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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Director of Public Prosecutions v Noonan (Approved) [2025] IESC 22 (30 May 2025)
URL: http://www.bailii.org/ie/cases/IESC/2025/2025IESC22CharletonJ.html
Cite as: [2025] IESC 22

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An Chúirt Uachtarach

The Supreme Court

 

O'Donnell C.J.

Charleton J.

O'Malley J.

Hogan J.

Collins J.

 

Supreme Court appeal number: S:AP:IE:2024:000168

[2025] IESC 22

Court of Appeal record number: 2023/174

[2024] IECA 275

Kildare Circuit Criminal Court bill number: KEDP0030/2018

 

 

 

Between

 

The People (at the suit of the Director of Public Prosecutions)

Prosecutor/Respondent

 

 - and -

 

 Noel Noonan

Accused/Appellant

 

Judgment of Mr Justice Peter Charleton delivered on Friday 30 May 2025

 

1. Where Gardaí lawfully stop and seize an uninsured and untaxed car, the driver, Noel Noonan, also having no valid driving licence, may they inspect the interior? On searching the car in the pound to which the vehicle was brought, alleged packages of controlled drugs were found in the boot. The legality of the discovery, seizure and testing of those substances is at issue, since Noel Noonan is facing charges of illegal possession.

 

2. On being convicted before Naas Circuit Court on 8 February 2023 of certain drugs offences based on his possession of the articles in the boot, the accused successfully appealed to the Court of Appeal. The principle ruling on appeal was that hearsay evidence, relevant only to the existence of a reasonable suspicion, an issue only ever tried in the absence of the jury, if there is a challenge to the valid exercise of a statutory police power such as search or arrest, was adduced by the prosecution before the jury to the prejudice of the accused. Hence, the conviction was quashed and a retrial ordered. On the issue of the authority of the Gardaí to follow an apparently valid seizure of a vehicle with inspecting the boot, the Court of Appeal ruled against an argument on behalf of the accused that the alleged drugs claimed to be in the boot were unlawfully discovered. He then applied on that specific search issue to this Court for a further appeal. By determination dated 21 January 2025, [2025] IESCDET 3, this Court ruled that there should be a further appeal on this point:

 

12. This Court holds that leave to appeal should be granted in this case. The Court is of the view that matters of general public importance concerning the issue of the common law power of search of the Gardaí arise in this case. A search is part of the investigation process, that principle informs the entire criminal law. As was stated by this Court in The People (DPP) v Quirke [2023] IESC 5 [2023] 1 ILRM 225:

 

65. The original common law rule had been that a constable may search a prisoner if he behaves with such violence of language or conduct as to make prudent a search for weapons with which the prisoner might do mischief [...] The origin of the common law rule was in the sensible necessity to protect the arresting officer.

 

13.  A member of An Garda Síochána stopped a car being driven without tax, by a person without insurance; and where that person was not in a position to produce his driver licence. A tip-off was received by An Garda Síochána about controlled drugs in the vehicle after it has been seized already. What authority, at common law, or by statute, was there where a car, or other item, is taken lawfully by the Gardaí, but where, thereafter, a reasonable suspicion arises that the vehicle or other item contains some item which either is unlawful in respect of the possession thereof or is, or could reasonably, be an item which could be of use in crime, either in the past or prospectively. The issue is whether there is such a power, the conditionality attaching thereto if it exists, and the origin of such a power if it exists in law.

  

Alleged facts

 

3. The finding of facts is a matter for the jury in a non-minor offence; Article 38.5 of the Constitution, The People (DPP) v McHugh [2024] IECA 176. What follows cannot be more than a detached and neutral recitation of mere allegations which the prosecution propose to make before the jury on the retrial. Noel Noonan was charged on an indictment containing 7 counts:

 

1: Unlawful Possession of Drugs, contrary to Section 3 of the Misuse of Drugs Act, 1977, as amended.

2: Possession of Controlled Drugs for unlawful sale or supply, contrary to Section 15 of the Misuse of Drugs Act, 1977, as amended.

3: Possession of Controlled Drugs for unlawful sale or supply, contrary to Section 15 of the Misuse of Drugs Act, 1977, as amended.

4: Possession of Controlled Drugs with a value greater than €13,000, contrary to Section 15A of the Misuse of Drugs Act 1977, as amended.

5: Driving without holding a valid driving license, contrary to Section 38 of the Road Traffic Act 1961 as amended.

6: Failing to produce a driving license when demanded by a member of An Garda Síochána, contrary to Section 40(1)(a) of the Road Traffic Act 1961 as amended.

7: Failing to produce a driving licence within 10 days, contrary to Section 40(4)(a) of the Road Traffic Act 1961 as amended.

 

4. The prosecution propose to put evidence before the jury to the effect that on 13 February 2017, Noel Noonan was driving a Toyota Corolla on the N7 motorway in Kildare and was stopped by Garda David Farragher. His patrol car had an automatic number plate detection system installed and this indicated that the vehicle had not been taxed for road use. When stopped, Noel Noonan, asked for a driving licence, did not have one. Further, the insurance certificate for the car did, on the face of it, cover him to drive this vehicle, which he was borrowing from another person. Garda Farragher seized the vehicle, pursuant to s 41 of the Road Traffic Act 1991. A tow truck was called to remove it. While this arrived fairly speedily, there was some delay as the tow truck driver, apparently, was also called to assist on an unrelated incident. Hence, the Toyota Corolla arrived at the Garda compound in Naas 1 hour and 15 minutes later. As a courtesy, Garda Farragher had meanwhile driven Noel Noon to Kildare train station.

 

5. The course of events in the intervening period apparently became significant at trial. The defence asserted that another unrelated car had been collected by the tow truck before arriving at the Naas compound. In the meanwhile, it was claimed that Garda Farragher had been called by a senior officer who informed him of certain suspicions. It is impossible to imagine any legal basis whereby the prosecution claimed to be able to lead evidence of any such suspicion before the jury. This evidence was hearsay; that in consequence of information a person not called to testify suspected a fact. But that was led before the jury. Suspicion may be a fact in itself but is relevant only to the exercise of a police power. If an issue arises as to whether there was, as a matter of law, a suspicion justifying, for instance an arrest or an application for a search warrant, or whether that suspicion was reasonable, any relevant evidence is considered in the absence of the jury. It is for the judge to rule as a matter of law on the existence or adequacy of any suspicion. Where the defence assert an invalidity of the exercise of any police power based on a reasonable suspicion, that is a matter for the judge in the absence of the jury. In her ruling, the trial judge viewed this hearsay evidence as "probative" in the prosecution stating that it is "relevant in the sense that this is the, I suppose, the truth of the matter according to Garda Farragher, not only the truth but the whole truth...". Hence, the jury were invited to assess the guilt of the accused based on what a person who did not testify thought.

 

6. Garda Farragher opened the boot of the car in the Naas compound and saw some packages. He then called the detective unit to assist. What are claimed to be large parcels of amphetamine and alprazolam were recovered. The legal basis of the search of the seized vehicle became an issue at trial. The trial judge ruled that there was a common law power to search the car in the circumstances but also determined that there was a power to search the car on the grounds of a reasonable suspicion that drugs would be found in the car, pursuant to s 23 of the Misuse of Drugs Act 1977 Act. For completeness, that section reads:

 

(1) A member of the Garda Síochána 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 it necessary for that purpose, detain the person for such time as is reasonably necessary for making the 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, vessel or aircraft to bring it to a stop and when stopped to refrain from moving it, or in case such vehicle, vessel or aircraft is already stationary, to refrain from moving it, or

 

(c) seize and detain anything found in the course of a search under this section which with such cause appears to him to be something which might be required as evidence in proceedings for an offence under this Act.

 

(2) Nothing in this section shall operate to prejudice any power to search, or to seize or detain property which may be exercised by a member of the Garda Síochána apart from this section.

 

7. On the next day, 14 February 2017, Noel Noonan and his girlfriend, who was the registered owner of the Toyota Corolla and insured to drive it, presented themselves at the Garda station in Naas seeking to have the vehicle released to her. Noel Noonan was arrested and detained for the purpose of the Garda investigation into the discovery of the controlled drugs. At interview, the accused indicated that he "saw no drugs" in the car. He was charged the next month with the offences in the indictment. That following month, the tow truck driver suddenly died. Then, the Gardaí destroyed the Toyota Corolla pursuant to their legal powers.

 

8. Counsel are entitled at trial to put to witnesses the case which their client instructs them is to be made and which is relevant to that witness. What may reasonably arise on the fact of a denial of possession based on circumstance, as was the case here, may also be put. Hence, at trial, emphasis was laid on the time it took the tow truck to travel the short distance from the N7 road to the compound at Naas and the fact that another car had also been collected, it seems, by that vehicle. Theories were posited that the drugs in the Toyota Corolla had never been in the accused's possession, in the sense that he had no awareness that he was driving a car with controlled drugs in the boot; or, alternative hypothesis, that after the Gardaí had seized the vehicle, the drugs had by some means been deposited by a person unknown into the boot. In the context of the defence case made, the inadmissible evidence of suspicion led by the prosecution meant that the jury trying the case were diverted into a consideration of a chimera; whether a senior officer had a suspicion in his mind and on what basis. This had nothing to do with any issue the jury were trying.

 

The Court of Appeal ruling

 

9. Noel Noonan appealed his conviction to the Court of Appeal; Edwards, McCarthy, Burns JJ, judgment of Tara Burns J; [2024] IECA 275. The grounds of appeal were categorised under: unlawful search of the vehicle; admissibility of evidence; possession; chain of evidence of exhibits; analysis identification of exhibits; failure to seek out and preserve evidence; admissibility of hearsay evidence (the suspicion evidence led by the prosecution before the jury); and reliability of CCTV footage; and failure to give a warning. It is not necessary to detail the reasoning in the Court of Appeal judgment dealing with all these grounds. It suffices to note that the Court of Appeal characterised the running of the trial as "unconventional" on behalf of the defence, and expressed surprise at how issues were bypassed at trial with no apparent objection but surfaced later when the jury already had heard the testimony and were somehow then pursued by the defence on an application for a direction to acquit on the close of the prosecution case and at the appeal hearing. This referred to evidence not being objected to when led by the prosecution, at times clearly unlawfully, but application being made at close of the prosecution case to withdraw the case from the jury, who, by that stage, and in the absence of any challenge by the defence, had already heard such testimony. Much of that testimony, such as evidence as to suspicion, was not evidence at all.

 

10. As to the search of the seized vehicle, the Court of Appeal was of the view that s 23 of the 1977 Act was not applicable to the search, "as the section appears to envisage that the person reasonably suspected to be in possession of a controlled drug remains in the vicinity of the vehicle to be searched". Leaving that possible legal issue aside, the accused being no longer in legal possession of the seized car, the Court held that "the doctrine of self-protection" applied to Garda Farragher opening the boot and the detective recovering the packages of alleged drugs:

 

29...in the circumstances of the instant case, where a car was stopped without tax; being driven not by the owner, but by a person without insurance; and where that person was not in a position to produce his driver licence, an onus arose on Garda Farragher to ensure that the car was safe after it had been taken into the custody of An Garda Síochána, to be kept in a third party's compound. We are of the view that the doctrine of self-protection arose, which extended to ensuring the protection of the third party, his staff, and other users of the compound where the car was being stored on behalf of the guards, thereby permitting a search of the car to ensure that it was safe.

 

11. As to the hearsay evidence, admissible only on a legal issue as to the existence of a reasonable suspicion, where challenged, and only in the absence of the jury, but inadmissible before the jury, the Court held that should not have been adduced by prosecution as evidence at trial, stating:

 

65. The manner in which the trial judge handled this evidence and the instruction she gave to the jury is flawed for a number of reasons. Principally, a hearsay statement which Inspector Sugrue allegedly received from a confidential source [as suspecting there might be drugs in the Toyota Corolla], and allegedly passed to Garda Farragher, was admitted as a plank of the respondent's case. Finding that there was a probative value in this hearsay evidence offends against the rule against hearsay as, in that instance, the hearsay statement is being admitted to prove the truth of its contents, which is prohibited by the rule.

 

Submissions on the appeal

 

12. On behalf of Noel Noonan it is asserted that the boot of the Toyota Corolla could only have been opened where Garda Farragher, and following on from him the detective who retrieved the alleged drugs for analysis, were exercising a statutory power based on a requirement of reasonable suspicion; citing in that regard ss 23 and 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997, enabling the search of a premises by judicial warrant, s 29 of the Dublin Police Act 1842 and s 8 of the Criminal Law Act 1976. All of which impose a threshold requirement for "reasonable cause", "reasonable suspicion" or "reasonable grounds", contrasting with what here was asserted to be a search "in what might be termed an unrestrained and indiscriminate manner". Citing this Court's decision in DPP (Stratford) v Fagan [1994] 3 IR 265, it was stated that Gardaí have a common law power to stop vehicles in a public place and to speak to the drivers. However, the search of a vehicle is proposed as a "different matter", involving "an intrusive and invasive action on the part of the Gardaí vis-à-vis a citizen". Also put forward is DPP (Higgins) v Farrell [2009] 4 IR 689, claimed to be to the same effect. While the accused had handed over the key of the car that, it is contended, was in the context of it being seized and potentially driven away, this was a circumstance asserted not to be assent to a search.

 

13. On submissions based on The People (DPP) v Quirke [2023] 1 ILRM 225 the scope of common law powers of search are asserted not to extend to searching an apparently safe vehicle out of the hands of its owner and the person driving it. On behalf of the accused, it is argued that as he was not arrested at the scene and was allowed to travel onwards and that there was no suggestion that he had behaved in such a way as "to make prudent a search for weapons" with which he might do mischief and that there was in fact no suggestion at any time that he might have weapons, explosives or other dangerous items in the Toyota Corolla; hence, it is said that no search was warranted. Further, it is claimed, had there been any such suspicion, a civilian operative, meaning the tow truck driver, would never have been allowed to drive the car away. The car could have been searched there and then had there been a reasonable suspicion as to the possession of drugs, which there was not at the time, under s 23 of the 1977 Act, it is claimed. Further, there was no evidence that seizure of the car was necessary either for the investigation of criminal offences or to prevent its destruction pending such investigation. Instead the car was impounded under regulation made under s 41 of the Road Traffic Act 1994, which it is contended does not expressly contain or necessarily imply any power beyond seizure. Since s 41 of the 1994 Act carries, it is asserted, no such power, any reference to a common law power is described as "misconceived."

 

14. For the Director of Public Prosecutions it is stated that it is beyond dispute as to the existence of a common law power to search on the basis of self-protection or the protection of the arrested person or to shield others from harm. The Director emphasises that the search in this case was not a search of the person and did not impinge on the accused's liberty and it also did not involve any interference with the dwelling of the citizen under Article 40.5 of the Constitution, with property rights or with his right to privacy. According to the Director, the search engaged no constitutional or legal right of the driver, citing this Court's decision in People (DPP) v BA [2016] IESC 22, [2018] 2 IR 715 as a recognition of the important distinction between searches of the person and search/seizure of inanimate objects. As the car was not his, Noel Noonan, even though accused of a crime, is not entitled to assert any breach of his rights arising. As the car was lawfully stopped the seizure was also lawful. The statutory power to detain, remove, store or dispose of a vehicle, it is argued, "must include the ability to look into, or open the boot of or search the vehicle." There is, the Director argues, nothing prima facie unlawful in a Garda opening the boot of a lawfully seized vehicle, such as to require a specific legal power to justify its exercise; DPP (Stratford) v Fagan [1994] 3 IR 265, Dunne v DPP [2002] IESC 27, [2002] 2 IR 305 and DPP v Hannaway [2021] IESC 31, [2023] 2 IR 591). The Director says that the common law gives the Gardaí power to search a vehicle lawfully seized and within their possession in order to detect and prevent crime.

 

15. The Director also posits s 9 of the Criminal Justice Act 1976, which provides for the seizure and retention of evidence relating to any offence found in the course of exercising any powers under that Act "in the course of a search carried out under any other power". That power applied here, the Director claims, also contending that s 7 of the Criminal Justice Act 2006 is a "broader" power, allowing Gardaí to seize and retain evidence of or relating to the commission of an arrestable offence which otherwise they "find ... or come ... into possession of" in a public place or any place the Garda is invited or permitted to be. According to the Director, that power arose on the lawful seizure of the Toyota Corolla pursuant to s 41 and "was available to Garda Farragher to provide a lawful basis for both the finding of the suspected drugs and their subsequent retention." Both s 9 of the 1976 Act and s 7, it is argued, of the 2006 Act, made lawful the seizure and retention of the controlled drugs in this case.

 

16. As regards the, so called, doctrine of self-protection, the Director submits that the protection of the public remains part of the common law and statutory duty of An Garda Síochána. If the common law authorised the search of a person and the area around them when incident to an arrest, then a fortiori that must extend to the power to search a lawfully seized vehicle in the circumstances here. The power here was consequently, it is contended, based on the need to protect Gardai and third parties from anything potentially dangerous in the car. Citing People (DPP) v Kelly and McGrath [2022] IECA 333, in which a vehicle was stopped and searched prior to the formal arrest of the driver, a person reasonably suspected of involvement in a serious crime that had just been committed nearby, but while he was effectively being detained, necessary ancillary powers are claimed. There, the Court of Appeal is argued to have rightly upheld the finding of the trial court that, in the particular circumstances, the search was lawful at common law. The Court went on to state that even if the search was not legally justified, "there was at most a mere illegality involved in the searching of the vehicle" and the trial court was entitled to exercise its discretion to admit the evidence. By the same token, it is contended that the suspicion held by Garda Farragher after his phone call with Inspector Sugrue, coupled with the fact that the car was at that stage in the lawful possession of the Gardaí, gave rise to a common law power to search for relevant evidence in pursuance of the investigation of crime. Finally, the Director claims that DPP (Higgins) v Farrell was not concerned with any issue of the search of a vehicle lawfully seized by the Gardaí. The point in Farrell, so it is claimed, is that the Gardaí had sought to invoke s 23 as a basis for the search but the "statutory precondition" - the existence of a reasonable suspicion - was absent. The Director also observes that the search in Farrell occurred at the roadside and was of "an invasive nature far removed from the facts in this case."

 

Police powers

 

17. It is to be doubted that this set of circumstances calls for any analysis of police powers, since the power exercised, that of seizure of vehicles on the public road in aid of the collection of excise and of ensuring public safety by requiring those driving to be licenced, has nothing to do with criminal investigations. Hence, it is appropriate to fully quote s 41 of the Road Traffic Act 1994, since this was the authority used by Garda Farragher to seize the Toyota Corolla driven on the N7 by Noel Noonan. This provides:

 

(1) The Minister may, after consultation with the Minister for Justice, make regulations authorising and providing for the detention, removal, storage and subsequent release or disposal of a mechanically propelled vehicle in use in a public place where—

 

(a) the person driving the vehicle refuses or fails to produce there and then a driving licence then having effect and licensing him to drive the vehicle, when production of such a licence is demanded of him by a member of the Garda Síochána under section 40 (1) of the Principal Act and the member is of opinion that the person is by reason of his age ineligible to hold a driving licence licensing him to drive the vehicle,

 

(b) the vehicle is or a member of the Garda Síochána reasonably believes it to be registered in the State and the member is of opinion that the vehicle is being so used in contravention of section 56 (1) of the Principal Act, or

 

(c) a member of the Garda Síochána is of opinion that any excise duty payable under section 1 of the Finance (Excise Duties) (Vehicles) Act, 1952, in respect of the vehicle, being a vehicle which is or which the member reasonably believes to be registered in the State, has not been paid in respect of a continuous period of 2 months or more immediately prior to such use.

 

(2) Regulations under this section may, in particular and without prejudice to the generality of subsection (1)—

 

(a) authorise and provide for the recovery by such persons or classes of persons as may be specified in the regulations from the owners of vehicles detained, removed, stored, released or disposed of, of charges in accordance with a prescribed scale, in respect of such detention, removal, storage, release or disposal and for the disposal of moneys received in respect of such charges,

 

(b) provide for the waiver or deferral of such charges in such circumstances as may be specified in the regulations,

 

(c) provide for the release, by or on behalf of persons referred to in paragraph (a), of vehicles detained, removed or stored to such persons and upon such conditions as may be specified in the regulations,

 

(d) authorise and provide for the sale (or the disposal otherwise than by sale), by or on behalf of persons referred to in paragraph (a) of vehicles detained, removed or stored and provide for the disposal of moneys received in respect of such sale or other disposal.

 

(3) Notwithstanding any other provisions of this section, a vehicle shall not be disposed of thereunder before the expiration of a period of 6 weeks from the date of its detention or 2 weeks after notice of the intended disposal has been given in the prescribed manner, whichever is the longer.

 

(4) A person who obstructs or impedes, or assists another person to obstruct or impede, a member of the Garda Síochána in the performance of his duties under this section shall be guilty of an offence.

 

(5) No action shall lie in respect of anything done in good faith and without negligence in the course of the detention, removal, storage, release or disposal of a vehicle under this section.

 

18. Within the boundaries of what is therein provided, and guided by the text of the primary legislation, Statutory Instrument No 89/1995, the Road Traffic Act, 1994 (Section 41) Regulations, 1995, make provision for the seizure, detention and disposal of an illegally driven vehicle:

 

4. Where a member of the Garda Síochána is of opinion that an offence to which section 41 (1) of the Act refers is being or has been committed in respect of the driving or use of a mechanically propelled vehicle, such member may take such steps, including the making of an arrangement with any other person as the member thinks fit, for the detention, removal and storage of the said vehicle.

 

5. (1) Subject to articles 6,7, 8 and 9, where a vehicle has been detained, removed and stored in accordance with article 4, there shall be paid by the owner of the vehicle to the Commissioner a charge for the detention and removal of the vehicle and a charge for the storage of the vehicle as follows—

 

( a ) for the detention, removal and for storage for one day of the vehicle— - £100.

 

( b ) for each further day of storage— - £25.

 

(2) Subject to articles 6, 7, 8 and 9, a vehicle which has been detained, removed and stored in accordance with article 4 shall not be released until—

 

( a ) the person claiming the vehicle produces, to the member of the Garda Síochána in charge of the place at which the vehicle is stored, satisfactory evidence of ownership of the vehicle or authority from the owner to claim the vehicle, and

 

( b ) the charge due for the detention, removal and storage of the vehicle have been paid in accordance with sub-article (1).

 

(3) A charge under this article may, in default of being paid, be recovered as a simple contract debt in any court of competent jurisdiction.

 

6. Where a vehicle has been detained, removed and stored in accordance with article 4 in respect of an offence to which section 41 (1) (a) of the Act refers and the owner establishes, to the satisfaction of the member of the Garda Síochána in charge of the place at which the vehicle is stored,

 

(1) that the vehicle had been taken without the owner's consent, and

 

(2) that the vehicle was being used without the owner's consent at the time at which it was detained,

 

the member may release the vehicle to the owner without payment of the charges set out in article 5.

 

7. Where a vehicle has been detained, removed and stored in accordance with article 4 in respect of an offence to which section 41 (1) (b) of the Act refers and the owner establishes, to the satisfaction of the member of the Garda Síochána in charge of the place at which the vehicle is stored, that an approved policy of insurance within the meaning of section 56 of the Act of 1961 was in force in respect of the use of the vehicle at the time it was detained the member shall release the vehicle to the owner without payment of the charges set out in article 5.

 

8. Where a vehicle has been detained, removed and stored in accordance with article 4 in respect of an offence to which section 41 (1) (c) of the Act refers and the owner establishes, to the satisfaction of the member of the Garda Síochána in charge of the place at which the vehicle is stored, that excise duty payable under section 1 of the Finance (Excise Duties) (Vehicles) Act, 1952 (No. 24 of 1952) in respect of the vehicle had been paid, prior to the detention of the said vehicle, in respect of the day on which the vehicle was detained, or in respect of any part of the period of three months immediately prior to the detention, the member shall release the vehicle to the owner without payment of the charges set out in article 5.

 

9. Where a vehicle has been detained, removed and stored in accordance with article 4 and the said vehicle was at the time of the detention abandoned or illegally parked, the charges set out in article 5 shall not be applied in addition to the application of charges set out in Regulations made under section 97 of the Act of 1961.

 

10. Subject to the provisions of section 41 (3) of the Act, the Commissioner may dispose of a vehicle which has been detained, removed and stored in accordance with these Regulations in any manner he thinks fit where the owner of the vehicle has not claimed it or has not paid the charges due in accordance with article 5.

 

11. Where the Commissioner proposes to dispose of a vehicle in accordance with these Regulations, the Commissioner, shall—

 

(1) serve on the owner a notice of intention to dispose of the vehicle or

 

(2) where it has not been found possible after reasonable enquiry to ascertain the name and address of the owner of the vehicle, publish in at least one daily newspaper circulating in the area where the vehicle was detained notice of the intention to dispose of the vehicle.

 

The doctrine of 'self-protection'

 

19. In deference to the analysis conducted by the Court of Appeal, a concise statement of the common law and police powers is offered. What follows in this section, however, is not necessary to the ultimate decision and is thus obiter.

 

20. Within the common law, the roots of the principle of requiring legal justification for interference with liberty and the security of the dwelling are profound. In Entick v Carrington [1765] 95 ER 807 the plaintiff sued four people who entered his home and searching for seditious documents, seizing some one hundred pamphlets, for damages for trespass. The search party purported to act under warrant from the Secretary of State in suppression of possible insurrection. The practice of searching by fiat of the executive was condemned as mere custom, having no basis in the common law, the right to liberty excluding unlawful interference where no legal power was identified.

 

21. To translate the dictum of Lord Camden "If it is law, it will be found in our books", modern usage requires a legal title for trespass on the rights of citizens:

 

The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole. The cases where this right of property is set aside by private law, are various. Distresses, executions, forfeitures, taxes etc are all of this description; wherein every man by common consent gives up that right, for the sake of justice and the general good. By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass and even treading upon the soil. If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him. The justification is submitted by the judges, who are to look into the books; and if such a justification can be maintained by the text of the statute law, or by the principles of common law. If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment.

 

22. Much of the authority for police powers derives from the common law. Whereas, such rules may in the past have germinated on the soil of necessity, such as were defined as law continue into the present where statutory intervention has left these in place. In that regard, it is to be noted that the powers in s 23(2) of the 1977 Act do not prejudice or replace existing powers. Section 7(4) of the Garda Síochána Act 2005 also provides that the obligations set out in the legislation, set out below, and the relevant powers conferred do "not affect any powers, immunities, privileges or duties that members of the Garda Síochána have by virtue of any other enactment or at common law." Examples exist where the clear intention is to replace existing common law rules. Hence, the power of arrest for felony has been replaced with a taxonomy whereby arrestable offences replace the misdemeanour-felony distinction and enable arrest, on the same basis of reasonable suspicion of the commission of an arrestable offence where the suspect is also thought on reasonable grounds to have committed such offence; Criminal Law Act 1997 s 4. Two observations arise from this.

 

23. Firstly, subsection 6 of the 1997 Act again iterates that the redefinition based on an arrestable offence, being defined as one carrying 5 years or more imprisonment, is not to "restrict the operation of any enactment restricting the institution of proceedings for an offence" and operates in preservation of the common law in not "prejudicing any power of arrest conferred by law apart from" that section. Hence, the jurisdiction of courts is not affected and arrest powers at common law, not replaced, are preserved. Secondly, the power of citizens to arrest for felony, where reasonably a citizen suspects an individual to be in the act of committing an arrestable offence or where such an offence has, in actuality, been committed, and the citizen reasonably suspects another of having committed that offence, a valid arrest may be effected.

 

24. A police officer can, as a matter of principle, do anything which a citizen can lawfully do; Malone v Metropolitan Police Commissioner [1979] 2 All ER 620. Hence, the Judges' Rules, drawn up in 1912 by judges of the King's Bench require a caution and other safeguards, later added to subsequently, where a suspect is in custody or a police officer has decided to charge a suspect with an offence. But, rule 1 makes it clear that where a police officer is "endeavouring to discover the author of a crime" there is nothing to stop that officer "putting questions in respect thereof to any person" whether "suspected or not" from whom it may be that "useful information may be obtained." Just because a person is sworn in to An Garda Síochána does not deprive that person of the entitlement of any citizen to enquire into any affair in which they are interested. Individuals of whom questions are asked, absent statutory inferences in specified conditions from queries by a police officer, for example under sections 18 and 19 of the Criminal Justice Act 1984, are free not to answer. Similarly, since a citizen is entitled to pick up a discarded item, such as a tissue, Gardaí are entitled to retrieve a used cigarette butt to have the DNA from a suspect's lips analysed as to connection to a crime scene; The People (DPP) v Wilson [2017] IESC 54, [2018] 1 ILRM 1, [2019] 1 IR 96. But the special position of Gardaí, as police officers, is made explicit by s 7(1) of the Garda Síochána Act 2005:

 

The function of the Garda Síochána is to provide policing and security services for the State with the objective of—

 

(a) preserving peace and public order,

(b) protecting life and property,

(c) vindicating the human rights of each individual,

(d) protecting the security of the State,

(e) preventing crime,

(f) bringing criminals to justice, including by detecting and investigating crime, and

(g) regulating and controlling road traffic and improving road safety.

 

25. This is now s 9 of the Policing, Security and Community Safety Act 2024, which adds the functions of "protecting and supporting victims of crime" and "preventing harm to individuals, in particular individuals who are vulnerable or at risk". It follows that general defences in criminal law, such as the right to defend oneself or others are of general application both to citizens and to police officers alike. But, at common law, the duty of police officers to keep the peace, reiterated in the 2005 Act, confer wider powers at common law; Humphreys v Connor (1864) 17 Ir Com Law Rep 1. Often in such cases, particular facts lead towards results which are disputed. As Hayes J said at p 5:

 

The law has not ventured to lay down what precise measures shall be adopted by him in every state of facts which calls for his interference. But it has done far better; it has announced to him and to the public over whom he is placed, that he is not only at liberty, he is bound, to see that the peace is preserved, and that he is to do everything that is necessary for that purpose, neither more nor less.

 

26. Thus, there is a right in a police officer where a breach of the peace is afoot or is reasonably anticipated to arrest those participating; Glanville Williams, Arrest for Breach of the Peace [1954] Crim LR 578. What is needed is a clear principle and while a breach of the peace may be readily identifiable in assembly for the purpose of wreckage of property or the stirring up of a state of menace to safety. 11 Halsbury's Laws (4th edition) defines this thus:

 

For the purpose of the common law powers of arrest without warrant, a breach of the peace arises where there is an actual assault, or where public alarm and excitement are caused by a person's wrongful act. Mere annoyance and disturbance or insults to a person or abusive language, or great heat and fury without personal violence, are not generally sufficient.

 

27. Analysing the existing authorities, many of which claim damages for unlawful arrest, Watkins LJ in R v Howell (Errol) (1981) 73 Cr App R 31 at 37 posits a working principle:

 

We are emboldened to say that there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, an unlawful assembly or other disturbance. It is for this breach of the peace when done in his presence or the reasonable apprehension of it taking place that a constable, or anyone else, may arrest an offender without warrant.

 

28. That analysis is grounded in the existing law and does not represent any attempt to extrapolate a novel principle from settled authorities. There is a danger in so doing of intruding into personal rights and the authority of the Oireachtas to make law. Such novel developments some have seen as having characterised decisions of the Court of Appeal in England and Wales, generating statutory intervention in aid of clarity. This was perhaps the intention of Lord Denning. In Dallison v Caffrey [1965] 1 QB 348 and in Ghani v Jones [1970] 1 QB 693, extensions of police powers on the basis of what was reasonable were promulgated.

 

29. Lord Denning also references the power exercised at common law to preserve crime scenes, an action often taken following a serious offence, but without citing common law authority. The duty to preserve evidence doubtless mandated such steps but s 5 of the Criminal Justice Act 2006 removes any necessity for exploration of common law authority through the conferring of detailed powers where a reasonable suspicion of the commission of a serious offence exists. In the later, Ghani, case a woman disappeared, presumed murdered. The police went to her relations' house, entering by consent, but then searching and removing documents, including three passports of the missing person's relatives. The Court of Appeal ordered the return of those documents on the basis that they were not evidence relevant to a crime and had, in any event, been held long enough. Lord Denning proposed that a lawful arrest enabled a search of a house. He further proposed that invasions of the dwelling were justified by similarly reasonable suspicions to arrest powers. Drawing on R v Waterfield [1964] 1 QB 164, Lord Denning proposed a doctrine of reasonableness as justifying sweeping police powers:

 

Edmund Davies L.J. drew from his unrivalled experience and told us that the great train robbers, when they were in hiding at Leatherslade Farm, used a saucer belonging to the farmer and gave the cat its milk. When seeking for the gang, before they were caught, the police officers took the saucer so as to examine it for finger prints. Could the farmer have said to them: "No, it is mine. You shall not have it?" Clearly not. His conduct might well lead them to think that he was trying to shield the gang. At any rate fit would have been quite unreasonable.

 

What is the principle underlying these instances? We have to consider, on the one hand, the freedom of the individual his privacy and his possessions are not to be invaded except for the most compelling reasons. On the other hand, we have to consider the interest of society at large in finding out wrongdoers and repressing crime. Honest citizens should help the police and not hinder them in their efforts to track down criminals.

 

30. It was through a balance of interests that intrusions were justified on the basis of what was regarded, at the time, as reasonable. As regards the 'doctrine of self-protection', it may be that certain common law rules as to police powers were developed out of experience as to what was necessary for society. These rules may have the ability to develop within the limits of the common law; The People (DPP) v McNamara [2020] IESC 34, [2021] 1 ILRM 350, [2021] 1 IR 472, [2020] 6 JIC 2603. Rather, however, than a general principle of the police protecting themselves, those arrested and the general public, there is a statable rule. Any evidence found on or in the possession of an arrestee which is material evidence on the charge for which he or she is arrested, or on a charge in the contemplation of the arresting officer, or appears, on reasonable cause, to be stolen property or property in the unlawful possession or the arrestee, may be retained by the police for use at trial of the person arrested, or at the trial of any other person on any criminal charge in which the property may be used as evidence; Jennings v Quinn [1968] IR 305, 309. As to limits on what may be regarded as in the possession of an individual on arrest, the earlier authority of Dillon v O'Brien and Davis (1887) 20 LR Ir 300, 16 Cox CC 245, admits of a lawful arrest enabling the seizure of documents in the same room as the accused as being, in that context of a lawful arrest within a premises and without a search warrant, for example when the Gardaí are invited in and then arrest, in the possession of the arrestee; see also Chimel v California 395 U.S. 752 (1969). Search of an individual on arrest can take place to establish identity and to remove dangerous items or that which might facilitate escape; The People (DPP) v McFadden [2003] 2 IR 105. See also The People (DPP) v Quirke [2023] IESC 5. These powers are, so to speak, in the books.

 

31. Later authorities from this jurisdiction confirm certain existing common law powers or replace these, at times, as quoted above, leaving what is already there in place. Hence, searches are mediated, as a general power, by s 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997, as substituted by s 6 of the Criminal Justice Act 2006, a power expressly "without prejudice to any other power conferred by statute to issue a warrant for the search of any place or person." As mentioned, general powers of arrest have mediated from felony/misdemeanour distinctions into serious offence powers based on a more rational distinction.

 

32. In so far as the Director of Public Prosecutions argues for powers to stop vehicles, search them, seize them, to enter dwellings and other properties, or to take property. For each of these a common law or statutory authority which is appropriate must be established. In DPP (Stratford) v Fagan [1994] 3 IR 265, s 109 of the Road Traffic Act 1961 demonstrated a power to control the public highways, in the form of a power to require a motorist to stop when requested by Gardaí. There the power is exercisable on the basis of spot checks but cannot be expressed, absent statutory authority, as enabling powers beyond speaking to those in charge of the vehicle. Where, for instance, a drug search is predicated on the existence of a reasonable suspicion in respect of an individual, which is the law under s 23 of the 1977 Act, that must exist. Random searches based on a region-wide general problem cannot suffice; DPP (Higgins) v Farrell [2009] IEHC 368, [2009] 4 IR 689. Suspicion enables searches under several statutes. In The People (DPP) v Kelly and McGrath [2022] IECA 333, an ongoing operation in the context of a murder with firearms, stopped vehicles, and in respect of the second accused, detained the occupant pending the arrival of assistance and the completion of an initial determination as to what serious offences had been committed. The power used was under s 30 of the Offences Against the State Act 1939, which provided a power to Gardaí "without warrant" to "stop, search, interrogate, and arrest any person, or do any one or more of those things in respect of any person, whom he suspects of having committed or being about to commit or being or having been concerned in the commission of" offences under the Act or such scheduled offences as those related to firearms or explosives. A body had been discovered with gunshot wounds to the head. That vehicle was also seized under s 7 of the Criminal Justice Act 2006, where Gardaí have a power, while in a public place or in a private location lawfully, to seize and retain for use in evidence "evidence of, or relating to, the commission of an arrestable offence".

 

Abuse of power

 

33. Where a power is granted, it must be exercised in good faith and for the purposes for which it was granted by legislation or by the common law. Hence, it may be prudent to carry out spot checks on the public road to ensure compliance with insurance and taxation measures or to speak to drivers in the context of ongoing investigations, but the Gardaí have no entitlement to abuse such powers. If, for instance, members of a particular station party were to develop an animus against a person living in the area because, perhaps of a complaint, the lawful use of a power to stop cars on the road could become unlawful if the highway leading to that person's home were to continually host a checkpoint for no better reason than to harass a despised individual. It is a matter of fundamental law that administrative powers, which include police powers, inure to the benefit of officials for the public good and are there to be used in good faith to further the lawful purpose that generated their existence; East Donegal Co-operative v AG [1970] IR 317, 104 ILTR 81. In England and Wales, where the powers of the police are usefully codified in the Police and Criminal Evidence Act 1984, the code promulgated under the legislation at D 1.1 provides an expression of that principle in stating: "The powers and procedures in this Code must be used fairly, responsibly, with respect for the people to whom they apply and without unlawful discrimination."

 

34. Returning to DPP (Stratford) v Fagan, it is to be noted that the power to stop vehicles on the public highway for the purposes of spot checks and to speak to drivers is not to be exercised arbitrarily or capriciously. Those powers are there, as O'Flaherty J says at 272, "provided the power is exercised bona fide." Finlay CJ, at 269-270 states that "of course if this power were to be exercised by a member of the Garda Síochána in a capricious or arbitrary or improper method it would be wholly illegal".

 

35. Just as a lawful arrest implies the entitlement to search and secure the arrestee, as in McFadden, again for the legitimate purpose not of annoyance, or softening up, but to secure safety, it follows from the requirement of the proper and good faith use of powers that their purpose may imply a lawful objective. Stopping cars on the public highway would be a futile abuse unless Gardaí were to use that power to check the proper display of tax and insurance on windscreens, the safety of the vehicle as a machine and to speak to drivers. But, while this does not go further and enable searches absent reasonable suspicion under a designated power enabling warrantless searches, a power implies a duty to fulfil the purpose of the legal mandate; The People (DPP) v Hannaway [2023] 2 IR 591.

 

36. While protection of a suspect validly arrested or detained, and of those into whose custody he or she is designated, carries the potential to exercise particular powers, it is unnecessary to extrapolate from the existing case decisions any over-arching doctrine. The common law has defined particular powers and duties and no doubt the origin of these was the need to protect those in custody and those in whose power they are, but those rules exist in themselves and there is no necessity to turn the origin of the power into a statement of the power itself.

 

 

The power exercised here

 

37. In reality, there is no necessity to focus on the doctrine behind police powers for a correct analysis of this case. This was not the exercise of an investigative tool by the Gardaí. Rather, the power deployed had no necessarily implied requirement of reasonable suspicion. Nor was it necessary, in fact, to suspect anything against Noel Noonan or his passenger. As the preceding analysis of police powers illustrates, some are laid down through common law decisions and retain their importance while other powers apparently exercised out of necessity are in no need of consideration because, as in the case of the commission, or suspected commission, of a major offence, a statutory intervention has crystalised the nature of the power and its application. Hence, it becomes beyond what is necessary to consider if what was permitted as a development of the common law in such cases as Ghani or Dallison were or were not a correct application of what "is found in our books". Nor is what may be validly implied in a power germane to an analysis of what happened here. Consideration of Hannaway demonstrates that where there is a power to gather evidence, that necessarily indicates the processing of that raw material. In its absence, a power is futile; see the judgments of O'Malley J and Charleton J.

 

38. In contrast, it being accepted that there was a power to stop this vehicle on the public highway where the number plate analysis indicated that no road tax had been paid on the vehicle, this was not the exercise of a police power of investigation. What was happening was generated by an entirely different species of legal authority. Cars that are not taxed, never mind also where the driver is not insured and has no licence to drive, should not be on the public roadway. Where such vehicles are detected, the Oireachtas has conferred a power of seizure. On the text of the 1995 Regulations, this was a vehicle to which Article 4 and the subsequent powers applied, thus the Garda stopping and inspecting the revenue, insurance and licence status of the vehicle and driver engaged a power that did not depend on the existence of an investigation, the commission or suspected commission of a crime, or imply any necessity for reasonable suspicion. To quote "such member may take such steps, including the making of an arrangement with any other person as the member thinks fit, for the detention, removal and storage of the said vehicle." No issue was raised as the good faith of any of the transactions on which the exercise of that power of seizure and detention occured. No factual matrix for any such wild assertion seems present.

 

39. By the time, the next day, the owner of the car turned up, the car had already been found to be transporting what are claimed in the criminal prosecution to be drugs. It is to be noted that she had the option of paying excise duty, proving a valid certificate of insurance to drive and of reimbursing the Exchequer for taxation withheld. Otherwise, the vehicle is subject to disposal. And that is what the next step by the Gardaí was and again there is no factual basis on what has been put before the Court to question the good faith of that obvious and necessary step. From the point of view of the collection of revenue, it cannot be expected that a car would be kept indefinitely; rusting, seizing-up and depreciating. On seizure, the Gardaí had the same ordinary control and power over the vehicle as the owner. From the point of view of ordinary sense, it is integral to any analysis to realise that legal construction is based on what is real and not on argument that divorces reality so that legal concepts, which are grounded in the regulation of people and situations, become an object in themselves. That is law world. People use their cars to go from place to place, for business transport, to bring rubbish to disposal centres, to bring those ailing to hospital or pets to veterinary clinics, to transport perishable shopping like eggs or cheese and to hide contraband. Given that there are over 2 million cars on the roads of Ireland, source statista.com, any seizure is fraught with the danger of concealment or of forgetting by an owner, in circumstances where losing a car to authority may induce panic. It follows that possession of a vehicle in a pound engages both the probable and the improbable. Literally any danger may attend a seizure. There is also whatever duty of care may be engaged in keeping a vehicle, perhaps for days or perhaps for months prior to disposal. So, what is in it; is it perishable; is it dangerous; is it perhaps very valuable; or a sentimental item; is it alive, as in a cherished pet; will it involve on sale perhaps passing drugs into the community? In short, the Gardaí were duty bound to carry out an ordinary inspection. That is what the material put before the Court engages. It is irrelevant that, apparently cool as a cucumber, the accused here turned up the next day with his girlfriend to demand the return of her vehicle. The question is as to the powers and responsibilities necessarily implied by the exercise of the right to seize the vehicle.

 

Comment

 

40. While police, or other investigative powers, are engaged, reasonableness of suspicion and good faith are required. That was very far from this situation which involved a simple check on compliance with tax, insurance and licence to drive and thereby engaged a power of seizure. With that came other statutory powers which were, on the face of the actions here, simply exercised in accordance with the letter of the law.

 

41. Much was made before the trial judge of an area of State responsibility and executive power and both the defence and prosecution submissions would have benefited from the citation of authority. Most surprising was the submission that hearsay as to suspicion should become part of the prosecution case. It is not known how widespread such submissions might be. For the avoidance of doubt, it is useful to reiterate that hearsay evidence, what an informant or other officer has told a Garda member, is not excluded in considering whether an officer in exercising a police power has acted reasonably. Such hearsay is analysed in testimony as to the existence of a state of mind whereby a police power may be exercised; there reasonableness and good faith might be in issue, if challenged by the defence. But that has nothing to do with the jury or with proof of the commission of a crime. As Burns J rightly said in the Court of Appeal, this may be relevant in the absence of the jury on a matter of law. DPP (Higgins) v Farrell rightly defines that state as a suspicion that is fair and reasonable and is honestly held on the basis of the information available to the officer at the time.

 

42. Similarly, it is not necessary here to construe powers of search of a vehicle under s 23 of the Misuse of Drugs Act 1977 as requiring the driver or other suspect to remain with the vehicle. However, to try to clear up a misunderstanding it must be noted that since possession can continue even though someone has left the place in which they have secreted drugs and through having drugs in the custody of another person, it would be surprising if the 1977 Act were to be construed in that way. Where, however, as here, a vehicle is seized and is therefore in the possession of, and becomes the responsibility of, a police officer, those officers are certainly empowered to do with the vehicle what an owner would ordinarily do.

 

Result

 

43. In the result, the order of the Court of Appeal is affirmed but for the reasons set out in this judgment. 

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