High Court allows acquittal where unlawful search occurred but evidence admitted due to inadvertence.

THE HIGH COURT

[2026] IEHC 104

[Record No. 2025/132SS]

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857

AS EXTENDED BY SECTION 51 OF THE COURTS (SUPPLEMENTAL

PROVISIONS) ACT 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA

DIARMAID LOUGHNANE)

APPELLANT

AND

RICHARD DAVIS

RESPONDENT

APPROVED JUDGMENT delivered by Mr. Justice Micheál P. O’Higgins on 11th day of February 2026

Introduction

1. This is an appeal by way of Case Stated pursuant to section 2 of the Summary Jurisdiction Act 1857, as extended by the Courts (Supplemental Provisions) Act 1961, on a point of law for the opinion of the High Court. The Director of Public Prosecutions is appealing the decision of District Judge Andrew Cody to dismiss a criminal charge against the respondent alleging that he was in possession of cocaine, a controlled drug, in his dwelling on the 27th October 2022.

2. The case turns on an issue of statutory interpretation as to the correct meaning of the phrase “accompanied by” in s. 26 (2) of the Misuse of Drugs Act 1977 (as amended) (the “1977 Act”). The issue has importance beyond the facts of the respondent’s case because the phrase is used in many other statutes concerned with search warrants and garda powers. The second issue in the case concerns the approach a trial judge should take when assessing the admissibility of evidence obtained where the authority of a search warrant may have been exceeded.

Background facts

3. The respondent came before District Judge Cody at a sitting of Tullamore District Court on 16th October 2023. He faced a criminal charge particularised as follows: “On the 27th October 2022 at 5 St Cormacs Pk Kilcormac Offaly in said District Court Area of Tullamore, had unlawfully in your possession a controlled drug, to wit, namely cocaine.

Contrary to Section 3 of the Misuse of Drugs Act 1977 and

Contrary to [section] 27 (1) of the Misuse of Drugs Act 1977 as substituted by Section

6 of the Misuse of Drugs Act, 1984.”

4. The respondent was represented by Patrick Martin, solicitor. The appellant was represented by a Sergeant in An Garda Síochána. The prosecution called evidence from Garda Helen Colleran, Garda Diarmaid Loughnane and Sergeant Pat O’Connell.

5. To aid brevity, I will refer to the suspected drugs found during the search as simply “the cocaine”. That was the word used in the Case Stated. That should not be taken as a finding that the substance in question was cocaine, one way or the other.

6. It is apparent from the Case Stated that Garda Colleran, having sworn an information, obtained four search warrants on 26th October 2022. Three houses were searched on the morning of 27th October 2022, and one house was searched that evening. The first house searched was 5 St. Cormac’s Park (the respondent’s dwelling), the second was Fairgreen Street and the third was Bridge Street. The fourth house searched was in Kilcormac. As to distances, Fairgreen Street is about 3 to 4 minutes’ walk from St. Cormac’s Park, and Bridge Street is about 5 minutes’ walk around the corner from St. Cormac’s Park.

7. As required under the Case Stated procedure, I will take the facts as found by the District Judge in the Case Stated itself:

(a) The holder of the search warrant was Garda Colleran.

(b) Garda Colleran had authority to carry out the acts as authorised by the search warrant.

(c) Garda Loughnane had no authority to do any of the acts set out in the warrant unless he was accompanying Garda Colleran.

(d) The search of the respondent’s dwelling commenced at approximately 7:40 am.

(e) Garda Colleran entered 5 St. Cormac’s Park through the front door.

(f) Garda Colleran then searched an upstairs bedroom.

(g) Garda Colleran then went into a sitting room before leaving the premises.

(h) Garda Colleran remained at 5 St. Cormac’s Park for a “few minutes”.

(i) Garda Loughnane entered 5 St. Cormac’s Park from the rear in or around the same time Garda Colleran entered from the front.

(j) Garda Loughnane searched the rear shed and garage.

(k) Garda Loughnane found the cocaine “at the closing stages” of the search.

(l) Garda Loughnane then examined and inspected the cocaine.

(m) Garda Loughnane then seized the cocaine.

(n) Garda Colleran attended at a separate address at Fairgreen Street at 8:10 am to search that property.

(o) Garda Colleran then left Fairgreen Street and carried out a search at another address at Bridge Street.

(p) The searches at Fairgreen Street and Bridge Street were unrelated to the search of the respondent’s dwelling at St. Cormac’s Park and there was no necessity for the searches to be conducted simultaneously.

(q) Garda Colleran subsequently returned to 5 St. Cormac’s Park.

8. Judge Cody felt that the fundamental question he had to consider was whether Garda Loughnane was accompanying Garda Colleran at the time he found, inspected and seized the cocaine. In the view of the judge, Garda Colleran failed to appreciate the limits placed on her authority and the authority of the other gardaí who were supposed to be accompanied by her while searching 5 St. Cormac’s Park in that she failed to appreciate that only when she, the authorised officer, accompanied those other members, could those other members:

• Enter the premises

• Search such premises

• Search any persons found thereon

• Examine any substance, article or other thing found thereon

• Inspect any book, record or other document found thereon

• Seize the substance, article, document or other thing

• Detain the substance, article document or other thing

9. The District Judge stated that Garda Colleran believed that all she was required to do in effecting and acting upon the warrant was knock on the door of the property, produce the relevant warrant, and enter the property, and that she could then leave after a few minutes. The judge found as a fact that this is what she did, leaving Garda Loughnane unaccompanied by her and therefore, in the judge’s view, removing from Garda Loughnane any authority to continue to search, examine, inspect, seize or detain the suspected drugs.

10. The District Judge reasoned that, in the absence of any definition within the 1977 Act, the words “accompanied by” in s. 26 must be given their ordinary meaning. He stated that, in ordinary language, to be “accompanied by” someone means that a person “goes along” with another person. He considered that that can involve being in the physical presence of someone else, or within a distance of them that permits visual and auditory communication between them. In a careful analysis, Judge Cody distinguished the present case from the decision of the Court of Appeal in People (DPP) v. Boggans [2015] IECA 46.

11. In reaching his conclusion that Garda Loughnane was not “accompanied by” Garda Colleran when he found and seized the cocaine, Judge Cody emphasised the following evidential findings:

• There was no evidence that Garda Colleran was in any manner managing or directing operations, or had any further involvement in the search of 5 St. Cormac’s Park subsequent to her leaving the premises.

• There was no reason proffered as to why the searches at other properties were being conducted simultaneously, nor was any good reason proffered as to why Garda Loughnane was not accompanied by Garda Colleran.

• There was no evidence of any communication between Garda Colleran and Garda Loughnane from the time they both entered 5 St. Cormac’s Park until Garda Colleran returned from searching other properties.

12. Based on those findings, the judge was satisfied that Garda Loughnane’s continued search and subsequent seizure, and detention of the cocaine were illegal. In consequence of this finding of unlawfulness, the judge dismissed the prosecution against the respondent.

13. For completeness, I should also mention that after the prosecution had initially closed its case and called evidence from Garda Colleran, Garda Loughnane and Sergeant O’Connell, the respondent’s solicitor sought a direction from the court of no case to answer on the basis that none of the other gardaí present were empowered to carry out a search in the absence of the authorised officer. Having heard submissions from both sides, Judge Cody indicated his preliminary view that the warrant holder should have been in the vicinity of the place where the search was being carried out. In the circumstances, the judge decided (para. 15(h) of the Case Stated) that it was appropriate to allow the prosecution to reopen the case for the limited purpose of clarifying how far away Garda Colleran was from the location of the search on the day in question.

14. Garda Colleran then gave further evidence which is summarised at paras. 16 – 18 of the Case Stated. Having heard the additional evidence and submissions, Judge Cody gave the ruling summarised above and dismissed the charge. The appellant now appeals that decision.

Questions in the Case Stated

15. The appellant (DPP) requested the District Judge to state a case to the High Court on the following questions of law:

(a) Was I correct to rule that, when the search was being conducted at the time the cocaine was found, seized and detained by Garda Loughnane, he was not at that time “accompanying” Garda Colleran?

(b) If I was correct, was I correct to rule that there was no good reason why Garda Loughnane was not, at the time the drugs were found, seized and detained, accompanying Garda Colleran?

(c) If I was correct on the two foregoing questions, was I correct to rule that the search, at the time the cocaine was found, seized and detained by Garda Loughnane, was illegal?

(d) What effect does this have on the admissibility of the evidence?

(e) Was I correct in law to acquit the respondent of the offence?

Misuse of Drugs Act 1977

16. Section 26 of the Misuse of Drugs Act 1977 as substituted by s. 13 (c) of the Misuse of Drugs Act 1984 provides as follows: “(1) If a Justice of the District Court or a Peace Commissioner is satisfied by information on oath of a member of the Garda Síochána or if, subject to the provisions of subsections (2) and (2A) of Section 8 of the Criminal Justice (Drug Trafficking) Act 1996, a member of the Garda Síochána not below the rank of superintendent is satisfied that there is reasonable ground for suspecting that –

(a) a person is in possession in contravention of this Act on any premises of a controlled drug, a forged prescription or a duly issued prescription which has been wrongfully altered and that such drug or prescription is on a particular premises or other land, or

(aa) opium poppy, a plant of the genus Cannabis or a plant of the genus Erythroxylon is being cultivated contrary to section 17 of this Act on or in any premises or other land, or

(b) a document directly or indirectly relating to, or connected with, a transaction or dealing which was, or an intended transaction or dealing which would if carried out be, an offence under this Act, or in the case of a transaction or dealing carried out or intended to be carried out in a place outside the State, an offence against a provision of a corresponding law within the meaning of section 20 of this Act and in force in that place, is in the possession of a person on any premises, such Justice, Commissioner or, as the case may be, member may issue a search warrant mentioned in subsection (2) of this section.

(2) A search warrant issued under this section shall be expressed and operate to authorise a named member of the Garda Síochána, accompanied by such other members of the Garda Síochána and such other persons as may be necessary, at any time or times within one month of the date of issue of the warrant, to enter (if need be by force) the premises or other land named in the warrant, to search such premises or other land and any persons found therein, to examine any substance, article or other thing found thereon or therein, to inspect any book, record or other document found thereon and, if there is reasonable ground for suspecting that an offence is being or has been committed under this Act in relation to a substance, article or other thing found on such premises or other land or that a document so found is a document mentioned in subsection (1) (b) of this section or is a record or other document which the member has reasonable cause to believe to be a document which may be required as evidence in proceedings for an offence under this Act, to seize and detain the substance, article, document or other thing as the case may be.

(3) Where any premises or other land is entered pursuant to a warrant issued under this section, the member of the Garda Síochána named in the warrant may do either or both of the following:

(a) arrest without warrant any person or persons found on such premises or other land for the purpose of searching him or them,

(b) so arrest any such person or persons and keep him or them, as may be appropriate, under arrest until such time as such of the powers of search or examination as he wishes to exercise pursuant to the warrant have been exercised by him.

(4) In this section –

“land” includes any structure on land; “structure” means building, structure or any other thing constructed, erected, placed or made on, in or under any land.”

Issues for determination

17. It seems to me the following issues of law arise for determination in this case:

(i) Whether Garda Loughnane was “accompanied by” Garda Colleran (within the meaning of s. 26 of the Misuse of Drugs Act 1977 (as amended)) when he found the cocaine; and

(ii) If not, what legal consequences should follow as to the admissibility of Garda Loughnane’s evidence concerning the finding of the drugs and the decision to dismiss the charge? For ease of reference, and for the purpose of the discussion that follows, I will refer to Garda Colleran who applied for and was named in the warrant as the “authorised member”.

Submissions of the Director of Public Prosecutions

18. Counsel for the DPP submits that Garda Colleran lawfully held a search warrant and entered 5 St. Cormac’s Park on foot of same. Further, the fact that she left 5 St. Cormac’s Park shortly after entering the property, and entered another premises in close proximity for which she also held a search warrant, did not deprive the gardaí who had accompanied her on entry to 5 St. Cormac’s Park of their entitlement to continue the search. The District Judge interpreted the words “accompanied by” in s. 26 of the 1977 Act in an overly restrictive and unrealistic manner which would disproportionately restrict gardaí from effectively using s. 26 as a means by which drug offences can be investigated.

19. While there is no statutory definition of “accompanied by” within the 1977 Act, the phrase is used across the statute book with respect to provisions involving search warrants, allowing gardaí and/or other authorised persons to be accompanied by others in the course of a search. The Director lists some 17 statutes wherein the phrase is used.

20. Counsel relies upon the decision of the Court of Appeal in Boggans in support of the proposition that the District Judge’s decision was disproportionate given the context in which the search of the respondent’s premises occurred. The judge should not have interpreted the requirement that Garda Loughnane be “accompanied by” Garda Colleran at all times in such a prescriptive manner. Garda Colleran, who obtained the warrant lawfully, entered the respondent’s dwelling along with Garda Loughnane. The search of the premises lasted approximately 30 minutes. Garda Colleran left the respondent’s address during the course of the search to execute a search warrant at another address before later returning. While she may not have been present when Garda Loughnane found the cocaine, counsel submits that the authorised member was not required to be present for the duration of the search in the manner suggested by the District Judge. The District Judge’s decision limits the conduct of a search to conditions which may bear little resemblance to both the operational backdrop of a given situation and the fact that search warrants may be obtained and access gained in various circumstances from a temporal, technical and physical perspective.

21. While the District Judge accepted that “accompanied by” did not equate to immediate proximity such that gardaí in other rooms to the warrant holder would be deprived of a power to search, the judge held that the authorised member temporarily leaving a house to search a property nearby caused other gardaí to no longer be “accompanied by” the authorised member, even though the authorised member returned to the address in early course. Such a conclusion, says the DPP, amounts to an arbitrary threshold which runs contrary to decades of garda practice.

22. Moving to the second issue as to the consequences of any finding of illegality, counsel for the DPP submits that, even if the District Judge was correct as to the meaning of “accompanied by” in the section, the judge failed to determine whether the evidence should have been admitted, notwithstanding any conclusion that the evidence was obtained unlawfully. In particular, the judge failed to consider the meaning of the words spoken and gestures made by the respondent following the seizure and assess whether they were consistent with an acknowledgement by him that the cocaine was present and in his possession.

23. The findings of the District Judge appear to have been made in the context of a ‘good faith’ belief on the part of Garda Colleran that she acted as she did “because [she] had to execute other warrants”. Both the conduct of the authorised member and the operational backdrop are important when considering the admissibility of evidence where there has been a finding that a search was unlawful, but where the breach arose through clear inadvertence on the part of the gardaí.

24. Counsel relies on the well-known decision of People (DPP) v. J.C. [2017] 1 IR 417 where the Supreme Court restated the “exclusionary rule” as per People (DPP) v. Kenny [1990]

2 IR 110. Where evidence is obtained illegally, but where the illegality occurs through inadvertence such as where there has been an honest mistake (such as in this case, where there existed a belief that the other warrants relating to nearby properties had to be executed) a trial court can admit the evidence, notwithstanding such a finding of illegality. In the present case, the authorised member lawfully obtained and possessed a valid search warrant. The evidence obtained therefore would have been admitted had the authorised member remained in the vicinity of (although not necessarily shadowing) Garda Loughnane while he was searching the shed. On no account can it be suggested that any miscarriage of justice arose or that anything improper occurred.

25. Once the judge concluded that the search was illegal, it is contended that he should have then conducted a J.C. type enquiry to determine whether the evidence should have been admitted notwithstanding the inadvertence on the part of the authorised member and the manner by which the warrant was executed. The failure by the District Judge to do so therefore constituted a legal error.

26. Citing the decisions of the Supreme Court in People (DPP) v. Quirke (No. 2) [2023] 1 ILRM 445 at para. 56, and People (DPP) v. Behan [2022] IESC 23 at para. 73, counsel submits that the High Court is entitled to determine what the result of such a J.C. enquiry would have been, namely that there was honest inadvertence on the part of the authorised member.

27. Counsel submits that where there was no evidence that Garda Colleran was engaging in a deliberate and systemic effort to undermine the District Court search warrant by not remaining at the respondent’s premises for the duration of the search, and that at every turn she sought to uphold and vindicate the rights of the respondent, the evidence should have been admitted.

Submissions of the respondent

28. The respondent submits that Garda Colleran was the authorised officer named on the search warrant and that she entered the premises on foot of the warrant accompanied by other members of An Garda Síochána. The execution of a warrant is not limited to entry onto the property but extends to granting the authorised member the power to enter the premises, search the premises and persons found thereon, and inspect, seize and detain any evidence.

29. The respondent submits that the words “accompanied by” must be interpreted strictly to give effect to the legislature’s intention under s. 26 of the 1977 Act. Since the authorised member did not remain on the premises for the duration of the search, the members who initially accompanied her in the execution of the warrant were deemed to be trespassers on the premises, and any evidence obtained thereafter was deemed to be unlawful and in breach of the respondent’s constitutional rights. Therefore, says the respondent, the District Judge was entitled to dismiss the charge.

30. The respondent submits that the warrant expressly permits the authorised member to carry out the acts mentioned in the section, and it is only when, by virtue of her proximity, the authorised member is in a position to assert control or supervision over the other members present that the accompanying members have authority to assist her in carrying out the powers granted by the warrant.

31. The issues in the case must be viewed against the backdrop of the pre-existing jurisprudence on search warrants. It remains the position in Irish law that most of the statutory powers of entry, search and seizure are only exercisable on foot of a warrant. When the property in question is a private dwelling, obtaining a warrant or court order will usually be the standard prerequisite, save in exceptional circumstances, because these compulsory powers encroach on a citizen’s constitutional rights.

32. The courts have consistently recognised the special protection afforded to a person’s home under the Constitution. Relying upon decisions such as People (DPP) v. O’Brien [2012] IECCA 68, Simple Imports Limited v. Revenue Commissioners [2000] 2 IR 243 and Byrne v. Grey [1988] IR 31 (Hamilton P.), the respondent urges that the courts must ensure that the conditions imposed by the legislature before such powers of entry, search and seizure can be validly exercised, are strictly met.

33. Both the wording of the warrant in question, and of s. 26 itself, indicate that the legislature has always envisaged that the authorised member would be present for the duration of the warrant’s execution.

34. It is accepted by the appellant that the authorised member was not present throughout the execution of the search warrant; she initially entered the property with other members, but left the property to execute unrelated warrants nearby, returning to the property shortly thereafter. No evidence was given that the authorised member directed the other members to accompany her in any way in executing the powers granted to her via the search warrant. It is clear that she was not present on the property when Garda Loughnane found and seized the drugs.

35. In these circumstances, it cannot be said that Garda Loughnane could truly be said to have been “accompanied by” the authorised member at the time he located the suspected drugs. It follows, therefore, that Garda Loughnane was a trespasser on the property at the time the substance was located, thus rendering any evidence obtained by him unlawful and in breach of the respondent’s constitutional rights.

36. The District Judge was correct to distinguish this case from the situation in Boggans, and cogent reasons were given by the judge in his careful analysis of the issues.

Case law on statutory interpretation and warrants

37. Since the matter before the court primarily concerns an issue of statutory interpretation, it may be helpful to consider caselaw on how a court should approach the interpretive exercise, particularly in the context of a penal or criminal statute. It is by now well settled that in any question of statutory construction, the intention of the legislature is to be discerned from the legislation itself, set in its proper factual and legal context.

38. In Bookfinders Ltd v. The Revenue Commissioners [2020] IESC 60, O’Donnell J. (as he then was) noted that the purpose of statutory interpretation is to seek clarity from words which are sometimes necessarily, and sometimes avoidably, opaque, and ascertain their meaning. The general principles of statutory interpretation are tools used to achieve a clear understanding of a statutory provision.

39. O’Donnell J. referred with approval to the judgment of McKechnie J. in People (DPP) v. T.N. [2020] IESC 26 wherein McKechnie J. reviewed the principles of interpretation at paras. 113-119 of his judgment. At para. 119 McKechnie J. concluded: “Therefore, while the principle of strict construction of penal statutes must be borne in mind, its role in the overall interpretive exercise, whilst really important in certain given situations, cannot be seen or relied upon to override all other rules of interpretation. The principle does not mean that whenever two potentially plausible readings of a statute are available, the court must automatically adopt the interpretation which favours the accused; it does not mean that where the defendant can point to any conceivable uncertainty or doubt regarding the meaning of the section, he is entitled [to] a construction which benefits him. Rather, it means that where ambiguity should remain following the utilisation of the other approaches and principles of interpretation at the Court’s disposal, the accused will then be entitled to the benefit of that ambiguity. The task for the Court, however, remains the ascertainment of the intention of the legislature through, in the first instance, the application of the literal approach to statutory interpretation.”

40. O’Donnell J. stated at para. 56 of his judgment in Bookfinders: “I would merely add that the principle of strict construction is, like many other principles of statutory interpretation, a principle derived from the presumed intention of the legislature, which is not to be assumed to seek to impose a penalty other than by clear language. That approach should sit comfortably with other presumptions as to legislative behaviour, such as the presumption that legislation is presumed to have some object in view which it is sought to achieve. A literal approach should not descend into an obdurate resistance to the statutory object, disguised as adherence to grammatical precision.”

41. In People (DPP) v. A.C. [2022] 2 IR 49 the Supreme Court held that the “plain meaning approach” to statutory interpretation did not invite a court to isolate the critical words of a statute and consider if they had a plain or literal meaning in the abstract; the words still had to be approached in their context and having regard to the subject matter of the legislation and the objectives to be discerned. Moreover, courts should be slow to find the product of the legislative process to be absurd or to adopt a meaning contrary to what the court considered the plain meaning of the provision.

42. More recently in Heather Hill Management Company CLG v. An Bord Pleanála [2024]

2 IR 222, Murray J. in the Supreme Court carried out an extensive review of the case law on statutory interpretation and observed at para. 113 that modern authorities make clear that in no case can the process of ascertaining the “legislative intent” or the “will of the Oireachtas” be reduced to the reflexive rehearsal of the literal meaning of words, or the determination of the plain meaning of an individual section viewed in isolation from either the text of the statute as a whole or the context in which, and purpose for which, it was enacted.

43. In Heather Hill, the Supreme Court emphasised again that the words of the statute were the first port of call in its interpretation. While the court had to construe the words having regard to the context of the section of the Act in which those words appeared, the pre-existing relevant legal framework and the object of the legislation insofar as discernible, the onus was on those contending that a statutory provision did not have the effect suggested by the plain meaning of the words chosen by the legislature to establish that that was the case (see also A, B and C (A Minor Suing By His Next Friend, A) v. Minister for Foreign Affairs and Ors (Murray J.) [2023] IESC 10 to like effect).

44. These are the principles that I will endeavour to apply to the statutory interpretation question before the court. I will start with a consideration of the Act of 1977 itself.

45. One of the purposes of the 1977 Act is to prevent the misuse of certain dangerous or otherwise harmful drugs (see the long title to the Act). The Act provides for the creation of several criminal offences, including ss. 3, 15, 16, 17 and 18 which impose restrictions on the possession and dealing of controlled drugs and other substances.

46. Section 25 deals with garda powers of arrest. Section 26, as we have seen, deals with the issuance of search warrants. Section 27 deals with penalties. Section 28 deals with the power of a court to remand persons convicted of offences under the Act. Section 29 deals with offences generally, s. 30 deals with forfeiture, s. 31 deals with offences in relation to bodies corporate and s. 32 deals with poisons.

47. As this short consideration of the index to the Act demonstrates, the Act of 1977 is concerned with the regulation of controlled drugs and the creation of criminal offences and makes provision for the imposition of penal sanctions upon persons convicted of such offences. These statutory provisions undoubtedly engage a citizen’s legal and constitutional rights. It seems to me that this background context needs to be borne in mind when interpreting the words chosen by the Oireachtas under s. 26, particularly in circumstances where the section permits the search of a citizen’s dwelling which, under Article 40.5 of the Constitution, enjoys constitutional protection.

48. As noted by the Supreme Court in one of the leading cases on search warrants, Simple Imports Ltd.: “Search warrants… entitle police and other officers to enter the dwellinghouse or other property of a citizen, carry out searches and… remove material which they find on the premises and, in the course of so doing, use such force as is necessary to gain admission and carry out the search and seizure authorised by the warrant. These are powers which the police and other authorities must enjoy in defined circumstances for the protection of society, but since they authorise the forcible invasion of a person's property, the courts must always be concerned to ensure that the conditions imposed by the legislature before such powers can be validly exercised are strictly met.” (emphasis added)

49. Taking our lead from the underlined words above, it is necessary to consider the text of s. 26 itself to ascertain the “conditions imposed by the legislature before such powers can be validly exercised”. This requires viewing the section in its proper context in accordance with the approach mandated in Heather Hill.

50. The section under discussion in the present case is s. 26 (2) of the 1977 Act. However, s. 26 (2) should be read in light of s. 26 (1). Stripping out words that are not material, s. 26 (1) provides that if a judge is satisfied by information on oath of a member of An Garda Síochána that there is a reasonable ground for suspecting that a person is in possession on any premises of a controlled drug, such judge may issue a search warrant mentioned in subsection 2.

51. Section 26 (2) provides in material part that a search warrant issued under this section shall be expressed and operate to authorise a named member of An Garda Síochána, accompanied by such other members of the Garda Síochána and such other persons as may be necessary, to enter the premises or other land named in the warrant and to search such premises and any persons found thereon.

52. Section 26 (3) confers additional specific powers on the authorised member who may do either or both of the following:

(a) arrest without warrant any person or persons found on such premises or other land for the purpose of searching him or them,

(b) so arrest any such person or persons and keep him or them, as may be appropriate, under arrest until such time as such of the powers of search or examination as he wishes to exercise pursuant to the warrant have been exercised by him.

53. The authorisation conferred by section 26 (2) appears in the first instance to be conferred upon the authorised member, rather than upon An Garda Síochána generally. Nonetheless, it seems inconceivable that the Oireachtas would have intended that only the authorised member would be empowered to carry out a search pursuant to the warrant. The wording of the statute tells us that it was clearly envisaged by the framers of the section that the authorised member could be accompanied by other members of the gardaí, and indeed possibly by civilians, when effecting a search pursuant to s. 26.

54. Quite rightly, no submission has been made by the respondent in the present case that only the garda named on the warrant may carry out the search. The wording of the section precludes any such submission. The respondent’s submission here is more realistic and is to the effect that, in order for Garda Loughnane to be empowered under the warrant to enter and search the property, and seize the substance that he found, he had to be “accompanied by” the authorised member who is named on the warrant at the time of exercising those powers. On the basis of the evidential findings made by the District Judge, the respondent submits that it cannot be said that Garda Loughnane was accompanied by the authorised member at the time of finding and seizing the cocaine.

55. Having considered the findings of fact set out in the Case Stated, I find myself in agreement with the respondent’s submission that, in the particular circumstances of the case, the authority of the search warrant was exceeded when a garda member, who was not in any sense accompanied by the authorised member, carried out acts purportedly on the authorisation of the warrant. I will now set out my reasons for coming to this conclusion.

Temporal question

56. The Oireachtas has been careful to spell out in s. 26 (2) that a warrant issued pursuant to s. 26 shall operate to authorise the named member, accompanied by such other members as may be necessary, to enter the premises, search such premises, examine any substance, article or other thing found thereon or therein and, if there is a reasonable ground for suspecting that an offence is being or has been committed under the Act in relation to a substance, article or other thing found on such premises, seize and detain the substance, article, document or other thing.

57. One matter of contention between the parties is the temporal question as to whether the requirement for the other Garda members to be “accompanied by” the authorised member applies only to the act of entering the dwelling (as the appellant contends) or applies also to the other acts permitted under the warrant (as the respondent contends), such as the power to enter and search the premises and persons found thereon and to inspect, seize and detain any evidence.

58. I have considered this temporal issue carefully. In support of the appellant’s position, it might be suggested that the Oireachtas intended that the “accompanied by” requirement should apply only at the point of entry to the property, because after all the main purpose of requiring An Garda Síochána to apply for a search warrant – the protection of the dwelling and the requirement that only those permitted by lawful warrant may enter a person’s premises – has already been achieved. It might be said that since a judge has exercised a lawful jurisdiction to grant a search warrant for the premises named in the warrant, this should suffice to empower other garda members not named in the warrant, who accompany the authorised member at the time of entry, to carry out the other investigative acts mentioned in the section, regardless of whether the authorised member remains in the property.

59. While at first glance that may appear to be a logical and sensible approach, in my view it is not an interpretation supported by the actual text of the section. It remains the law that the first port of call when interpreting a section of an Act is the words of the section as chosen by the Oireachtas. The sequencing and language chosen in s. 26 (2) indicates to me a legislative intention that all of the acts authorised under the section (not only the act of entering the premises) should be governed by the “accompanied by” requirement. The decision by the Oireachtas to locate the phrase “accompanied by” at the beginning of the subsection, before listing the various acts authorised by the section; the usage of one continuous sentence rather than a collection of sentences; and the usage of commas and the absence of full stops or other punctuation to separate the listed acts from the “accompanied by” requirement are all features that in my view support the conclusion that the Oireachtas intended that other garda members must be accompanied by the authorised member when carrying out the other acts permitted under the section.

60. Secondly, the structure of the section indicates a legislative intention that the powers conferred by the warrant should be channelled through the authorised member, without whom the derivative powers of the other garda members would not be engaged. In my view, the wording indicates that it was intended by the Oireachtas that such powers of the other garda members should flow from their accompaniment of the authorised member. Borrowing the language of Simple Imports, these are the conditions imposed by the legislature to ensure such powers are validly exercised.

61. Thirdly, the fact the section requires the warrant to be in a particular form and spells out what the warrant should say (“shall be expressed and operate to authorise a named member”) supports at a level of principle the respondent’s general point that the Oireachtas intended that the provision would be strictly construed.

62. Fourthly, it is worth bearing in mind that the Oireachtas could simply have empowered garda members generally to participate in the search of a premises, once the safeguard of applying to a judge for a warrant had been met. That way, the all-important objective of judicial supervision would have been achieved. However, that is not the approach the Oireachtas went for. Rather, the wording chosen indicates that the Oireachtas opted for a structure of conferring various powers on a named authorised member, and upon such other members as may be necessary, provided those other members were accompanied by the authorised member. In my view, the fact that this important policy choice was made by the Oireachtas must be respected.

63. Fifthly, it should be borne in mind that the section also permits non-garda members (“and such other persons”) to enter and search premises and carry out the various acts permitted under the section. The fact that such other persons would be given these powers may help to explain why the Oireachtas was concerned to impose conditions on the exercise of the powers concerned, and also why a supervisory role for the authorised member may have been intended.

64. In my view, the structure chosen by the Oireachtas, whereby there is a conferring of powers on the authorised member, coupled with the usage of the phrase “accompanied by” at the beginning of the section, indicates a parliamentary intention that the authorised member should, in a general sense, exercise a supervisory role over the search process. This view is further supported by the express wording of s. 26 (3) which authorises the authorised member to both “arrest without warrant any person…found on such premises… for the purpose of searching him” and “arrest any such person… and keep him …under arrest until such time as such of the powers of search or examination as he wishes to exercise pursuant to the warrant have been exercised by him.” (emphasis added)

The underlined wording supports the idea that it was intended by the Oireachtas that the authorised member would operate and maintain a supervisory role in relation to the conduct of the search.

65. Overall, it seems to me that these features of the text support the conclusion that the Oireachtas intended that any garda members not named on the warrant would be empowered to carry out the powers granted by the warrant only by dint of such members accompanying the authorised member at the time the powers are being exercised.

66. The soundness of this conclusion can be assessed by considering a different factual scenario involving more clear-cut facts. Suppose the authorised member had at no stage entered the premises or participated in the search and instead remained at home or perhaps even left the country, without communicating in any way with his colleagues. Could it realistically be suggested that the other garda members, unaccompanied by the authorised member in any way, would nonetheless have authority under the warrant to search the premises and do the various acts permitted under the section? It seems to me that such an interpretation would offend the principles outlined in Simple Imports and Byrne v. Grey, namely that the courts must always ensure that the conditions imposed by the legislature before such powers can be validly exercised, are strictly met.

67. It is fair to say the factual position that actually presented in this case was more nuanced than the far-fetched example I have just mentioned. In the present case, the other garda members were accompanied by the authorised member at the beginning of the search until the authorised member left the premises to search another property. At the time the cocaine was found at 5 St. Cormac’s Park by Garda Loughnane, the authorised member was physically offsite. As found by the District Judge at para. 26 of the Case Stated, there was no evidence of any communication between Garda Colleran and Garda Loughnane from the time they both entered 5 St. Cormac's Park until Garda Colleran returned from the other premises. Nor was there any evidence that Garda Colleran was in any manner managing or directing operations, or had any further involvement in the search subsequent to her leaving. The Case Stated also records the judge’s finding that no valid reason was proffered as to why the other searches were conducted simultaneously, or why Garda Loughnane was not accompanied by Garda Colleran.

68. In these circumstances, it seems to me that the question for the High Court to consider is whether it was reasonably open to the District Judge, on the basis of the facts as found, to find that Garda Loughnane was not being “accompanied by” the authorised member when he found, seized and detained the cocaine. For the reasons I have endeavoured to explain, I believe that this conclusion was indeed open to the District Judge on the facts as found.

69. I reject the appellant’s submission that the judge’s interpretation of the phrase was unrealistic or overly restrictive. The phrase “accompanied by” should be given its plain meaning, and I am not satisfied that the DPP’s argument sufficiently accommodates any such meaning. The District Judge was careful not to adopt an overly rigid definition to the phrase that might cut across or compromise the operational requirements of An Garda Síochána. He expressly noted at para. 15 of the Case Stated that it was not necessary for the authorised member at all times to be in the company of, or standing beside, another garda while carrying out a search. As the District Judge explained, the warrant holder “cannot be everywhere at once”.

70. This is important because, if we take the simple example of a warrant holder in a house carrying out a search of an upstairs bedroom and another garda member involved in the same search locating and seizing suspected drugs in a separate room downstairs, it seems to me that, in accordance with the District Judge’s analysis here, these facts would allow the other garda participating in the search to seize and detain the item in question. It cannot have been intended by the Oireachtas that searches of rooms, other than the room in which the warrant holder happens to be based, would be outside the remit of the warrant.

71. The District Judge was careful to indicate in his reasoning (para. 25 and elsewhere) that in ordinary language, being “accompanied by” someone means that a person “goes along with” another person. In the view of the District Judge, this does not necessarily involve being in the physical presence of another person and can extend to situations where garda members are in visual or auditory communication during the same search.

72. The parties are agreed that the Act itself does not define what is meant by the words “accompanied by” in s. 26. The Oxford English Dictionary gives two relevant meanings for the verb “to accompany”: 1) to go somewhere with someone; 2) to be present or occur at the same time. Broadly speaking, these meanings accord with the meaning identified by the District Judge. In my view, the effect of the words “accompanied by” in the section is that, in order for the powers under the section to be available to other garda members, they must “accompany”, join or go somewhere with the authorised member while the powers in question are being exercised. I regard this as the plain meaning of the words under discussion.

73. Neither party in the hearing before me took issue with the District Judge’s broad interpretation of the phrase as not being confined to physical or immediate presence. In the view of the District Judge, an authorised member can “accompany” other garda members either by physical presence or by maintaining supervision of the search by visual communication or other means. In the view of the District Judge, this reflected the decision of the Court of Appeal in Boggans where it was found, on the facts of that case, that an authorised member and an accompanying garda did not have to be physically beside each other in order for each member to be said to be “accompanying” the other.

74. In Boggans, in circumstances of particular operational urgency, the surveillance team who arrested the accused entered the property a number of minutes before the authorised member. Mr. Boggans contended that his arrest was unlawful because the garda named in the warrant, the person who was so authorised to act, was not present for the execution of the warrant. Sheehan J. for the Court of Appeal addressed the defence submission as follows: “29. The appellant's contention that his arrest was unlawful arises in circumstances where he maintains that his detention for a short while prior to his arrest was unlawful because Detective Garda Carroll, to whom the search warrant was addressed, was not present at the time when this occurred. He says that as a result of this, his arrest is tainted and was unlawful.

30. In the course of his written submissions on this matter the appellant states: “The primary submission of law is that the garda named in the warrant should be present for the execution of the warrant as it is he who is purportedly authorised to act, albeit accompanied by such other persons as he deems appropriate.”

31. The appellant goes on to further submit that it is inconceivable that the named member can be rendered redundant and need not even attend at the commencement of the search.

32. The evidence before the court was that Detective Garda Farrell arrested the appellant at 9.05 pm at the Celtic Truck Wash and Parking premises, having stopped him shortly before this for the purpose of a search authorised by the warrant. However, before he commenced to search the appellant he was informed that a large quantity of drugs had been found and on receipt of this information he arrested the appellant under the Misuse of Drugs Act.

33. Detective Garda Farrell had entered the premises on foot of a warrant that had been issued to Detective Garda Carroll at 9.00 pm. Detective Garda Carroll's unchallenged evidence was that once the warrant was issued by Superintendent O'Leary, this fact was communicated to other members of the surveillance and search teams by radio and that he then went immediately to the premises. In direct evidence he said that he was two to three minutes away from the premises when he received the warrant, but conceded under cross-examination that it could have taken him five minutes to get to the scene. Other evidence from the prosecution witness who provided the jury with location maps suggested that Detective Garda O'Leary was between 2.25 and 3kms from the Celtic Truck Wash and Parking when the warrant issued.

34. The respondent submitted in reply to the appellant's claims that the authority to enter the premises accompanied by other members is not exceeded in circumstances where, for good reasons, other members of the garda team entered in advance of the member named on the warrant.

35. While the appellant may have established a doubt as to whether or not Detective Garda Carroll was present at the premises when he was first stopped, this is of no avail to him. There was a warrant in existence at the time authorising that he be searched.

36. In the particular circumstances of this case, this Court holds that the authority of the search warrant was not exceeded when, for very good reasons other members of the search and surveillance team entered minutes before Detective Garda Carroll's arrival. To hold otherwise would be entirely disproportionate. In these circumstances the detention of the appellant for the purpose of a search on foot of the warrant was lawful, the subsequent arrest was lawful and untainted in any way as the appellant suggests and was a lawful arrest.”

75. In my view, the District Judge was correct to distinguish Boggans for a number of reasons.

76. Firstly, as noted by the District Judge, there was no evidence in the present case that there was any communication between the authorised member and the other garda members from the time when they entered the premises until the time the authorised member returned from searching the other property. Nor was there any evidence of the authorised member directing search operations or staying involved in the search in any way.

77. Secondly, a crucial difference with Boggans was the lack of compelling urgency or operational necessity justifying the authorised member’s absence from the locus. As found by the District Judge, no attempt was made by the appellant to demonstrate how it was not practicable for the other garda members to be accompanied by the authorised member at the time the suspected drugs were found.

78. Thirdly, Boggans concerned a commercial premises, not a premises that potentially engaged the constitutional right to the inviolability of the dwelling.

79. Fourthly, the main point of challenge to the warrant in Boggans was a ‘Damache’ point (Damache v. DPP [2012] 2 IR 266). The appellant in Boggans challenged the validity of that warrant on the grounds that the superintendent who issued the warrant was not an independent party as he was involved in the investigation into the offence, and that the circumstances of urgency which must exist to allow a Superintendent to issue a search warrant did not exist.

80. Fifthly, the appellant in Boggans argued that the “accompanied by” point was confined to a challenge to the validity of the arrest, not the warrant, and was underpinned by a very different set of facts.

81. One other aspect of Boggans bears consideration. That decision was delivered on 9th March 2015 and therefore pre-dated J.C. which was delivered by the Supreme Court on 15th April of the same year. Thus, the ‘absolute exclusionary rule’ as per People (DPP) v. Kenny remained the governing law. However, it is now beyond doubt that the rule in Kenny no longer represents the law. The fact that the absolute exclusionary rule applied at the time Boggans was delivered may have influenced the test to be applied. I make that observation in light of para.

36 of Boggans, where Sheehan J. concluded that to hold that the authority of the search warrant was exceeded when, for very good reasons, other members of the search and surveillance team entered the property minutes before the warrant holder’s arrival “would be entirely disproportionate”. That understandable finding, and the language used by the court, suggests that the issue was approached as an admissibility issue, rather than as an issue of pure statutory interpretation.

82. In any event, for the reasons indicated above, Boggans involved a very different set of facts and was in my view correctly distinguished by the District Judge in the present case.

83. Strictly speaking, since neither party in the hearing before me invited the court to query the District Judge’s broad interpretation of “accompanied by” as extending beyond physical proximity to include participating in a search by visual communication or other means, it seems to me that I should refrain from determining that discrete issue and I will therefore leave over that question for resolution in a suitable case where it arises.

84. I will, however, address a wider point made by the appellant concerning the operational difficulties that may arise if the court applies, what the appellant regards, as an overly prescriptive definition of the phrase. In the view of the court, the mere fact that the plain meaning of a section may give rise to practical difficulties or undesirable consequences is not a basis for failing to give effect to the wording chosen by the Oireachtas, unless it is demonstrated that the plain meaning is absurd or fails to reflect the clear legislative intent of the Act. Supreme Court caselaw such as Mahon v. Butler [1997] 3 IR 369 and Kadri v. Governor of Wheatfield Prison [2012] IESC 27 indicate that precise measures which might be put in place to deal with such undesirable consequences are not always a given (see also Veterinary Council v. Ciobanu [2025] IEHC 350 at paras. 76 – 77). The solution to such undesirable consequences lies with the legislature, not the courts. In accordance with the separation of powers, the role of the court is to interpret and apply legislation, not to rewrite it.

85. In any event, the law already recognises in a general sense that the operational needs of An Garda Síochána in a given case may give rise to a necessity for forced entry if, on assessment, that can be objectively justified. As in all cases, context will be critical. As observed by McKechnie J. in People (DPP) v. Byrne [2011] IECCA 105 (Unreported, Court of Criminal Appeal 13th December 2011) at para. 33: “Context is an important determinative in this regard, bearing in mind that the same may be part of an active and ongoing operation being mounted by the gardaí. Take for instance a situation where armed criminals are hiding in a dwelling house owned by one of them. Could [People (DPP) v. Laide [2005] IECCA 24] possibly be relied upon to suggest that the door should first be knocked at or the doorbell rung? We think not. Surprise may be the essence of the operation. We therefore cannot accept any suggestion, that operational needs as a matter of principle could not also give rise to a necessity for forced entry, if on assessment, that can be objectively justified.”

86. The above passage was cited with approval by the Supreme Court in Reid v. Commissioner of An Garda Síochána and others [2019] IESC 21 at para 18. Reid concerned a civil action for damages in a case of mistaken identity where the gardaí had arrested the plaintiff on foot of an arrest warrant which incorrectly referenced the plaintiff’s name. In an important passage dealing with the test to be applied by a judge or jury when assessing the reasonableness of garda conduct, O’Donnell J. stated the following: “There is no doubt that the law precludes the use of unreasonable force in effecting entry or making an arrest and detaining a person. However, assessing the reasonableness of the conduct of the Gardaí in any particular case cannot involve a minute measuring and weighing, in the comfort of a courtroom, quite some time after the event, of what happened with the benefit of hindsight and when all the relevant facts are known. The test must be addressed from the perspective of the Garda or Gardaí executing the warrant or effecting the arrest in the circumstances which applied as they knew or believed them to be at the time. The test of reasonableness means that a trier of fact, whether a judge or jury, should be slow to second-guess the operational conduct of Gardaí carried out in real time, and in sometimes rapidly changing circumstances, which may be confused, unpleasant, and sometimes dangerous.” (emphasis added)

87. Returning to the first question posed in the Case Stated, I conclude that the question should be answered “yes”: the District Judge was correct to rule that, when the search was being conducted at the time the cocaine was found, and when it was seized and detained by Garda Loughnane, he was not at that time “accompanying” Garda Colleran, the authorised member, within the meaning of s. 26 of the 1977 Act.

88. In making that finding, I should make clear that this does not mean that in all cases, irrespective of conditions of urgency or operational necessity, a temporary separation between an authorised member and other garda members will result in the latter losing the benefit of a s. 26 search warrant. That discrete issue did not arise in the District Court, does not feature in the Case Stated and therefore does not fall for determination by me in this case.

Consequences of the finding of unlawfulness

89. The next broad issue to be considered is the consequences of the finding of unlawfulness, and the implications (if any) of such unlawfulness on the admissibility of the evidence and the validity of the District Judge’s decision to acquit the respondent.

Obligation to engage with the evidence

90. The appellant submits that, even if the District Judge was correct in concluding that Garda Loughnane was not accompanied by the authorised member when finding and seizing the suspected drugs, that was not the end of the matter, because the trial judge was required to engage with the evidence and determine whether it should have been admitted notwithstanding the finding of unlawfulness. The appellant submits that the judge should have considered the meaning of the words spoken by the respondent following the seizure of the suspected cocaine and then assessed whether they were consistent with an acknowledgement by him that he possessed the substance. The appellant submits that the judge erred by concluding that a finding that the search was unlawful automatically meant that the charge should be dismissed.

91. The appellant relies upon the above referenced case of J.C., wherein the Supreme Court restated the absolute exclusionary rule which had previously been laid down in Kenny.

92. The respondent makes a number of points in response. Firstly, at no point during the course of the hearing in the District Court was the judge asked directly or indirectly to engage in such an exercise by the prosecution. In point of fact, the prosecution was completely silent on this aspect. To suggest that the obligation falls directly on the District Judge to engage in such an exercise without the issue being raised by the prosecution is unfair to the judge and not in accordance with relevant jurisprudence.

93. The respondent relies on the reformulated test as set out by Clarke J. at para. 871 of the Irish report in J.C.: “(i) the onus rests on the prosecution to establish the admissibility of all evidence. The test which follows is concerned with objections to the admissibility of evidence where the objection relates solely to the circumstances in which the evidence was gathered and does not concern the integrity or probative value of the evidence concerned;

(ii) where objection is taken to the admissibility of evidence on the grounds that it was taken in circumstances of unconstitutionality, the onus remains on the prosecution to establish either:-

(a) that the evidence was not gathered in circumstances of unconstitutionality;

or

(b) that, if it was, it remains appropriate for the court to nonetheless admit the evidence.

The onus in seeking to justify the admission of evidence taken in unconstitutional circumstances places on the prosecution an obligation to explain the basis on which it is said that the evidence should, nonetheless, be admitted AND ALSO to establish any facts necessary to justify such a basis;

(iii) any facts relied on by the prosecution to establish any of the matters referred to at

(ii) must be established beyond reasonable doubt;

(iv) Where evidence is taken in deliberate and conscious violation of constitutional rights then the evidence should be excluded save in those exceptional circumstances considered in the existing jurisprudence. In this context deliberate and conscious refers to knowledge of the unconstitutionality of the taking of the relevant evidence rather than applying to the acts concerned. The assessment as to whether evidence was taken in deliberate and conscious violation of constitutional rights requires an analysis of the conduct or state of mind not only of the individual who actually gathered the evidence concerned but also any other senior official or officials within the investigating or enforcement authority concerned who is involved either in that decision or in decisions of that type generally or in putting in place policies concerning evidence gathering of the type concerned;

(v) where evidence is taken in circumstances of unconstitutionality but where the prosecution establishes that same was not conscious and deliberate in the sense previously appearing, then a presumption against the admission of the relevant evidence arises. Such evidence should be admitted where the prosecution establishes that the evidence was obtained in circumstances where any breach of rights was due to inadvertence or derives from subsequent legal developments;

(vi) evidence which is obtained or gathered in circumstances where same could not have been constitutionally obtained or gathered should not be admitted even if those involved in the relevant evidence gathering were unaware due to inadvertence of the absence of authority.”

94. Emphasising the repeated reference to the onus being on the prosecution to establish that it remains appropriate for the court to admit the evidence in the circumstances, the respondent submits that that onus was not discharged in the present case. It follows, says the respondent, that the District Judge was correct to dismiss the charge.

Discussion of the J.C. issue

95. Since this is an appeal by Case Stated in which the High Court has been invited to address a number of discrete issues of law, it seems to be appropriate that the court should provide such guidance as it can and also address as fully as is appropriate the five questions asked in the Case Stated. In question (d), the court has been asked to determine the effect that the finding that the search was unlawful had on the admissibility of the evidence and in question (e), asked to determine whether the judge was correct in law to acquit the respondent of the offence.

96. In my view, the appellant is undoubtedly correct in contending that the finding by the District Court that the search was unlawful should not have brought the proceedings to an end. Having determined that the search was unlawful, the court should have gone on to consider the separate question as to whether the evidence should nonetheless have been admitted having regard to the circumstances in which the unlawfulness arose. Ordinarily, this requires a trial judge to carry out a J.C. type assessment. In J.C., the Supreme Court held that while evidence obtained in a deliberate and conscious breach of constitutional rights must be excluded save in extraordinary excusing circumstances, that aspect was only one component part of the applicable rules governing admissibility. Ordinarily, a court must consider whether such evidence can nonetheless be admitted and whether the breach can be excused, such as where the breach has occurred due to inadvertence or, though not applicable here, can be excused as a consequence of a subsequent legal development.

97. This conclusion is supported by the Supreme Court’s later decision in Quirke (No.2), where the Supreme Court summarised the post J.C. position in terms of assessing whether the evidence should be deemed admissible in such circumstances.

98. While the entirety of the judgment in Quirke bears careful reading, for reasons of brevity, I propose to summarise the main findings in Quirke that are relevant to the present case as follows:

(i) It is beyond doubt that the Supreme Court’s decision in J.C. reversed People (DPP) v. Kenny. The earlier decision can no longer be regarded as having any binding effect as an authority.

(ii) Where evidence is obtained in breach of constitutional rights, even where the breach is not “deliberate” or “conscious” in the manner espoused in People (AG) v. O’Brien [1965] IR 142, there is a presumption that such evidence must be excluded.

(iii) Such evidence can only be admitted where the breach can be excused, such as where the breach has: (1) been occasioned in consequence of subsequent legal developments, or (2) occurred due to inadvertence.

(iv) Garda officers and/or other persons conducting searches or obtaining evidence cannot be expected to anticipate the future decisions of the courts. Law enforcement officials are entitled to take the law as it stands at the time of their actions. Factual errors and understandable human errors fall under the second mentioned class of cases, namely those in which evidence obtained in breach of rights may be admitted if the breach is attributable to inadvertence.

(v) Even where evidence is obtained illegally, without there being a breach of constitutional rights, there is an obligation on the court to consider whether it is necessary to exclude that evidence where to admit it would otherwise render the trial unfair.

(vi) Any rule of exclusion should operate to exclude evidence that is obtained in reckless or grossly negligent disregard of the Constitution. The law does not support a system where inadvertence is deliberately chosen, such as by: seeking out an officer in the execution of a warrant or an arrest, or the extension of detention, who knows nothing of the investigation; acting in flagrant disregard of legal rules; or acting in advertent blindness to what is required.

(vii) In considering any question of inadvertence, or of a deliberate and conscious breach of a constitutional right, the court has to consider the state of mind not only of individuals, as it were, at the coalface, but also of any other senior officials within the relevant enforcement or investigation authority who were involved in a material way in the process.

(viii) The test in J.C. necessarily considers any systemic failures that occur within an investigating team, not just the absence of any deliberate and conscious breach on the part of the executing officer.

(ix) The test under which evidence obtained in breach of constitutional rights may be admitted does not permit that evidence to be admitted if it could never have been lawfully obtained in the first instance.

99. On the facts as found in Quirke, the Supreme Court held that the admission by the trial judge of the evidence as to what was on computers seized from the accused’s home should be admitted, since the illegality attaching to it arose due to a new legal development related to digital-space privacy. The court held that no dishonesty arose and the mistake in the application for the warrant and the resulting search warrant was due to honest inadvertence.

100. Thus, Quirke indicates that where inadvertence occurs in the context of an honest mistake, the trial court will have a discretion to admit the evidence, notwithstanding a finding that the evidence was obtained unlawfully.

101. In the present case, the appellant emphasises that the house was searched on foot of a search warrant which had been validly issued. Moreover, the evidence would have been admitted in the event that the authorised member had remained in the vicinity. The appellant says that nothing egregious, improper or untoward occurred in the execution of the warrant, and that no miscarriage of justice resulted.

102. I agree with the appellant’s submission that, once the District Judge found the search to be unlawful, a J.C. type enquiry should have been carried out to determine whether the evidence should nonetheless have been admitted having regard to the authorised member’s inadvertence. In my view, the court erred in concluding that the unlawfulness of the search necessarily meant that the charge should automatically be dismissed - the second phase of the exercise was overlooked.

103. However, it bears emphasis, in fairness to the District Judge, that at no stage was the court invited to carry out this second part of the exercise or carry out a J.C. type enquiry of considering the circumstances in which the illegality had arisen.

Can an issue not raised at trial be raised in a Case Stated in the High Court?

104. The respondent objects to the DPP now seeking to raise the JC issue in circumstances where it wasn’t raised at trial. This necessitates the court considering whether an issue not raised at trial can for the first time be argued in an appeal by Case Stated in the High Court.

There is helpful commentary on this issue in Delaney and McGrath on Civil Procedure (5th Ed., 2023) at paras. 32.52 to 32.53 where the authors state the following: “32.52 Additional considerations arise where it is sought to raise issues on appeal which have not previously been considered. This point was considered by the Supreme Court in Westlink Toll Bridge Ltd v Commissioner of Valuation [2013] IESC 42 where MacMenamin J. made it clear that where an issue had not been addressed in the case stated, and “[t]here had been no ‘determination’ on the issue in the case stated… [the Supreme C]ourt had no jurisdiction to entertain the point on appeal.”

32.53 This question was also considered by Kennedy J. in her judgment in the Court of Appeal in Director of Public Prosecutions v O'Brien [2021] IECA 290, where she stated that while the decision in Attorney General (Fahy) v Bruen (No. 2) might suggest that there is scope for the court to consider issues of law that were not brought up before the District Court, it should be noted that was decided before the judgment of O’Donnell J in the Supreme Court in Lough Swilly Shellfish Growers v Bradley [2013]

1 IR 227. It had been made clear in that case that the Court of Appeal will not generally entertain a legal issue not addressed by the High Court, although both the Court of Appeal and Supreme Court retain a discretion to allow a point not argued at trial to be considered on appeal. Kennedy J stated that it was, therefore, necessary to determine whether the nature of an appeal by way of case stated influence the principles governing the consideration of a new point on appeal. She acknowledged that the fact that the particular point which it was sought to litigate had not been raised before the District Court and had not formed part of the case stated would not have prevented the High Court from considering it. However, she said that she did not consider that the nature of an appeal by way of case stated was really the central issue in determining whether the appellant ought to be allowed to advance an issue not raised earlier in the proceedings. In her view the principles to be applied were those relevant to determining whether a new point ought to be permitted to be litigated on appeal and she said that she was, therefore, guided by the principles set out in Lough Swilly. Kennedy J concluded that she was satisfied that the point which it was sought to raise lay at the far end of the spectrum identified by O'Donnell J in Lough Swilly and that it could not be litigated on appeal.”

105. Lough Swilly concerned the constitutional limitations on a final appellate court entertaining an argument not advanced at first instance before the trial court. Following Kennedy J.’s lead in DPP v. O’Brien (above), I accept that dealing with this matter in a Case Stated, rather than by way of appeal, is not the central issue. The principles to be applied here are the same as those applicable to the question of whether a new point can be litigated on appeal. It seems to me that, applying the Lough Swilly approach, the following factors are relevant to the exercise of the court’s discretion:

(i) While obviously not determinative, it is relevant that this is a criminal proceeding, not a civil proceeding.

(ii) All things being equal, the person best placed to carry out a J.C. type assessment is the trial judge who hears the evidence viva voce and observes the witnesses.

(iii) The Supreme Court emphasised in J.C. that, for the purpose of the second leg of the exercise, the onus in seeking to justify the admission of unconstitutionally obtained evidence places on the prosecution an obligation to explain the basis upon which the evidence should be admitted and establish any facts necessary to justify such a basis. That onus was not discharged here in circumstances where no application was made to the District Judge to admit the evidence notwithstanding the finding of unlawfulness, and no real explanation for this omission has been provided.

(iv) I take into account the point that, in the District Court, the DPP did not have the benefit of professional legal representation. However, the court must apply the law in the context of the surrounding circumstances of the case. Those circumstances include the fact that the judge had already reopened the prosecution case and given the prosecution a further opportunity to call evidence.

(v) It is also relevant that no application was made, even on a later date (perhaps with the benefit of legal representation), to carry out a J.C. type enquiry or to make submissions on the limited consequences that should follow a finding that a search was unlawful.

(vi) Nor can it be excluded that further evidence may have been necessary for a court to carry out a J.C. type assessment e.g. some evidence as to the policy of garda authorities concerning simultaneous searches. While such evidence may or may not have been required, the important point is that since the issue was never argued before the trial court, the District Court was not given an opportunity to consider whether evidence from more senior garda officials was needed. In my view, this is a further factor tending against allowing it to be raised for the first time on appeal.

(vii) The role of the High Court in a Case Stated does not involve making findings of fact. In my view, this tends against the desirability of the court embarking on a J.C. enquiry at this remove.

106. Other relevant features of the present case include: the nature and context of the charge before the court - a summary prosecution for an offence contrary to s. 3 of the 1977 Act; the fact that the alleged offence occurred in October 2022; and the fact that the trial resulting in the respondent’s acquittal occurred in October 2023. Whilst these latter points may be said to carry only limited weight, they are in my view relevant in the overall mix and further tip the scales against allowing the new ground to be advanced for the first time at this remove.

107. Weighing up the totality of the circumstances, it seems to me that I should exercise my discretion against allowing the point to be raised at this late stage. It has not been sufficiently explained why the points now sought to be advanced on appeal were not raised before the trial judge. The dominant factors justifying this conclusion relate to the onus point as per J.C. and the prosecution’s omission to seek the admission of the evidence at any stage, notwithstanding the finding that the search was unlawful.

108. For similar reasons, I do not think it would be appropriate for the High Court, at this remove, to pronounce on the question of whether the constitutional right to the inviolability of the dwelling was engaged at all, in circumstances where the suspected drugs were found in a shed apparently separate to the main house. The appellant invites the High Court now, not having raised the issue at first instance, to conclude that the evidence should be regarded merely as illegally obtained, rather than unconstitutionally obtained, thereby triggering the test in People (AG) v. O’Brien. Since this point too was not advanced at the hearing and was therefore not considered by the District Judge, I do not think it would be appropriate to rule on it now. The Case Stated itself did not focus to any great extent on the factual matters that would need to be explored in any such enquiry. It is therefore undesirable that the issue would be raised in the High Court for the first time, essentially in a vacuum.

Conclusion

109. In the circumstances, notwithstanding my view that a J.C. type analysis should have been carried out in the District Court, I propose not to disturb the learned District Judge’s

decision to acquit the respondent.

110. The questions posed in the Case Stated should accordingly be answered as follows:

(a) Was I correct to rule that when the search was being conducted at the time the cocaine was found and when the cocaine was seized and detained by Garda Loughnane that he was not at that time “accompanying” Garda Colleran? Answer: Yes.

(b) If I was correct, was I correct to rule that there was no “good reason” why Garda Loughnane was not at the time the drugs were found, seized and detained “accompanying” Garda Colleran? Answer: Yes - this was essentially a matter for the District Judge to assess upon hearing the evidence, and the court sees no reason to interfere with the District Court’s decision.

(c) If I was correct on the two foregoing questions, was I correct to rule that the search, at the time the cocaine was found, seized and detained by Garda Loughnane was illegal? Answer: Yes.

(d) What effect does this have on the admissibility of the evidence? Answer: It will be a matter for the trial judge in each case to consider:

(a) the nature of the breach of constitutional rights concerned and how it occurred;

and

(b) what consequences flow from a J.C. type analysis as a result of the breach and the finding of unlawfulness. A trial judge will have the guidance of the test as summarised by Clarke J. at para.

871 of the judgment in J.C. (reproduced above at para. 93) and will also have the benefit of later jurisprudence from the Supreme Court on the issue, including Quirke (No.2) at para. 56 of the Irish report (summarised above at para. 98).

(e) Was I correct in law to acquit the respondent of the offence? Answer: No - not for the reasons indicated in the Case Stated. The mere finding that the search was unlawful did not mean that the charge should have been automatically dismissed. The trial judge should have carried out an analysis of the legal consequences that flow from a finding of unlawfulness. The unlawfulness arose in what appeared prima facie to be circumstances of inadvertence, rather than deliberate wrongdoing or impropriety. The garda member’s error stemmed from a desire to commence the search of another property. Ordinarily, a trial judge should carry out a J.C. type assessment to ascertain whether, notwithstanding any finding that the evidence was obtained unlawfully, the evidence should nonetheless be admitted. The guidance of the Supreme Court in Quirke (No. 2) will also be of assistance to trial judges in that regard.

111. For the reasons indicated, I propose to disallow the appeal. Accordingly, the decision to acquit the respondent will stand.

Signed:

Micheál O’Higgins

Appearances: James Dwyer SC and David Staunton BL instructed by the Chief Prosecution Solicitor for the appellant. Conor Devally SC and Suzanne Dooner BL instructed by Brophy and Martin Solicitors, Offaly for the respondent.