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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/2025/2025IESC22ODonnellCJ.html

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 AN CHÚIRT UACHTARACH

THE SUPREME COURT

S:AP:IE:2024:000168

[2025] IESC 22

 

O'Donnell C.J.

Charleton J.

O'Malley J.

Hogan J.

Collins J.

 

Between/

 

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

 

-and-

NOEL NOONAN

Appellant

Judgment of Mr. Justice O'Donnell, Chief Justice delivered on the 30th day of May 2025.

1.                  The facts in this unusual case are set out in some detail in the judgment of the Court of Appeal (Burns J.; Edwards and McCarthy JJ.) and in the judgment of Charleton J. in this Court. I gratefully adopt his account of the facts, and accordingly will attempt to limit this account to the essential factual matrix giving rise to the legal issue in this case as I see it.

2.                  On 13 February 2017, the Appellant Noel Noonan was stopped on the M7 motorway close to Kildare by Garda Dave Farragher. He was driving a car not owned by him, but rather by his partner. Garda Farragher stopped the vehicle on the basis that the car was not taxed. It transpired that Mr Noonan was not insured to drive the vehicle. He could not produce a driving licence. In those circumstances Garda Farragher decided to exercise the power under regulations enacted pursuant to s. 41 of the Road Traffic Act to detain the vehicle. In the course of this case this has been referred to as a seizure which perhaps suggests a more permanent deprivation or confiscation than the section contemplates. For that reason, it is perhaps preferrable to use the terms used in the section.

3.                  Section 41 of the Road Traffic Act, 1994 (as amended) permits the Minister for Transport after a consultation with the Minister for Justice, to make regulations authorising the "detention, removal, storage and subsequent release or disposal" of a mechanically propelled vehicle in use in a public place where, among other things, the vehicle has been used without insurance, or where the excise duty has not been paid for a continuous period of two months. In this case the vehicle was detained, removed, and stored. Regulations made under the section can authorise the recovery from the owner of the vehicle charges in respect of such detention, removal, and storage, and may also provide for the release of the vehicle, or for the sale or disposal of the vehicle, but no disposal can take place before an expiration of three weeks from the date of detention and after two weeks' notice of the intended disposal has been given. It is very clear that the provision is a Road Traffic Act measure rather than a general criminal justice measure, and is directed towards the enforcement of the legal obligation to tax a vehicle and to insure its use in a public place. Regulations were made as permitted under s. 41 (Road Traffic Act 1994 (Detention of Vehicles) Regulations 2011 S.I. No. 460/2011) by the then Minister for Transport, Tourism and Sport. It is accepted that the Regulations give effect to the provisions of s. 41, and that nothing in this case turns upon the detail of the Regulations.

4.                  A tow truck removed the car that Mr Noonan was driving from the roadside. Garda Farragher dropped Mr Noonan to a cross-roads close to the train station in Kildare. The car was eventually taken to a compound. The length of time involved in doing so figured largely in the trial but is not relevant to the issue in this appeal. Before driving to the compound, Garda Farragher received a message to call Inspector Sugrue in Limerick, and when he spoke to him, Inspector Sugrue informed him that he had information that there were drugs contained in the car. Garda Farragher, on arrival at the compound, opened the boot of the vehicle and found a package which was subsequently established to be a quantity of drugs, chiefly amphetamines, having a market value of approximately €137,800.

5.                  After a protracted ten day trial, which at times followed an unusual course, the Appellant was convicted, inter alia, of possession of drugs for unlawful sale or supply contrary to s. 15A of the Misuse of Drugs Act, 1977, as amended, and sentenced to nine years imprisonment of which the final six months was suspended.

6.                  The Appellant appealed to the Court of Appeal on a number of grounds including grounds concerning the lawfulness of what was described as the search of the vehicle, and the admission into evidence of Garda Farragher's account of his conversation with Inspector Sugrue. The Court of Appeal allowed the Appellant's appeal on the admission in evidence of the conversation between Garda Farragher and Inspector Sugrue and directed a retrial. That issue does not arise on this appeal. The Court of Appeal however dismissed the Appellant's appeal related to the lawfulness of the search. On this appeal the Director of Public Prosecutions did not assert (as had been contended at the trial) that the search had been carried out pursuant to s. 23 of the Misuse of Drugs Act 1977, but rather by virtue of a power to do so at common law. The judgment of the Court of Appeal referred to a judgment of this Court in The People (DPP) v Quirke [2023] IESC 5, [2023] 1 ILRM 225 (Charleton J.) which discussed powers of search, and at paragraph 65 referred to the fact that at common law a person described as a prisoner could be searched if he behaved in such a way as to make it prudent to search him for weapons. The Court of Appeal considered that Garda Farragher was entitled to search the car because what was described as "the doctrine of self-protection" extended to the protection of the staff and members of the public in the compound, and therefore permitted a search of the car after it had been detained, to ensure that it did not contain contraband or weapons or anything else that might be a danger.

7.                  The Appellant has appealed against this aspect of the judgment contending that the search was unlawful and - presumably - that this rendered the evidence in relation to the finding of the amphetamines inadmissible, although this was not spelt out. This Court granted leave to appeal on this point ([2025] IESCDET 3). Charleton and Hogan JJ. deliver judgments in this matter which would dismiss the appeal and also contain certain obiter observations. For my part I would like to say a little more than my colleagues about the issue to be resolved in this case, while reserving my position, and thus saying less, on the broader matters discussed by them and which were not the subject of argument on this appeal.

8.                  It is important to be clear about what is involved in this appeal. It is a very narrow issue. It was not in contest that Garda Farragher had power to stop the car. Nor is it argued that once the boot was opened there was any legal objection to Garda Farragher taking possession of the parcel of tablets which turned out to be amphetamines. It is not necessary therefore to explore the common law or statutory powers of the Gardaí in either respect. The issue then is simply the power of Garda Farragher to open the boot of the car when it was being detained pursuant to the powers conferred by s. 41.

9.                  Arguably, both the terms search and seizure, which have been used throughout the argument, are not apt to describe what happened in this case. Furthermore, much of the argument starts from an assumption that every step taken by members of the Gardaí in respect of a criminal trial must be authorised by some express, and normally statutory, authorisation. But that is not necessarily so. To take a simple example, it is not necessary to obtain a search warrant to enter a house if the owner invites the Gardaí in and permits a search. Similarly, it is not a trespass or in any way unlawful nor does it require any express statutory authorisation, to enter on premises with the permission of the owner. Statutory authorisation is normally only required where something is sought to be done against the will of an individual who is otherwise entitled to refuse permission or consent. In this context, if Garda Farragher had asked Mr Noonan to open the boot of the car when he was stopped, then Mr Noonan might have refused and if so a different analysis might be necessary. But if he had agreed to open the boot and Garda Farragher had seen what he suspected to be drugs, then there would be no valid objection to the giving of that evidence, and no question that it would be necessary to point to some provision authorising Garda Farragher to do so.

10.              The argument in this case proceeded on the assumption that notwithstanding the original position of the Director and indeed the ruling of the trial judge, that the opening of the boot was not authorised by s. 23 of the Misuse of Drugs Act 1977. That section permits searches of vehicles: a member of the Gardaí who has reasonable grounds for believing that a person is in possession of drugs may search any vehicle in which he or she believes the drugs to be located. It appears to have been assumed in this case that while this power could have been invoked (assuming that Garda Farragher was of the necessary belief) when Mr Noonan was initially stopped on the M7 (and indeed the whole prosecution was based upon the contention that Mr Noonan was at that point in possession of the car and its contents), that position no longer applied once the vehicle was detained and removed to the compound and Mr Noonan went his separate way. I am prepared to accept this assumption for the purposes of this argument while noting that it was not the subject of argument. But if so, that can only be because his possession was broken by the detention and removal by the Gardaí of the vehicle under s. 41 and which put the Gardaí in lawful possession of the vehicle for the purposes of the section, and certain consequences flowed from that.

11.              Indeed, this is exactly what Garda Farragher understood to have occurred. He said "the car was now in garda possession, under our control ...". If so, the Gardaí were in control of the vehicle, and in a position to look inside it, take possession of it, open the glove compartment, and if necessary the boot, and consent to anyone else doing so. I do not consider that the Gardaí had all the powers of an owner but they did have the powers of a person in lawful possession of the car which clearly encompassed opening the boot. (It is not irrelevant that this was indeed the position of Mr Noonan when stopped. Although not the owner of the car and not driving it lawfully, he was still in possession of it and entitled to open the boot). If so, it was not in dispute that they were entitled to take and retain anything in the car which they considered to be evidence of a crime.

12.              If this is correct, then it is not necessary to go further and explore the limits of a common law power to search, seize and retain evidence which certainly exists. I share Charleton J.'s unease with a suggestion that there is a doctrine of self-protection permitting an extensive search of a vehicle in the circumstances, but I am reluctant to attempt any authoritative delineation of the proper boundaries of common law powers in the absence of detailed argument on that point. I do not think that the Court of Appeal judgment goes much further than holding, as I would, that in the circumstances the Gardaí were entitled to open the boot and detain the packet.

13.              Hogan J. has previously suggested that there is a limitation on the development of the common law in the aftermath of the coming into force of the Constitution. I have already expressed my reluctance to agree with this, at least without detailed argument (McGee v Governor of Portlaoise Prison and Ors [2023] IESC 14, [2023] 1 I.L.R.M. 305, paragraphs 73-74) and my inclination to agree with the views expressed by Keane J. in Iarnród Éireann v Ireland [1996] 3 I.R. 321, 366, and would respectfully maintain that position. Nor do I find it helpful to invoke Article 50 of the Constitution in this context although I doubt that this difference of approach would lead to a difference of outcome in most cases and would prefer to debate that point where it arises and could be decisive. It is undoubtedly the case that the common law develops incrementally. There are limits to such development. But I do not think that the question of whether any development is correct or permissible involves consideration of the law as it stood in 1937. Apart from the difficulty of identifying a sound basis for such an approach, and a workable standard, it would, it seems to me, also be an exercise in futility: almost by definition any common law development can claim descent from some root predating 1937 or 1922, so the argument would become a rather sterile one as to the extent to which it could be said to follow from some pre-constitutional (and permissible authority) rather than a post constitutional (and on this approach, illegitimate) decision.

14.              Finally, the argument in this case has proceeded on an unspoken assumption that the lawfulness of the search of the vehicle is an issue which if decided in favour of the Appellant would entitle him to succeed in the appeal and have his conviction quashed on this ground also. However, the lawfulness of any search is only an intermediate step on the way to determination of the admissibility of any evidence obtained in consequence. Thus, if it was determined that the search was unlawful, but did not involve a breach of constitutional rights, sometimes described slightly misleadingly as a "mere illegality", an issue would arise as to the admissibility of the evidence in those circumstances: The People (DPP) v JC [2015] IESC 31, [2017] 1 IR 417. Similarly, if it were determined that the search involved a breach of constitutional rights, it would be necessary to decide if the evidence should be excluded by reference to the test in that regard set out by this Court in The People (DPP) v JC. That, it should be observed, might in some cases require evidence. For that reason, and since it would in any case be a matter in the first instance for the trial judge, it is sufficient to say that it is not at all clear that even a determination that the Garda did not have power to open the boot would lead to the exclusion of the evidence.

15.              As the judgment of the Court of Appeal observes, the trial proceeded in this case in an unusual manner, which may in turn have given rise to some of the difficulties in this appeal. However, if the matter had been properly raised at the time the evidence was sought to be admitted (and it was not) and had been properly analysed and presented, then it seems to me that it would have been necessary for the trial judge to determine a number of matters before deciding that the evidence was or was not admissible. First, it was necessary to determine whether the search was permitted by s. 23 of the 1977 Act. Second, whether, if not, it was permitted either by the terms of s. 41 as interpreted, or by its effect. Third, if not permitted under either provision or by reason of the possession of the vehicle by the Gardaí, then whether such a search was illegal and if so whether that rendered the evidence inadmissible, and fourth if such illegality involved a breach of constitutional rights, and again, if so, whether this rendered the evidence inadmissible. It would be desirable that a trial judge would rule on each of these matters so that if the matter was appealed, the Court of Appeal could address all the issues in the event that it was to take a different view from the trial judge. In this case the argument falls at the second hurdle, at least, by reason of the Gardaí having possession of the vehicle, and therefore certain powers, as an effect of a s. 41 detention. The search, or perhaps more correctly the opening of the boot of the car, involved no illegality. I would dismiss the appeal.

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