Search warrant not invalidated by inclusion of an error which did not mislead

In the matter of an appeal pursuant to section 34 of the Criminal Procedure Act 1967.

The Director of Public Prosecutions (prosecutor) v James Edgeworth (defendant).

Criminal Law - Warrant -Search and seizure - Validity - Warrant issued by Peace Commissioner - Warrant in form designed for use by district judge - Peace Commissioner empowered to act in respect of defined counties - Whether warrant required to recite that Peace Commissioner empowered to act in respect of particular county - Misuse of Drugs Act 1977, section 26 - Courts of Justice Act 1924, section 88.

The Supreme Court (the Chief Justice Mr Justice Keane, Mrs Justice Denham, Mr Justice Murphy, Mr Justice Murray and Mr Justice Hardiman); judgment delivered 29 March 2001.

A search warrant was not invalidated by the inclusion of an error which was not calculated to mislead and which did not in fact mislead, and which did not relate to any statutory condition or requirement relating to the power to issue the warrant. Accordingly, the inclusion of a heading which associated a warrant with the District Court when in fact it had been issued by a peace commissioner did not invalidate a warrant issued under section 26 of the Misuse of Drugs Act 1977. Neither was it necessary to recite the county for which the peace commissioner who had issued the warrant had been appointed, notwithstanding that there was a territorial limitation on the powers of a peace commissioner by virtue of section 88 of the Courts of Justice Act 1924, since the warrant of appointment in relation to the peace commissioner could be produced at trial to prove the counties for which the particular peace commissioner was appointed.

The Supreme Court so held in answering in the negative questions posed by the Director of Public Prosecutions as to whether the trial judge had been correct in law in ruling that the search warrant at issue in the trial had been invalid.

Patrick Gageby SC and Brendan Grehan BL for the prosecutor; Brendan Grogan SC and Elva Duffy BL for the defendant.

Mr Justice Hardiman said that the defendant had been tried in the Dublin Circuit Criminal Court on charges alleging breaches of sections 15 and 3 of the Misuse of Drugs Act 1977, as amended. After the jury had been empanelled, a preliminary point had been argued in relation to the validity of a search warrant under which the Gardai had searched certain premises. On this point being resolved in favour of the defendant, with the consequence that a considerable body of evidence fell to be excluded, the defendant had been found not guilty by direction of the learned trial judge, His Honour Judge Matthews, on both counts.

The Director of Public Prosecutions had referred to the Supreme Court a point of law pursuant to section 34 of the Criminal Procedure Act 1967, in the following terms: "Whether the learned trial judge was correct in law in holding that notwithstanding evidence of the appointment of the commissioner and due issue of the warrant, it was bad in law and void and the entry unlawful because: (a) it failed to assert that the Peace Commissioner who signed it was a Peace Commissioner for the County of Dublin, and (b) it was headed `The District Court."'

Mr Justice Hardiman said that this was not the only ground argued at the trial against the validity of the warrant: the first ground related to the proposition that the peace commissioner had not formed any view on the grounds put forward to support the issue of the warrant, but merely accepted that the garda making the application was sincere in his view of the said grounds. Although there was no absolutely express ground on which the preliminary issue had been decided in favour of the defendant, it seemed likely from the transcript that the ground was substantially the ground identified by the DPP as the subject of this appeal.

Mr Justice Hardiman said that the warrant had been signed by a peace commissioner. Under her signature, the words "Judge of the District Court" had been crossed out and the words "Peace Commissioner" written below the deleted words, in capital letters. The warrant itself was in common form and was headed with the official emblem of the Harp with "An Chuirt Duiche" on one side and "The District Court" on the other. Underneath that was written "Misuse of Drugs Act 1977, section 26" and in capital letters "Search Warrant Dublin Metropolitan District."

From the evidence of the garda who had applied for the warrant and the peace commissioner who had issued it, it was clear that the application had been made to the peace commissioner in her capacity as a peace commissioner for the County Borough of Dublin and the County of Dublin and the counties immediately adjoining that county. Her warrant of appointment had been produced to the learned trial judge.

The grounds of challenge were limited to two, namely, whether the warrant had been invalidated by the failure to specify that the peace commissioner was a peace commissioner for the County of Dublin, and by the fact that the warrant was entitled "The District Court".

Mr Justice Hardiman said that section 88 of the Courts of Justice Act 1924 provided that the Minister for Justice, Equality and Law Reform might by warrant under his hand appoint and remove fit and proper persons in each county to be called peace commissioners "to perform and exercise within such county and (if so expressed in his warrant of appointment) within the counties immediately adjoining such county the duties and powers of peace commissioners under this Act."

Section 26 of the Misuse of Drugs Act 1977 provides that "if a Justice of the District Court or a Peace Commissioner is satisfied by information on oath of a member of the Garda Siochana that there is reasonable ground for suspecting that . . . such Justice or Commissioner may issue a search warrant mentioned in subsection (2) of this section."

Mr Justice Hardiman said that no question arose as to whether the peace commissioner was in fact so satisfied or as to whether the evidence available allowed her rationally to be so satisfied. Nor did any question arise as to whether the warrant issued pursuant to the power just recited was in any particular form. It appeared to be common case that so long as the warrant complied with section 26(2) of the 1977 Act, no particular form of warrant had been prescribed or was required.

The protection given by Article 40.5 of the Constitution in relation to the inviolability of the dwellinghouse was one of the most important, clear and unqualified protections given by the constitution to the citizen. In the present case, forcible entry to the premises in question could be secured "in accordance with law", as required by Article 40.5, by the operation of section 26 of the 1977 Act. There was no issue before the court as to the adequacy of the information before the peace commissioner so as to comply with section 26. Turning to the warrant, Mr Justice Hardiman said that insofar as its form had been laid down by statute, it complied with the statutory requirement. The warrant was headed "The District Court" and this related to the fact that a District judge was entitled to issue such warrants. No special form had been provided by the authorities for use when the application for a warrant was made to a peace commissioner and not to a District judge. This was a regrettable omission but was not such as to invalidate a warrant in the form of the present one. The present warrant featured an inappropriate statement on the face of the document whose affect was to associate the document with the District Court whereas in fact it had been issued without any application to a judicial personage at all. It was not, however, calculated to mislead and there was no evidence before the learned trial judge that any person was in fact misled. The status of the person actually issuing the warrant appeared clearly on its face. The situation could be contrasted with that in DPP v Dunne [1994] 2 IR 540 or Simple Imports Ltd v The Revenue Commissioners [2000] 2 IR 243. In the latter case, the court had held that before a district judge issued a warrant pursuant to the Customs Consolidation Act 1876, he must be satisfied that a customs officer suspected that there were uncustomed or prohibited goods on particular premises and that that suspicion was reasonable. The warrants in question omitted the recitation of the existence of a cause for suspicion which was "reasonable" and were struck down as invalid. Similarly, in Dunne the warrant in question, which was in the same form as the warrant in the present case, had an essential averment struck out of its body. This was the averment that a person was in possession of a controlled drug "on the premises to which the warrant related." This was plainly one of the requirements of section 26(1)(a). Mr Justice Carney had held that he could not act on the proposition that the words struck out of the body of the warrant had been so struck out by inadvertence because "such an approach would facilitate the warrant becoming an empty formula."

Mr Justice Hardiman said that in both of those cases, there had been a failure to demonstrate that the conditions laid down by the legislature had in fact been met. In the present case, the position was quite different: All the statutory criteria could be seen, at least on a prima facie basis, to have been met. The misdescription involved in the use of the heading "The District Court" was not a breach of any condition or criterion imposed by the legislature and was simply an error. There was no basis in law for the proposition that this error invalidates a document which accords with all specified requirements of the law.

Turning to the objection that the peace commissioner was described as such without the addition of a county or counties for which she held this appointment, Mr Justice Hardiman said that he believed that the appointment of a peace commissioner was subject to a territorial limitation. Section 88 of the 1924 Act provided for the appointment of such peace commissioners "in each county." They were so appointed "to perform and exercise within such county . . . the duties and powers of Peace Commissioners under this Act." Since this is the general power of a peace commissioner it was not necessary for the 1977 Act expressly to spell out a territorial limitation on the power either of a peace commissioner or a district judge, nor did the omission of the latter Act to do so empower a peace commissioner to issue warrants for an area outside the county in respect of which she had been appointed or the adjoining counties, as the case might be.

Mr Justice Hardiman said that it followed from this that, if at the trial the warrant of appointment of this particular peace commissioner had not been shown to extend to the area where the premises sought to be searched were situated, this would have been fatal to the validity of the warrant. But there was no such omission at the trial and the uncontradicted evidence was that her appointment was in respect of the relevant county. A warrant issued under the provisions of section 26 of the 1977 Act was not required either by the terms of that section or by any general enactment or rule to carry on its face a statement of the counties to which a peace commissioner's warrant of appointment relates. The omission to do so was not a breach of any condition laid down by law for the issue of a warrant.

Mr Justice Hardiman said that he would determine the question settled by the Director of Public Prosecutions, and set out at the beginning of the judgment, in the negative.

The Chief Justice Mr Justice Keane, Mrs Justice Denham, Mr Justice Murphy and Mr Justice Murray concurred.

Solicitors: the Chief State Solicitor for the prosecutor; Gerard Murphy (Bray) for the defendant.