AN CHÚIRT UACHTARACH
THE SUPREME COURT
S:AP:IE:2024:000168
O'Malley J.
Between
The People (at the Suit of the Director of Public Prosecutions)
Respondent/Prosecutor
AND
Noel Noonan
Appellant/Accused
JUDGMENT of Mr. Justice Maurice Collins delivered on 30 May 2025
1. I agree that this appeal should be dismissed.
2. The vehicle that Mr Noonan was driving was lawfully stopped by Garda Farragher and was then lawfully detained by him in accordance with section 41 of the Road Traffic Act 1994 (and the various Regulations made for the purpose of giving effect to that section). That was not disputed. Thereafter the vehicle was, as a matter of law, in the possession and control of An Garda Síochána. I did not understand that to be disputed either. It follows that Garda Farragher was entitled to do that which any person in lawful possession and control of the vehicle could properly do, including opening its boot. His power to do this was a consequence of the vehicle's detention under section 41 and was not conditional upon Garda Farragher having reasonable grounds to search the boot.
3. That is enough to determine this appeal and I would resist the temptation to go further. No question arises in this appeal concerning the powers of arrest of members of An Garda Siochána or of their powers of search of persons and/or of property incidental upon the making of a lawful arrest. Insofar as a power to stop vehicles at common law is concerned, neither party questioned this Court's decision in DPP (Stratford) v Fagan [1994] 3 IR 265 or suggested that it should be reconsidered or over-ruled. Nor did I understand there to be any significant dispute that, in principle, a power to search a vehicle may also arise at common law, though the parties differed as to the scope of that power and the conditions for its exercise. Certainly in People (DPP) v Kelly and McGrath [2022] IECA 333 the Court of Appeal appears to have been of the view that there is a common law power to search a vehicle, at least in certain narrow circumstances (see §249) and while this Court was asked to distinguish Kelly and McGrath on the basis that the facts here are different (as indeed they clearly are), I did not understand Mr Noonan to have invited the Court to hold that the Court of Appeal was wrong.
4. I would prefer to avoid expressing any view on these issues given that they do not fall for determination on this appeal and given that they were not the subject of significant argument. Decisions such as R v Waterfield [1964] 1 QB 164, Dallison v Caffery [1965] 1 QB 348 and Ghani v Jones [1970] 1 QB 693 did not feature in debate. This is not, in my view, an appropriate case in which to seek to plot the outer contours of the common law police powers of arrest, search or seizure. That is not an exercise that can usefully be undertaken in the abstract. No doubt, the capacity of the common law to develop further in this area is constrained, both by the developmental limitations inherent in the common law itself and by the constraints that flow from the provisions of the Constitution. But, in my view, these limitations have nothing to do with Article 50 of the Constitution. Article 50 did not, in my view, freeze the common law as of 1937 or have the effect of curtailing the power of the courts established by or under the Constitution to develop the common law in the post-1937 period, any more than Article 73 of the Free State Constitution had that effect in 1922. The common law cannot, of course, be developed in a way that conflicts with the provisions of the Constitution but it otherwise retains its full vitality in this jurisdiction.
5. For these reasons, and the additional reasons set out in the judgment of the Chief Justice with which I agree, I would dismiss the appeal.