot of the warrants in question, officers of the Revenue Commissioners went to the premises of the applicants in Dublin, Cork and Limerick and seized a quantity of magazines, compact discs, videos and documents. On the 13th December, 1996, the applicants were given leave by the High Court to apply for the following reliefs by way of judicial review:-

6. The grounds upon which that relief was sought and which were pursued in the proceedings in the High Court and in this court were:-

7. A statement of opposition having been filed on behalf of the respondents, a notice of motion seeking the reliefs in question came on for hearing before the late Shanley J. In a judgment delivered on June 12th, 1998, he dismissed the applicant’s claim. From that decision, they now appeal to this court.

8. The warrants in each case were in a standard form, with the blank spaces being filled in with hand written entries. For the purposes of this judgment, it is sufficient to set out one warrant only in the case of each Act, since the warrants issued in Dublin, Cork and Limerick were substantially similar. They are set out in photocopied form in the appendix to this judgment.

9. It will be seen that, in the case of the 1876 Act, the warrant recites that it appears to the District Judge by the information on oath of the officer (Peter R. Mooney) that:-

10. In the case of the 1988 Act, the warrant recites that it appears to the District Judge by the information on oath of the officer that:-

11. The second information sworn by him was broadly to the same effect but directed to the requirements of the 1988 Act. In the case of each of these informations, there is appended a note initialled by the District Judge as follows:-

12. In paragraph 5 of the Affidavit, Mr. O’Riordan says:-

13. In the case of the Dublin premises, Mr. Mooney, in his affidavit said that he had been informed by Mr. Brendan Martin, a higher executive officer of the Investigation Bureau that he had visited the premises of the applicants

14. The information again was in the same form as the Cork and Dublin case, but included an additional note as follows:-

15. On behalf of the applicants, Mr. Hardiman, SC submitted that it was clear on the face of each of the warrants that the District Judge had not satisfied himself that there was reasonable cause or grounds for the suspicion of the officer concerned that there were uncustomed or prohibited goods or documents relating to them in the premises. The warrants were thus bad on their face and should have been quashed on that ground alone. The opinion to the contrary of the majority of the House of Lords in Reg. v. Inland Revenue Commissioners. Ex Parte Rossminster [1980] AC 952 should not be followed.

16. He further submitted that, in any event, it was clear that the District Judge in each of these cases had not satisfied himself, as was required by both the enabling provisions, that there were reasonable grounds for the suspicion

17. On behalf of the respondents, Mr. Feichín McDonagh, SC, submitted that the evidence in the case demonstrated that the District Judges, when issuing the warrants, had not simply accepted a bald averment from the officers that they had reasonable cause or grounds for their suspicions: each of the officers concerned had given oral evidence on oath of their reasons for believing that there were uncustomed or prohibited goods on the premises. In the case of the Cork and Limerick premises, that consisted of evidence that they had actually visited the premises and satisfied themselves that there was such material on display. In the case of the Dublin premises, the officer concerned had given oral evidence on oath that he had been informed by another officer that he had visited the premises and seen such material on display. He submitted that, in those circumstances, it was a matter for the District Judge to decide whether the evidence satisfied him that there were

18. As to the submission that the warrants were bad on their face, Mr. McDonagh submitted that it would be wrong to quash warrants which had been granted in a proper exercise by the District Judges of their jurisdiction under the relevant statutes because of what was alleged to be a defective statement of that jurisdiction on the face of the warrant. In such circumstances, the court was entitled to look behind the warrant in order to determine whether it was granted within jurisdiction. He submitted that the decision of the High Court in the present case was supported, not merely by the majority judgments of the House of Lords in Regina v Inland Revenue Commissioner, Ex Parte Rossminster [1980] AC 952 but also by the more recent decision of the Judicial Committee of the Privy Council in AG of Jamaica v. Williams and & Anor . [1998] AC 351.

19. Search warrants, such as those issued in the present case, entitle police and other officers to enter the dwellinghouse or other property of a citizen, carry out searches and (in the present case) remove material which they find on the premises and, in the course of so doing, use such force as is necessary

20. That principle has been recognised from early times by the common law. In a passage cited by Lord Hoffman in Attorney General of Jamaica v. Williams & Anor , [1998] AC 351, at p. 355, Camden CJ said in Entick v. Carrington (1765) 2 Wils. 275 at 291:

21. While the syntax is rather odd, the meaning is clear: the District Judge, before issuing the warrant, must have come to the conclusion, from the information on oath of the customs officer, not merely that he (the officer) suspects that there are uncustomed or prohibited goods on the particular premises but that his suspicion is “reasonable”. The District Judge is no doubt performing a purely ministerial act in issuing the warrant. He or she does not purport to adjudicate on any lis in issuing the warrant. He or she

22. That having been said, the fact remains that, if the District Judges in the present case issued the warrants because they were satisfied that the officers concerned simply had cause or a “ground” for their suspicion, as the wording of the warrant indicates, the requirements of the legislation would not have been satisfied. It is plainly not sufficient that the officer considered he had cause to apply for the warrant: the District Judge must be satisfied, on the basis of the information provided by the officer, that, viewed objectively, the cause or ground relied on by the officer for his suspicion was reasonable.

23. What then is the consequence of a recital in the warrant which, if it correctly records the basis on which the warrant was issued, shows on its face that a statutory precondition for the exercise of the jurisdiction was not satisfied? To this difficult question, unfortunately, the authorities do not provide a wholly clear answer.

24. The decision of Hamilton P. in Byrne v. Grey & Anor ., [1988] IR 31 which was discussed in the course of the argument, is not, in my view, relevant to this specific issue. The challenge to the validity of the warrant in

25. In contrast, in Reg. v. Inland Revenue Commissioners, Ex Parte Rossminster , [1980] AC 952 what was alleged to be a defect in the form of the warrant was relied on. That was a case in which searches were carried out on the respondent’s offices by officers of the Inland Revenue under powers alleged to have been conferred by certain fiscal legislation. That authorised an “appropriate judicial authority” to issue a warrant, if it was satisfied on information on oath given by an officer that there were reasonable grounds for suspecting that an offence involving any form of tax fraud had been committed and that evidence of it was to be found on the premises specified

26. Mr. Hardiman urged that these remarks, and similar observations in the speech of Viscount Dilhorne, go further than our courts should be prepared to go in presuming, in the absence of evidence to the contrary, that judges will act in accordance with the terms of the statute which confers on them a specific jurisdiction. I am satisfied, however, that the Superior Courts in this jurisdiction are entitled to assume, unless the contrary is established, that judges of the District Court act in accordance with the Constitution and the law in discharging their functions. Different considerations arise, however, where, as here, the warrant itself, unlike the warrant in Rossminster, recites that the District Judge has purported to. exercise the jurisdiction where the statutory preconditions for its exercise have not been met. It need hardly be said that the error was clearly unintentional and resulted from the use of a standard form which had obviously been in existence for some time.

27. It is indeed striking that, in the Rossminster case, Lord Salmon vigorously dissented and considered the warrant defective, even though, in contrast to the present case, there was no inaccuracy on its face. He said at p. 1019:-

28. Lord Salmon was, accordingly, prepared to arrive at that conclusion although the warrants in that case on their face did not recite an erroneous ground for the exercise of the jurisdiction, but, at worst, were incomplete in not including a separate and additional recital that the judge himself was satisfied that there was reasonable ground to suspect etc. If there had been, as here, a recital that the judge was simply satisfied that the officer had a ground for suspecting etc., the opinions of the majority might well have been different.

29. The warrant then went on to authorise the search and seizure. In that case, unlike the present, the Judicial Committee, like the courts in Jamaica from which the appeal was brought, had no information about what passed between the officer and the justice issuing the warrant. Having referred to the recitals in the warrant, Lord Hoffman, delivering the judgment of the Judicial Committee, went on at o, 361:-

30. Again, the position is not the same in this case. Here, the recital was to the effect that it appeared to the District Judge, or he was satisfied, that the officer had “cause” or a “ground” - not “good reason” - to suspect that there were uncustomed goods on the premises.

31. I am satisfied that the submission on behalf of the respondents that, in a case where the warrant itself states that it is being issued by the District Judge on a basis which is not justified by the statute creating the power, the invalidity of the warrant can be cured by evidence that there was in fact before the District Judge evidence which entitled him to issue the warrant within the terms of the statute is not well founded. That proposition seems to me contrary to principle and unsupported by authority. Given the necessarily draconian nature of the powers conferred by the statute, a warrant cannot be regarded as valid which carries on its face a statement that it has been issued on the basis which is not authorised by the statute. It follows that the warrants were invalid and must be quashed.

32. We are not concerned in this case with an issue which arose in Byrne v. Grey [1988] IR 31 her case decided by Hamilton P. Berkeley v. Edwards [1988] IR 217. In both cases, the court was of the view that the discretionary remedy of certiorari should be refused since the object in seeking it was to have excluded the evidence obtained on foot of the search warrant and the

33. In the present case, there will not necessarily be any criminal proceedings arising out of the seizure of the goods alleged to be uncustomed or prohibited. The applicants are, accordingly, clearly entitled to the immediate return of the property which has been seized on foot of an invalid warrant and are not obliged to avail of the somewhat archaic procedure prescribed by s.207 of the 1876 Act enabling the person from whom the seizure is made to give notice in writing within a month that he claims the property, in which case the customs are required to take proceedings for the forfeiture and condemnation of the property. [Under s.267, even where the claimant is successful, but there was “reasonable or probable cause” for the seizure, the damages to which he is entitled are limited to two old pence and he is not to recover any costs.]

34. That is sufficient to dispose of the appeal in the present case, but, had it been necessary so to decide I would have been satisfied that there was before the District Judges in each case sufficient evidence in the form of the informations on oath, accompanied in the Cork case by oral evidence, on which they would have been entitled to reach the conclusion that uncustomed or prohibited goods, and books and documents relating to them, were kept on the specified premises.

35. For the reasons I have already given, I would allow the appeal and substitute for the Order of the High Court an order of certiorari quashing the warrants and an injunction directing the respondents to deliver up to applicants the goods seized on foot of the warrants. I would hear counsel on the question as to whether any of the other reliefs sought should be granted.

36. The Customs Consolidation Act 1876

37. Whereas it appears to me by the information on Oath of Peter R Mooney

38. Customs & Excise that the said... Peter R Mooney

39. Indecent and or obscene pornographic material

40. Now I therefore do authorise and empower you to enter into the said premises to search for the said goods and if the same or any part thereof shall be found upon such search to seize and carry away the same.

41. Signed William G Hamill

42. Dated this 4th day of December 1996

43. Executive Officer

44. Officer of Customs & Excise.

45. Whereas it appears to me by the information on Oath of _______ _______ Peter R Mooney _________________ _________________ an Officer of Customs and Excise that the said _______ Peter R Mooney _______ has cause to suspect and doth suspect that certain Books or Documents relating to transactions in contravention the laws relating to Customs are kept or concealed in a certain premises or place to wit, _______ Mr James Bellamy _______ at 164 Capel Street Dublin _______

46. Now I therefore do authorise and empower you to enter into the said premises or place to search, for the said Books or Documents, to inspect any Books or Documents found therein and to seize and carry away all or any such Books or Documents and any uncustomed goods or goods found therein the importation of which is prohibited.

47. Signed: William G Hamill

48. Dated this 4th day of December 1996

49. Executive Officer of Customs and Excise.

50. On the 5th December, 1996 Customs Officers entered the premises of the applicants at 5 Capel Street, Dublin, 164A Capel Street, Dublin, 7 Earl Street, Limerick and 1 Dean Street, Cork pursuant to search warrants issued by second, third and fourth named respondents respectively. In pursuance of their search they removed from the premises various

51. The present proceedings have been brought for a declaration that the warrants grounding the searches and seizures were unlawful, void and of no legal effect. It is submitted that there was no evidence before the district judges to justify the issue of the several warrants and that the warrants in any event failed to show jurisdiction on their face for two reasons:

52. There were seven such warrants in all, two in respect of the premises in Limerick and Cork and 164A Capel Street and one in respect of the premises 5 Capel Street, Dublin. This latter search warrant was issued pursuant to the Provisions of s. 5(1) of the Customs and Excise (Miscellaneous Provisions) Act, 1988. In respect of the other premises the warrants were issued under this section and also under s. 205 of the Customs Consolidation Act, 1876.

53. The relevant provisions of s. 5 of the 1988 Act are as follows:

54. The relevant provisions of s. 205 of the 1876 Act are as follows:

55. In that case the relief of certiorari was refused because Hamilton P. regarded the warrant as spent and the only matter at issue being whether or not the evidence obtained was admissible in the course of a subsequent

56. The sufficiency of the warrant itself has been considered in England in Inland Revenue Commissioners and Another v. Rossminster Limited and Others [1980] AC 952. In that case the relevant warrants were issued to revenue officials. The relevant statutory authority empowered a judge if satisfied on information on Oath given by such officer that there was a reasonable ground for suspecting that an offence had been committed.

57. As in the instant case, the importance was stressed of the need for the judge to be satisfied as to the existence of the reasonable suspicion of the applicant for the warrant. The sufficiency of the material before the judge in that case to enable him to be so satisfied was not contested.

58. The substantial issue so far as the instant case is concerned was whether that fact should have been stated on the face of the warrant.

59. This was held by the majority not to have been necessary. Lord Wilberforce was of the view however that it would have been wise to have included such a statement on the warrant. Lord Dilhorne emphasised the need for the judge to be so satisfied, but did not accept that the absence of any reference to such fact on the face of the warrant implied that he had not been so satisfied. Lord Diplock took broadly the same view. Lord Scarman regarded it as desirable to include such a recital on the warrant. In his view, the issue of the warrant was a judicial act and that the case

60. Lord Salmon was in the minority. In his view, this could not be implied because the warrant gave a different reason, that the revenue officer was so satisfied. The warrant in that case stated:

61. In his view, a warrant should also give the reason for its issue and when signed by a judge should state that he, the judge, was so satisfied. Dealing with the particular search warrants he said at p. 1019:

62. Similar issues arose in Attorney-General of Jamaica v. Williams [1998] AC 351. In that case, the warrant stated on its face that the justice issuing it was satisfied upon written information on Oath that there was good reason to believe that uncustomed material was on the particular premises. The wording of the statute under which the warrant had been issued was very similar to s. 205 of the 1876 Act. It provided, inter alia:

63. This case also upheld the proposition that it was insufficient for the revenue officer to have reasonable cause for suspicion, it had to appear to the justice issuing the warrant that he had such reasonable cause.

64. In that case there was a sworn information in writing which would not on its own have been sufficient to enable the justice to form the requisite opinion. There was no evidence that any additional evidence had been given to him. The Privy Council held that the statement on the face of the warrant that the justice himself was satisfied that the officer’s suspicion was based upon reasonable cause was prima facie to be accepted.

65. These two latter cases are significantly different. In the former, the warrant was validly issued, but the warrant itself did not so indicate. In the latter, there was evidence that the warrant was not validly issued, while at the same time the warrant itself indicated the basis, being a legal basis, from which the warrant was issued.

66. Neither case is on all fours with the present. In my view, once the warrant is challenged in court, there should be an enquiry as to whether it was validly issued. Once that enquiry shows that it was - in this case that the officer had reasonable cause to suspect and that the judge was likewise so satisfied - then whatever is down on foot of the warrant cannot be unlawful on the ground that the warrant was not lawfully issued. However, if at the same time the warrant itself does not express this lawful authority, it will not be lawful to act on foot of it if it’s validity is challenged.

67. Here, the evidence shows that the several judges were not satisfied to accept the common form informations. They asked questions and heard oral evidence. To that extent, it is unnecessary to consider whether to adopt the views expressed in Attorney General of Jamaica v. Williams [1998] AC 351 whether the sworn informations would on their own have

68. This leaves the question whether that exercise has been properly conveyed by the words in the warrant. This question leads to the further question, if it has not been properly conveyed, what is the legal effect of such omission?

69. The first of these issues is whether or not the warrants are good on their face.

70. All the members of the House of Lords in Rossminster were of the view that the warrant should state the legal reason for issuing the warrant although only Lord Salmon regarded it as being vital in the circumstances

71. In the instant case, the warrants themselves indicate that it appeared to each District Judge that the Customs Officer had cause to suspect and did suspect the existence of uncustomed goods in the various premises. But what the warrants do not say on their face is that the district judges considered that there was reasonable cause to suspect.

72. In my view the absence of the word “reasonable” on the face of the warrant does not affect its validity. First, there was no error within jurisdiction relating to the issue of the warrant. Secondly, once the warrant has been signed by the judge expressly stating that it appeared to him that there was cause, it must be assumed that he has acted responsibly and not frivolously and that the warrant must be valid.

73. Even if I am wrong in this view, the legal effect of the omission of the word “reasonable” could not invalidate the authority under which it was issued.

74. In the ordinary course certiorari did not issue for errors made within jurisdiction. The jurisdiction to quash a record bad on its face was exercised not just because the record itself was bad on its face but because it was evidence that the decision itself was made in error. The quashing of the order was, accordingly, a declaration to this effect. However, where the order is made within jurisdiction but at the same time appears on its face not to say so it seems to me that it is more appropriate that it should be regarded as ineffective. This is particularly so in relation to a search warrant because until it is challenged it seems to me that when it has been issued within jurisdiction the only reason why it can be challenged is that it does not say so.

75. The execution of the warrants was not challenged. They were executed peacefully. If the appellant or his staff had not accepted the validity of the warrants they could have refused entry. In the instant case, their legal advice was that they were bound to allow entry and they did so.

76. The purpose of a warrant is to indicate to the person against whom it is to be executed that it has been issued under lawful authority. If on the face of the warrant it does not appear to be so then the person against whom it is directed can refuse to allow the entry to his premises. This does not, however, make the authority invalid in any way. The appropriate course in such circumstances would be for the Customs Officer to return to the district judge, to amend the warrant so that it does not show any error on its face or, alternatively, to obtain a fresh warrant

77. This view is supported by a passage in the judgment of the Privy Council given by Lord Hoffmann in Attorney General of Jamaica v. Williams [1998] AC 351 at p. 364 where it was said:

78. In my view the question which arises in the present case is as to the nature of the warrant itself. If it is merely a document which is provided to assure the person against whom it is directed that the proposed search is a legal one, then it seems to me that if the search is allowed to proceed then the person against whom it has been made cannot subsequently object. However, if the purpose of the warrant is itself a legal statement, then it seems to me that if the statement is inaccurate its legality may be lost.

79. In my view the former is the more appropriate construction to be placed on the warrant and in those circumstances it seems to me that since the search was legally authorised the appellant cannot now complain that it was invalid. Nor is he entitled to say that the jurisdiction of the district judge was invalidly exercised merely because the valid exercise was not correspondingly indicated on the face of the warrant.

80. I would reject the appeal in this case.