AN CHÚIRT UACHTARACH
THE SUPREME COURT
S:AP:IE:2024: 0000168
O'Malley J.
BETWEEN
THE PEOPLE (DIRECTOR OF PUBLIC PROSECUTIONS)
RESPONDENTS
- AND -
NOEL NOONAN
APPELLANT
JUDGMENT of Mr. Justice Gerard Hogan delivered on the 30th day of May 2025
1. At issue in this appeal is the question of whether once a motor vehicle has been lawfully seized by a member of An Garda Síochána under s. 41 of the Road Traffic Act 1994 ("the 1994 Act") the Gardaí are then subsequently entitled to open the boot of that vehicle. I agree with Charleton J. that in these circumstances the Gardaí are entitled to take this step. Nevertheless, as I reach my conclusions for reasons which differ from those advanced on this issue in both the Circuit Court (as court of trial) and in the Court of Appeal, it may be convenient if I now briefly set out my views. For this purpose, I propose to adopt the statement of facts found in the judgment of Charleton J.
2. As it happens, the applicant's appeal against his conviction for possession of controlled drugs was allowed by the Court of Appeal in respect of other grounds which I do not find it necessary to examine. The applicant has, however, been granted leave by this Court to argue one point which was resolved against him both at trial and in the Court of Appeal, namely,the authority of the Gardaí to open the boot of the motor vehicle which he happened to be driving. The vehicle in question had been seized under s. 41 of the 1994 Act because it appeared that it was untaxed and the applicant had no valid policy of insurance which entitled him to drive it on a public road. Following the seizure of the vehicle it was brought to a car pound where upon opening the boot the member who had seized the vehicle, Garda Farragher, found a large quantity of drugs. The Court of Appeal considered that the common law power of self-protection enjoyed by police officers enabled the Gardaí in these circumstances to search the boot of the car.
3. The circumstances in which the motor vehicle which was being driven on a motorway by the accused came to be seized by the Gardaí pursuant to these statutory powers have already been explained by Charleton J. The very fact, however, that the vehicle was lawfully seized pursuant to a statutory power means that the Gardai must be deemed to have the ordinary powers of the driver in respect of the vehicle. This naturally included the power to open the boot.
4. A key part of the State's constitutional identity is that it a society based on the rule of law: Re Article 26 and the Judicial Appointments Commission Bill [2023] IESC 34 (at paragraph 11 of the judgment of the Court delivered by Dunne J.). This means that there must be an appropriate legal basis for the actions of the Gardai with regard to the inspection of motor vehicles and the opening the boot of a car. That legal basis can come from either statute law or from the common law. In the present case one consequence of the (lawful) seizure of a motor vehicle pursuant to the exercise of a statutory power was that the Gardaí can then, generally speaking, exercise all the rights of a private user of that vehicle. This obviously extends to all ordinary actions which a motorist might take such as opening a car door, driving the vehicle or opening the boot of that car. It follows, therefore, that the Gardai were by reason of the prior exercise of the s. 41 seizure power then entitled to open the boot of the car and to examine its contents.
5. In these circumstances it is really unnecessary for me to examine the position at common law and any comments I might make on this point are essentially obiter. While it is true that at common law a police officer has a power of self-protection, this power is most obviously intended to be used in circumstances such as the search of a disruptive prisoner who is threatening violence or where it was necessary to dispose of a suspect packet: see, e.g., the comments of Charleton J. in The People (Director of Public Prosecutions) v. Quirke [2023] IESC 5 at para. 66.
6. This common law power of self-protection should, however, be confined within its established limits as otherwise it might be liberally invoked to justify a wide range of searches of persons and property in a manner never contemplated by those judges who formulated the rule in the first place. For my part, I do not consider that this common law rule can or should be artificially extended beyond its original parameters by a strained interpretation of this kind. It is for this very reason that I find myself in respectful disagreement with the reasoning of Burns J. on this very point when she concluded (at para. 29) that the common law principle of self-protection permitted a search of this vehicle. For my part, I do not think that the facts of the present case could support the conclusion that there were reasonable grounds to fear or suspect that the contents of the boot of the car might pose a risk to the Gardaí or other third parties. It would, of course, have been quite different if there was, for example, reason to suspect the presence of weapons or explosives in the boot.
7. I agree, however, with Charleton J. that if, in any event, there is such a power at common law which is invoked in any given case to justify the actions of the Gardaí it must, so to speak, be "on the books" so that, generally speaking at least, the common law power in question has a recognizable ancestry in the case-law such that it was carried over by Article 50 of the Constitution and later preserved by s. 7(4) of the Garda Síochána Act 2005 (now s. 9(4) of the Policing, Security and Community Safety Act 2024). That is not to say that venerable and long-established common law powers cannot be applied - perhaps even in a novel way - to modern conditions. It is rather that the courts do not enjoy a general free-standing power to develop or even invent new common law powers for the Gardaí in the area of policing beyond the generally established parameters of that common law power in question even if this were thought to be thought to be necessary or desirable.
8. Insofar as Lord Denning MR appeared to suggest the existence of such a wide-ranging power in Ghani v. Jones [1970] 1 QB 693 I would respectfully disagree, at least so far as this jurisdiction is concerned. Such an open-ended principle whereby the courts permitted the creation of new and potentially far-reaching police powers would be inconsistent with the rule of law and would, generally speaking, run contrary to the exclusive legislative role assigned to the Oireachtas by Article 15.2.1.⁰ If, for example, new, additional powers to detain or inspect vehicles are thought to be required on the basis that the existing powers are said to be inadequate this is fundamentally a matter of legislative policy for the Oireachtas to determine.
9. I appreciate that in Director of Public Prosecutions (Stratford) v. Fagan [1994] 3 IR 265 both O'Flaherty and Blayney JJ. appeared to suggest that the common law powers enjoyed by members of An Garda Síochána could at least in some circumstances be given an open-ended interpretation in support of the detention or prevention of crime. This meant that in their view the Gardai should be deemed to have a wide common law power to conduct roadside checkpoints. While it is unnecessary in the present case to examine this principle, I would be reluctant to extend the parameters of Stratford beyond the particular facts of that case. It may be noted in any event that the power to conduct roadside checks is now governed by s. 10 of the Road Traffic Act 2010.
Conclusions
10. In the present case, it is sufficient simply to say that once the vehicle was seized by the Gardaí pursuant to their statutory powers under s. 41 of the 1994 Act, any question of common law powers simply fell away. Once the Gardaí took lawfully possession of the vehicle then it followed that they had the power to exercise all the ordinary functions which the driver of the vehicle might otherwise exercise in the ordinary course of driving the vehicle. This naturally includes the power to open the boot.
11. I would accordingly agree with Charleton J. that in these circumstances the present appeal should be dismissed.