Supreme Court quashed District Court search warrants issued by a judge outside his assigned district under Irish law.

THE SUPREME COURT

141 & 153/04

Murray C.J.

Denham J.

McGuinness J.

Geoghegan J.

Fennelly J.

BETWEEN

DYLAN CREAVEN, SILICON TECHNOLOGIES (EUROPE) LIMITED and BRADENVILLE HOLDINGS LIMITED

Applicants/Appellants

and

THE CRIMINAL ASSETS BUREAU, FELIX J. McKENNA and DISTRICT JUDGE DAVID ANDERSON

Respondents/Respondents

and

BETWEEN

DYLAN CREAVEN, SILICON TECHNOLOGIES (EUROPE) LIMITED and BRADENVILLE HOLDINGS LIMITED

Applicants/Appellants

and

THE MINISTER FOR JUSTICE, EQUALITY & LAW REFORM, IRELAND and THE ATTORNEY GENERAL

Respondents/Respondents

JUDGMENT delivered on the 29th day of October, 2004 by FENNELLY J.

1. Although this appeal from the judgment and order of the President of the High Court is concerned exclusively with the validity of a

number of District Court search warrants, it is set against the background of a large fraud investigation and associated criminal and

civil proceedings in the United Kingdom and Ireland.

2. The First-named Appellant (hereinafter “Mr Creaven”) incorporated the second-named Appellant (hereinafter “Silicon Europe”) to

conduct commodities trading out of a small rented premises at Ennis, County Clare. The commodity is computer processing units

(CPUs) of high value. Silicon Europe trades with zero-rated VAT status.

3. British Customs and Excise commenced a major investigation into an alleged VAT fraud, of a type commonly known as a “carousel”

and allegedly involving the Appellants. This type of fraud involves trade between two or more EU countries. Goods exported from one

Member State, in this case Ireland, to another, in this case the UK, are zero-rated, i.e., free of VAT. The importing trader must

charge VAT to the purchaser (within the UK) when he resells the goods, adding that VAT to the selling price. The next trader in the

chain treats this VAT as an input to be deducted from the VAT he charges on resale. Finally, if the goods are re-exported, they are

again zero-rated and the exporter is entitled to reclaim the VAT he has paid. The “carousel” involves using as importers “missing

traders,” companies that do not exist or disappear without paying any VAT. The word carousel suggests that goods may be imported

and re-exported precisely in order to collect VAT which is not returned to the Revenue. The British Customs suspect Mr Creaven of

engaging in such a “carousel” by using the other applicant companies in combination with fictitious companies in the UK. Mr Creaven

was arrested in England on 19th November 2002 and charged with a number of offences consisting of cheating the English Revenue

and with money laundering. The principal victim of that fraud would be the British Revenue, though its perpetration would also involve

the commission of offences in this jurisdiction.

4. The first-named Respondent (hereinafter “the Bureau”) and the second-named Respondent, its Chief Bureau Officer, in November

2002, obtained orders and issued proceedings pursuant to the Proceeds of Crime Act, 1996 (hereinafter “the Act of 1996), freezing

certain bank accounts in the name of the Appellants and generally claiming that assets of the Appellants constituted the proceeds of

crime. There has been extensive cooperation between the Respondents and British Customs and police.

5. The present appeal concerns a number of search warrants issued on 18th November 2002 in respect of several premises in this

jurisdiction. Five of these were issued pursuant to section 55 of the Criminal Justice Act, 1994 (hereinafter “the Act of 1994”). They

authorised searches at premises in Dublin, Limerick and Ennis. These included premises of Silicon Europe and a dwelling house of Mr

Creaven as well as premises of some third parties, including the offices of a firm of solicitors and of an accountant. Seven warrants

were issued pursuant to section 14 of the Act of 1996.

6. All the warrants were issued by the third-named respondent, a Judge of the District Court, (hereinafter “Judge Anderson”) on 18th

November 2002. At the relevant time Judge Anderson was assigned as a judge to sit temporarily in the Dublin Metropolitan District and

was not assigned permanently to any District Court district. The garda authorities notified the District Court office of their intention to

make urgent application for the warrants. The President of the District Court asked Judge Anderson to deal with the matter and he

sat, for that purpose, in the President’s chambers. All but one of the warrants sought related to premises outside the Dublin

Metropolitan District. Accordingly, in order to enable Judge Anderson to consider issuing warrants for the other areas, the President of

the District Court made orders, relying on statutory powers, assigning Judge Anderson as a District Judge temporarily respectively to

District No. 12 which includes Ennis and Shannon, to District No. 14 which includes Limerick and to District No. 20 which includes

Midleton County Cork. The warrants related to premises within four District Court districts, including Dublin Metropolitan District. The

legitimacy of these orders of the President is one of the principal issues on the appeal.

7. As is clear from the foregoing, Judge Anderson, at the time he issued the warrants, was not sitting in any of the relevant District

Court districts except the Dublin Metropolitan District. In addition, he had not been, prior to the applications for the Search Warrants

a judge assigned even temporarily to any district other than the Dublin Metropolitan District.

8. In Judicial Review proceedings in the High Court, which will have to be described in more detail later, the learned President rejected

the challenge to the five search warrants issued pursuant to section 55 of the Act of 1994, but upheld it in respect of the seven

warrants issued pursuant to section 14 of the Act of 1996. This Court is now faced with an appeal and a cross-appeal. The

Appellants appeal against the rejection of their challenge to the 1996-Act warrants and the Respondents appeal against the quashing

of the 1994-Act warrants.

The Statutory Powers

9. Part VII of the Criminal Justice Act, 1994 gives effect, in the State, to two Council of Europe Conventions, namely the European

Convention on Mutual Legal Assistance 1959 (done at Strasbourg on 20th April 1959) and to the Convention on Laundering, Search,

Seizure and Confiscation of the Proceeds from Crime (done at Strasbourg on 8th November 1990). It provides for a number of

methods of international cooperation in respect of criminal matters, including investigation, evidence-gathering and enforcement. The

Government has power to designate a foreign country so that applications may be made to our courts for enforcement of such

matters as confiscation (sect 46) or forfeiture (section 47) of property in the State which is liable to such action pursuant to the

order of a court of that country. Sections 51 and 52 provide for the taking of evidence respectively in the State for use outside the

State and outside the State for use in the State.

10. Section 55 enables the District Court to issue search warrants in order to look for material relevant to a criminal investigation

taking place in a foreign country designated by the Government. Section 55 provides, so far as relevant:

“55.—(1) The Government may by order designate countries in relation to which this section shall apply.

(2) [concerns drug trafficking; not relevant.]

(3) If, on an application made by the Director of Public Prosecutions or by a member of the Garda Síochána not below

the rank of superintendent, a judge of the District Court is satisfied that—

(a) there are reasonable grounds for believing that an offence under the law of a country in relation to which this

section applies has been committed, and

(b) the conduct constituting that offence would, if it had occurred in the State, constitute an offence in respect of

which the judge would have power under any enactment to issue a search warrant in relation to any place,

then, subject to subsection (4) of this section, the judge shall have the same power to issue a search warrant

authorising entry, search and seizure in relation to that place as he would have under the enactment in question in

respect of an offence committed in the State.

(4) No application for a warrant shall be made under this section except in pursuance of a direction given by the Minister

in response to a request received by him from the government of a country in relation to which this section applies and

made—

(a) on behalf of a court or tribunal exercising criminal jurisdiction in the country in question or a prosecuting authority in

that country, or

(b) on behalf of any other authority in that country which appears to the Minister to be an appropriate authority for the

purpose of this section,

and any evidence seized by a member of the Garda Síochána by virtue of this section shall be furnished by him to the

Minister for transmission to the government of the country concerned or, if that government so requests, to the court,

tribunal or authority for which it has been obtained.

[Subsections 5 to 9 concern proof and procedure and are not relevant]

(10) The Minister shall not give a direction under subsection (4) of this section unless provision is made by the law of the

country or by arrangement with the appropriate authority thereof that any evidence that may be furnished in response

to the request will not, without his consent, be used for any purpose other than that specified in the request and that

when such evidence is no longer required for that purpose (or for any other purpose for which such consent has been

obtained), it will be returned to him by the court, tribunal or authority that made the request under subsection (4) of

this section unless he indicates that the evidence need not be returned.”

11. The relevant provisions of the Act of 1996, unlike the cited provisions of the Act of 1994, concern the investigation of crime

believed to have been committed in the State. (See McK v D, Supreme Court, [2004] ILRM 419). So far as relevant, they are as

follows:

“14 (1) A judge of the District Court, on hearing evidence on oath given by a bureau officer who is a member of the Garda

Síochána, may, if he or she is satisfied that there are reasonable grounds for suspecting that evidence of or relating to assets

or proceeds deriving from criminal activities, or to their identity or whereabouts, is to be found in any place, issue a warrant

for the search of that place and any person found at that place.

(2) A bureau officer who is a member of the Garda Síochána not below the rank of superintendent may, subject to subsection

(3), if he or she is satisfied that there are reasonable grounds for suspecting that evidence of or relating to assets or

proceeds deriving from criminal activities, or to their identity or whereabouts, is to be found in any place, issue a warrant for

the search of that place and any person found at that place.

(3) A bureau officer who is a member of the Garda Síochána not below the rank of superintendent shall not issue a search

warrant under this section unless he or she is satisfied that circumstances of urgency giving rise to the need for the

immediate issue of the search warrant would render it impracticable to apply to a judge of the District Court under this

section for a search warrant.”

[remaining subsections not relevant.]

12. The provision principally cited as being relevant to the power to assign a District Judge temporarily is section 32 of the Courts

(Supplemental Provisions) Act, 1961:

“32. (1) The areas created under section 21 (repealed by this Act) of the Act of 1953 shall be the district court areas for the

purposes of the District Court

(2) The districts created under section 22 (repealed by this Act) of the Act of 1953 and the Dublin Metropolitan District shall

be the district court districts for the purposes of the District Court.

(3) The provisions (which relate to the assignment of justices of the District Court to districts) set out in the Sixth Schedule to

this Act shall have effect.

13. Under the Sixth Schedule, referred to in subsection (3), the Minister for Justice was given the power of temporary assignment to

districts of district justices and temporary district justices. That provision was repealed and replaced by section 37 of the Courts and

Court Officers Act, 1995 so as to confer the power on the President of the District Court. In its re-enacted form, it is as follows:

"3(1) A judge of the District Court who is permanently assigned to a particular district may, with his or her consent, from time

to time be temporarily assigned by the President of the District Court to another district, but such temporary assignment shall

be without prejudice to the exercise and performance by him or her of the privileges, powers and duties for the time being

conferred or imposed on him or her by law in relation to the district to which he or she is permanently assigned.

(2) A judge of the District Court who is not for the time being permanently assigned to a district may from time to time be

assigned by the President of the District Court to any district.”

(3) [concerns temporary judges and is not relevant]

The Facts: Section 55 Applications

14. As appears from the section, no application under the section is to be made “except in pursuance of a direction given by the

Minister [for Justice Equality and Law Reform] in response to a request received by him from the government” of a designated

country and made “on behalf of a court or tribunal exercising criminal jurisdiction in the country in question or a prosecuting

authority in that country…” (Emphasis added). The United Kingdom is, of course, a designated country for the purposes of the

section.

15. The Appellants’ solicitors wrote, in January 2003, to the Chief State Solicitor, calling attention to the provisions of the section and

requesting copies of “such information as was laid before the judge of the District Court in relation to this matter and which led to

his formation of an opinion that the conditions of section 55(3) of the Act had been met.” They also asked for “a copy of both the

request which the appropriate UK authority submitted to the Minister and the direction which he gave pursuant to it...” The Chief

State Solicitor responded that the “Chief Bureau Officer is of the view that it is not appropriate for the Criminal Assets Bureau to get

involved in the criminal process which is taking place in the United Kingdom and if you require any documentation you might deal

direct with the prosecuting authority in the UK.” This response ignored even the request for a copy of the sworn information. In the

event the appellants were able to obtain the latter from the District Court pursuant to that court’s rules having written the Chief Clerk

of the Dublin Metropolitan District.

16. It was only through the Appellants’ English solicitors that they succeeded in obtaining copies of the letter of request. It then

transpired that there were two such letters, one dated 22nd October and a second dated 14th November addressed by HM Customs

and Excise to the “Central Authority for Mutual Assistance, Ministry of Justice, Dublin.” A letter of 14th November 2002 explained that

the second letter replaced the first which had been withdrawn.

17. The information grounding the application for the five warrants pursuant to section 55 was sworn by Detective Superintendent E.

M. McLaughlin of the Criminal Assets Bureau, the first-named Respondent. He deposed that the application was being made pursuant

to a “Letter of Request for International Mutual Assistance received from her Majesty’s Customs and Excise (Solicitor’s Office) dated

the 22nd October 2002.” However, at this stage, it is accepted that the operative letter was that of 14th November. It states in its

opening paragraph:

“Her Britannic Majesty’s Commissioners of Customs and Excise being a designated prosecuting authority, I the undersigned,

[name given], Head of Prosecutions Group and Assistant Secretary (legal) for the purposes of the European Convention on

Mutual Legal Assistance 1959 (“the Strasbourg Convention”) of the Solicitor’s Office for Her Britannic Majesty’s Customs and

Excise. I have the honour to request the assistance of the Competent Legal Authority in Ireland in relation to certain enquiries

being conducted for Her Britannic Majesty’s Customs and Excise into conspiracy to cheat Her Majesty the Queen and the Public

Revenue.” (emphasis added).

18. The letter goes on to describe very fully the particular criminal investigation which was taking place in England and the assistance

which was required of the Irish authorities. However, the point debated on the appeal sufficiently appears from the fact underlined in

the above-quoted paragraph that the Customs and Excise are a “designated prosecuting authority.” Detective Superintendent

McLaughlin also produced a direction from the Minister as required by the section and nothing turns on that.

19. The original application for Judicial Review of these warrants in May 2003 claimed only that the letter of request dated 22nd

October 2002 was no longer extant when the application was made. However, separate Judicial Review proceedings were commenced

early in 2004 relating, not to the validity of the search warrants but to the power of the Minister to hand over documents seised to

the UK authorities. For present purposes, it suffices to say that an amendment to that application introduced the new and now

crucial ground that the preconditions to section 55(4) had not been complied with because: “as there was no request from the

Government of the United Kingdom for the issue of a warrant, the Minister in purporting to give a direction under section 55(4)

acted ultra vires…”

29. Mr James Ridout, a solicitor with Customs and Excise swore an affidavit of English law. Having referred to a number of English

statutes, he expressed the view that: “Her Majesty’s Customs and Excise is the department headed by the Commissioners of

Customs and Excise. It is considered as and treated as a Government Department forming part of the Crown carrying out functions

assigned to it by statute.”

21. This was, however, disputed, also on affidavit, by Mr James Lewis Q.C. He considered the corresponding English statutes giving

effect to mutual assistance. In his view, as a matter of English law, “HM Customs & Excise have no authority to transmit a letter of

request direct to the Central Authority for Mutual Assistance of the Ministry for Justice, Equality and Law Reform.” He considered

that “the transmission of this letter of request was unlawful.” It should have been sent to the Home Office for direct transmission to

the requested state.

Finnegan P carefully considered the affidavits of foreign law and clearly preferred the view of Mr Lewis. He thought that no valid

request had been received by the Minister and that accordingly the warrants were bad. It was said during the hearing of the appeal

that the respondents had effectively accepted that Mr Lewis’ opinion was correct. In their written submissions on their cross appeal,

the Respondents have accepted that the request was not made in accordance with “the internal requirements of English law.”

22. The Respondents, over the objection of the Appellants, adopted a different and, it was argued, new position on the appeal. They

questioned whether the decision of the learned President to the effect that the request for the warrants was not made in accordance

with English law could affect the validity of the warrants. They stated that, on its face, the request was made on behalf of a foreign

government, that the Irish authorities had no notice, actual or constructive, that the requirements of English law were not complied

with, that the Minister had properly received a request and that, as a matter of principle, the Irish courts should not adjudicate on

the validity of the acts of a foreign sovereign government under its own law. Any complaint in that respect should be made to the

courts of that country. In effect, the argument was that the High Court should not have gone behind the request to question its

validity in English law.

23. The Court did not agree that it should preclude itself from considering the admittedly new argument of the Respondents. It would

be undesirable that this Court uphold an incorrect decision infringing the principle that our courts should not review the internal

procedures of another country. In reality, however, the Appellants, in responding to the contention that the request was good on its

face, themselves argued a somewhat different case in this Court. They said that the request, on its face came from a prosecuting

authority and not from a government. This became the real issue on the appeal.

24. Mr Paul Gardiner, Senior Counsel, for the Appellants, submitted that section 55 distinguishes between a prosecuting authority and

a government. The jurisdiction of the District Court to make an order issuing a search warrant is dependant on the existence of a

direction from the Minister, which is, in turn, dependant on the existence of a request from the government of the requesting country.

This is clear from the fact that subsection (3), which confers the power to issue the warrant, is expressed to be “subject to

subsection (4)...” In this case, he said, the request, on its face, was made on behalf of a prosecuting authority.

25. Mr Gardiner also argued that, because of the terms of Statutory Instrument No. 41 of 1998 amending the District Court Rules, the

application could only be made “at any sitting of the Court within such Judge’s District.” Judge Anderson’s sitting in chambers was not

a sitting of the court and he was not sitting in his District (except for the case of the Dublin Metropolitan District). Thus, he did not

have the power at such a sitting to issue warrants.

26. Mr Edward Comyn, Senior Counsel, in reply, explained that there was concern that the President’s decision on English law might

have implications for future cases. He did not seriously dispute Mr Gardiner’s analysis of the section. However, he submitted that, as

compared with the procedures under the Extradition Acts, the procedure under section 55 was more open and informal. There is no

requirement that the request be in any particular form or that it be even in writing. He submitted that it was for the Minister to decide

whether there was a request. Accordingly, the important thing is the Minister’s direction. The District Judge should accept that.

Conclusion on Section 55 Warrants

27. In order to issue a search warrant under the section, the District Judge must, of curse be satisfied of the two matters prescribed

by paragraphs (a) and (b) of subsection (3), namely that there are reasonable grounds for believing that an offence has been

committed against the law of the foreign country and that there is a corresponding offence in this jurisdiction. His power, having been

so satisfied, to issue the warrant is, additionally, “subject to subsection (4)…” Subsection (4), in its own terms, is addressed to the

applicant for the warrant. It says: “No application for a warrant……shall be made….” However, the interpolation of the reference to

subsection (4) in subsection (3) would appear entirely unnecessary, unless it were intended that the District Judge was obliged to

satisfy himself that the requirements of that subsection had been satisfied.

28. Accordingly, I am satisfied that the District Judge was obliged to satisfy himself that the requirements of subsection (4) had been

met. Mr Comyn, however, submits that it is for the Minister to give a direction and that it is for him alone to decide whether he has

received a request which satisfies the provision. In this connection, I should say, firstly, that I cannot accept that there is any reality

in the contention that such a request would not be made in writing. While this may not be expressly required, it seems unreal to

suggest that it would not be. The request has to be made “on behalf of” one or other body (court, tribunal, prosecuting authority

etc…) in the other country. The affidavit of Mr Lewis shows that, within the United Kingdom, at any rate, the request has to be

transmitted from the prosecuting authority to the Secretary of State for transmission to the other country. There is sufficient

formality in these provisions to make it implicit that the request will be in writing.

29. Nor can I accept that it is for the Minister and for him alone to be satisfied as to the provenance of the request. If that were so,

words such as “appearing to emanate from the government of a country...” would have been used. The words actually used are:

“received by him from a government...” This is a matter of objective fact, capable of being determined objectively. For the reasons

already given, I believe it is clear that this is a matter which falls within the purview of the District Judge. I do not mean to suggest

that he, any more than the Minister, should “go behind” the terms of a letter containing a request. The sworn information will refer to

the Minister’s direction and to the request. The Judge is certainly entitled to accept that a direction given by the Minister on the

basis of a request which he says, expressly or impliedly, emanates from the government of a designated country is properly based on

such a request.

30. Here, however, the problem is that, as Mr Gardiner has urged, the request actually produced does not even purport to emanate

from the government of the United Kingdom or from any Minister of that government. It expressly states that it comes from a

“prosecuting authority.” The District Judge is not entitled to close his eyes to the fact that this is one of the bodies on whose behalf

the government is entitled to transmit a request. It is, in that sense, clear that, on its face, the request was not made in accordance

with the provisions of subsection (4). Since subsection (4) had not been complied with, the District Judge could not issue warrants,

even if satisfied of the matters mentioned in subsection (3), paragraphs (a) and (b).

31. I should add that I would not accept Mr Gardiner’s submission based on S.I. No. 41. I accept Mr Comyn’s submission that the

provision in question applies only to the applications on notice, pursuant to section 38 of the Act of 1994, which are mentioned in

that S.I. It would, as he says, be surprising if applications for the issue of search warrants, often a matter of great urgency, had to

be made at ordinary public sittings of the court. Nonetheless, I am satisfied that the cross appeal should be dismissed and the order

of the learned President quashing the warrants issued pursuant to section 55 affirmed.

32. I cannot refrain from adding that I deplore the refusal of the Respondents to provide to the Appellants copies of the essential

documents which had been used to ground the applications for the warrants. The reply that that it was “not appropriate for the

Criminal Assets Bureau to get involved in the criminal process which is taking place in the United Kingdom…” was, at best,

disingenuous. The request made by the solicitors for the Appellants was a reasonable one. It related to the materials used for the

purposes of a proceeding in an Irish court. It was reprehensible to refuse it and indefensible to advance a justification which was

patently false.

33. The foregoing is sufficient to dispose of any issue of the validity of the section 55 warrants. However, it is also necessary to

consider the principal appeal of the Appellants. In fact, the arguments advanced concerning the validity of the section 14 warrants

are equally applicable to those issued pursuant to section 55.

Arguments on the Section 14 Warrants

34. The learned President identified the issue affecting the jurisdiction of the District Court to issue the section 14 warrants as

follows:

“Had [Judge Anderson] jurisdiction to issue the warrants:

(a) The District Judge being assigned to more than one district, or

(b) The District Judge issuing the Search Warrants, while not physically present within the relevant District (except in the case

of the Warrant issued in the Dublin Metropolitan District).”

35. It was certainly unusual, to say the least, that a single judge should be in a position to make orders purporting to have effect

simultaneously in four District Court districts, without leaving the chambers of the President in the Dublin Metropolitan District. This

could only be achieved by the combination of the exercise of the power to assign District Judges and the claim that he was not

required, at least for the purposes of the power to issue warrants, to sit in the district to which he was assigned.

The Power to assign to more than one District

36. The learned President decided this issue against the Appellants in reliance on the Interpretation Act. He had to interpret the

following words of paragraph 3(2) of the Sixth Schedule to the Courts (Supplemental Provisions) Act, 1961, as amended by section 37

of the Courts and Court Officers Act, 1995:

“A judge of the District Court who is not for the time being permanently assigned to a district may from time to time be

assigned by the President of the District Court to any district.”

37. He considered that the words “any district” could be either singular or plural. Thus, the President had power to assign Judge

Anderson simultaneously to several districts.

38. The Appellants submit that a District Judge cannot be assigned to more than one district on any one day. An assignment may be

to “any district” and not to “any number of districts” which, it is submitted, is the consequence of the learned President’s

interpretation. The word “any” cannot import both the singular and the plural. The Respondents say that this argument is

misconceived. There is nothing incongruous about construing the provision as allowing assignments to “any districts.”

39. It seems to me that the problem presented in the unusual circumstances of this case arises, not so much from the multiple

assignment of Judge Anderson, as from the fact that he purported to sit other than within the districts in respect of which he

purported to make orders. When one reads the amended from of paragraph 3 in its entirety, it becomes clear that it does not

recognise any principled objection to a District Judge being assigned simultaneously to more than one district. Paragraph 3(1)

envisages that a permanently-assigned Judge “may from time to time be temporarily assigned by the President of the District Court

to another district…” The paragraph carefully preserves “the privileges, powers and duties for the time being conferred or imposed

on him or her by law in relation to” his permanent district. There seems to be no reason, for reasons equally applicable to judges not

permanently assigned, to interpret that provision as restricting the President’s power to one such temporary assignment. The

Interpretation Act enables the word “district” to take the plural form.

40. There does not seem to me to be any reason to interpret paragraph 3(2) differently. The word “district” may or may not be given

the plural form, “any districts.” In my view, however, that is not even necessary. The President may make an assignment to “any

district,” in the singular, and later make a further assignment of the same judge to "any [other] district.”

41. While it may be constitutionally significant that the legislature decided to transfer this power from the Minister to the President, it

is also obvious that this gives greater flexibility to the system. It enables the President to react to the changing demands on the

District Court and to assign Judges according to need. Subject to consideration of the quite separate issue of whether a District

Judge may sit otherwise than within his district, I can see no objection to the possibility of a District Judge being assigned to more

than one district at the same time. It may well be convenient and may accord with the efficient despatch of the business of the

court for the President to be able to assign a Judge to sit in any one of a number of specified districts as the need arises. It does not

follow that the President could assign any or all judges routinely to sit in all District Court districts. I agree with the reservations of

Geoghegan J. in this respect.

42. I would, therefore, uphold the decision of the learned President on this point.

May a District Judge exercise powers in relation to a district, while sitting elsewhere?

43. This is undoubtedly the most substantial and it was agreed to be the most difficult question which arose at the hearing of the

appeal.

44. The learned President decided this issue against the Appellants by reference to the history of the exercise of powers of courts of

summary jurisdiction in Ireland prior to 1923. He accepted that a distinction should be made between judicial and ministerial acts. The

latter could be performed, he held, while a judge was sitting outside his district, while the former could not.

45. It is essential, for an understanding of this decision to set out the essential steps of his analysis, which were as follows:

1. The President held that the combined effect of the provisions of the Courts of Justice Acts, 1924 to 1961 is that a District

Judge has all the jurisdiction formerly vested in a justice of the peace when not sitting at petty sessions.

2. Referring to The State (Dowling) v Kingston [1937] I.R. 699, he held that this jurisdiction included both ministerial and judicial

acts. He then reviewed at some length a number of authorities relating to the distinction between these two types of act. To a

considerable extent, those authorities were concerned with whether justices were amenable to certiorari, which they would be

if the act in question were purely ministerial, whereas they would not be, if they were exercising a discretionary power.

3. A number of the authorities cited by the learned President suggested that the issuing of a warrant was the exercise of a

judicial power. O’Connor’ Justice of the Peace, (page 145, footnote 1) says: “The issuing of a warrant, it is submitted, is

judicial.” In Fourth City Building Society v Church Warden of Eastham [1892] 1 QB 661, it was held that that justices deciding

on the issue of a warrant to distrain for rates were “not necessarily” exercising a ministerial duty, “but are entitled to enquire

into the validity of the objections taken by the party summoned and to state a case for the opinion of the High Court.” The

learned President concluded that this showed that the act was judicial.

4. The learned President cited a number of cases from Paley’s Law and Practice of Summary Jurisdiction concerning the

distinction for the purpose of determining whether justices could be liable in damages. They could not be liable in respect of

purely ministerial acts. He referred to only one decision relevant to whether a power might be exercised while a justice was not

physically present within his jurisdiction. That was a case of Helier v Benhurst, (summarised in Paley) relating to the oath to be

taken by a person preparatory to an action against the Hundred under the Statute of Hue and Cry. The justice taking the oath

was not physically present within his jurisdiction, but, as the act was purely ministerial, he having no discretion to refuse to

take the same, the oath was good.

5. Finally, the learned President referred to two decisions, one of the former Supreme Court, State (Batchelor) v District Justice

O’Floinn and another [1958] I.R. 155, and one of the present Supreme Court, Simple Imports Ltd and others v Revenue

Commissioners and others [2000] I.R. 243. In the final analysis, his judgment turned on the distinction he drew between these

two cases. In the first, the Court (O’Daly J) held that a warrant under the Merchandise Marks Act, 1887 could be issued “only

after a judicial consideration of the evidence.” In the second, Keane J stated the District Judge was “no doubt performing a

purely ministerial act in issuing the warrant.” These cases will need fuller discussion, in the light of the submissions on the

appeal.

Submissions regarding the power of Judge Anderson to sit outside his district

46. Mr Michael Collins, Senior Counsel, on behalf of the Appellants fully supported the approach and analysis adopted by the learned

President. In particular, he argued for the maintenance of a distinction between ministerial and judicial acts as applied by the learned

President to the District Court. He accepted that a purely ministerial act may be performed by a District Judge, while he is not

physically present in his district. He submitted that the learned President erred only in holding that the issuing of a search warrant

was not a judicial act. In particular, he said that he misinterpreted the dictum of Keane J in Simple Imports and that it is clear that a

District Judge must satisfy himself that the facts have been sufficiently proved to enable him to exercise his discretion and that this is

a judicial function. The Batchelors case shows that this is a judicial function. He also referred to the decisions of Hamilton J in the

High Court in Berkeley v Edwards [1988] I.R. 217 and Byrne v Grey [1988] I.R. 31.

47. Mr Collins presented a detailed argument at the hearing of the appeal concerning the establishment and the jurisdiction of the

District Court and the transfer to it of certain powers and functions exercised by justices prior to 1922. He said that the Courts of

Justice Act, 1924 creates no specific jurisdiction regarding search warrants and that it is, therefore necessary to look at section 22 of

that Act for the carry over of previous powers and jurisdictions. He laid particular emphasis on the continuity between the previous

powers of justices and the powers of the District Court, saying that the regulation of the limits of the powers of the previous justices

of the peace applied to the new District Justices.

48. It was only as an alternative argument that Mr Collins submitted that the entire scheme of the Courts of Justice Acts show that

the District Court may exercise its jurisdiction only in accordance with the statutory scheme of districts.

Decision on whether a District Judge can exercise jurisdiction while sitting outside his area.

49. At one level, it would be possible to dispose of this appeal by simply considering whether the learned President was correct in law

in holding that the issue of a search warrant is a ministerial and not a judicial act or at least an act, in respect of which the District

Judge is bound to act judicially. As I will explain, I am satisfied that the learned President fell into error in holding that it was purely

ministerial. However, I also believe that the Appellants’ analysis of the nature of the powers of the District Court is erroneous.

However, I do not think it is possible to reach a definitive conclusion on the issue without consideration of the nature and origin of

that court.

50. Kennedy C.J. in R. (Moore) v O’Hanrahan [1927] I.R. 406 at 416 traced the historical background to the jurisdiction of the District

Court. In the period intervening between the signing of the Treaty in December 1922 and the passing of the Courts of Justice Act,

1924, based on the Report of the Glenavy Committee, the government dispensed with the services of the existing Resident

Magistrates (the “Notice to Quit”) by terminating all commissions of the peace granted by the former British administration. It used

the power conferred by the Constabulary (Ireland) Act, 1836 (6 & 7 William IV., Chapter 13) to appoint 27 new persons, designating

them as District Justices.

51. Section 6 of the Adaptation of Enactments Act, 1922 defined a "District Justice" to mean “a Magistrate appointed since the 6th

day of December, 1922, under the British Statute 6 & 7 William IV., Chapter 13.” The section provided that “every power, authority

and duty conferred or imposed by any British Statute...” either on one or more Justices or Resident Magistrates was thenceforth to

be exercisable or performable by one District Justice.

52. The District Justices (Temporary Provisions) Act, 1923 provided for the appointment of District Justices. Section 2, so far as

relevant, provided:

“2(1) It shall be the duty of each District Justice appointed under this Act to hold District Courts at such places within the

District allotted to him and at such times as shall be prescribed by the Minister.

(2) A District Justice sitting in and holding a District Court pursuant to this Act shall have all the powers, jurisdiction and

authority which were immediately before the 6th day of December, 1922, vested by statute or otherwise in a Justice of the

Peace sitting in Petty Sessions”. (emphasis added)

53. The Act of 1923 did not, however, establish a new court. That took place only with the passing of the Courts of Justice Act,

1924, section 67 of which established the new “District Court of Justice.” Section 68 of that Act provided:

“When and so soon as the Minister for Home Affairs has divided Saorstát Eireann into suitable Districts there shall be appointed

so many Justices (Breitheamhain) of the District Court as may be necessary: Provided that the number of such justices at any

time shall not exceed thirty-three.”

54. Section 77 provided that the “District Court shall have and exercise all powers, jurisdictions, and authorities which immediately

before the 6th day of December, 1922, were vested by statute or otherwise in Justices or a Justice of the Peace sitting at Petty

Sessions…” That was the transferred jurisdiction. It was supplemented by section 78, which transferred, inter alia, all jurisdictions

vested in or capable of being exercised by District Justices pursuant to the Act of 1923. Section 77 also conferred what might be

called new originating jurisdictions both civil and criminal and in respect of licensing. Section 79, as amended in some subsequent

enactments, lays down clear rules for the local exercise of jurisdiction in respect of each of the three categories of case: criminal,

civil and licensing. It is true that there is no universal provision for local jurisdiction exercisable in every type of case. Nonetheless, it

is clear that the District Court was to be what its name implies, namely a court exercising jurisdiction in designated districts, with

District Justices assigned to each. It is curious, nonetheless, that section 2(2) of the Act of 1923, which appears to have laid down

such a rule, does not appear to have been repealed. I agree, however, with the observation of Geoghegan J that the provision must

be regarded as being “spent.” It merely illustrates the underlying assumption that the jurisdiction is to be exercised by reference to

districts designated for the District Court.

55. In a series of cases decided in the 1930’s, the then High Court and Supreme Court traced the devolution of powers on the District

Justices appointed pursuant to the Courts of Justice Act, 1924. The High Court in State (Dowling) v Kingston, a case cited by the

learned President, considered the power of arrest under “backed” warrants established by section 29 of the Petty Sessions (Ireland)

Act, 1851. The judgments refer to this power as a “ministerial act.” It had been submitted that, as such, the power had not devolved

on the District Court. Hanna J said:

“Every Judge has, in virtue of his office, to do ministerial acts in addition to the exercise of his judicial power. It is well settled

law that this very act of "backing" a warrant is a ministerial act. Jurisdiction is also used in some of the sections of the Courts

of Justice Act to indicate the territorial limits of the Justices' power and authority. I am of opinion that the narrow meaning

attempted to be put upon the word "jurisdiction” under sect. 78 [of the Act of 1924] cannot be sustained. In my opinion,

"jurisdiction" in that section is a compendious word, and includes all the functions within the range of the ministerial,

territorial, or judicial powers of the District Justice, whether performed in Court or in the execution of his office. It would,

therefore, include the power of "backing" a warrant if Mr. Little [a District Justice, who had “backed” a Scottish arrest

warrant] was the legislative descendant of the Justice mentioned in sect. 29 of the Petty Sessions Act.”

56. Mr Collins placed particular reliance on section 22 of the Act, applied to the District Court by section 78. It reads:

“The jurisdiction vested in and transferred to the High Court and the Supreme Court and the Chief Justice respectively shall be

exercised so far as regards pleading, practice and procedure generally, including liability as to costs, in the manner provided

by such rules of court as may be made pursuant to this Part of this Act, and where no provision is contained in any such rules

of court and as long as there shall be no rule with reference thereto, it shall be exercised as nearly as possible in the same

manner in which it might have been exercised by the respective courts from which such jurisdiction shall have been

transferred, by this Act”. (emphasis added).

57. That provision concerns “pleading, practice and procedure generally...” It does not confer jurisdiction where it does not otherwise

exist. The former High Court and Supreme Court in State (Dowling) v Kingston were concerned, as clearly emerges from the judgment

of Hanna J, to establish whether the power of backing warrants under the Petty Sessions Act had been transferred to the District

Court. It was in that sense that Hanna J used the expression, “legislative descendant.” The present case is not concerned with the

devolution of a power which existed before 1922. It concerns powers to issue search warrants newly created respectively in 1994 and

1996. Section 22 of the Act of 1924 does not assist. The jurisdiction conferred by the Acts of 1994 and 1996 must be exercised in

accordance with the rules of the District Court and, if there are none, in accordance with the applicable provisions of the Courts of

Justice Acts.

58. The District Court was newly established under the Constitution by the Courts (Establishment and Constitution) Act, 1961.

Section 5 of that Act provides that it is to be constituted of a President and “such number of other judges…… as may from time to

time be fixed by Act of the Oireachtas.” Section 22 of the Courts of Justice Act, 1953 had provided for the creation of District Court

districts. Although that section was repealed by the Act of 1961, section 32(2) of the latter Act provided that the “districts created

under section 22 (repealed by this Act) of the Act of 1953 and the Dublin Metropolitan District shall be the district court districts for

the purposes of the District Court.” Section 32(3) provides:

“The provisions (which relate to the assignment of justices of the District Court to districts) set out in the Sixth Schedule to

this Act shall have effect.”

59. Thus, the acts provide for the creation of districts “for the purposes of the District Court” and for the assignment of District

Judges to those districts.

60. Section 79 of the Courts of Justice Act, 1924, remains in force. It lays down the rules for the exercise of local jurisdiction. For

example, it states: “In criminal cases, [it is to be exercised] by a Justice for the time being assigned to the District wherein the

crime has been committed or the accused has been arrested or resides...”

61. There is, however, no express provision that the District Judge can only exercise his jurisdiction while sitting in his district. In my

view, the reason can only be that this is considered to be so obvious as not to need stating.

62. It is helpful to consider Rule 34 of the Rules of The District Court, entitled: “Miscellaneous Search Warrants.” In the case of some

ten different statutory powers to issue search warrants, the rules provide, with only slight variations, that the application is to be

made “at any sitting of the Court for the court district wherein the property [or such place] is located [or situated].” Even here,

there is no express provision that the Judge be sitting within his district, but implicitly he must be if it is to take place “at any sitting

of the Court.” The legislature has, of course, authorised the issuing of search warrants in a very large number of cases. (see, for

example, the list contained in Walsh, Criminal Procedure, (Thomson Round Hall 2002 p 403.) The rules do not provide for every case.

The present case is an example of that omission.

63. In my opinion, the Courts of Justice Acts give effect to a consistent policy for the exercise of the powers of District Judges by

reference to districts to which they are assigned. This is demonstrated, in particular, by the terms of paragraph 3 of the Sixth

Schedule to the Act of 1961, which I have already discussed. I believe that it is implicit that District Judge cannot exercise his judicial

power while sitting outside his district.

64. I cannot leave this topic without commenting on the submissions based on Simple Imports. First, however, it is important to recall

the dictum of O’Daly J (as he then was) in State (Batchelor) v District Justice O’Floinn and another:

“The appellant's submission in short amounts to this - that warrants may be issued under s. 12 without a right in the superior

Courts to exercise any effective check as to whether they are being issued in the cases and manner authorised by statute,

that is to say, that without such check premises and homes may be entered, searches made and goods seized (albeit

provisionally). Reduced to these blunt terms the submission immediately shocks one's sense of justice: but it does more, it

throws into relief that a warrant under s.12 trenches upon rights of the citizen which the law guards jealously. The section,

while it empowers a justice to authorise interference with these rights, does so only after a judicial consideration of certain

evidence. It, therefore, seems to me that the warrant emanating from an inferior tribunal is well within the category of orders

which it has for long been established are reviewable on certiorari.”

65. There is undoubtedly some confusion about the use of the terms, judicial, executive and ministerial powers respectively. At an

earlier point in Batchelor, it is recorded that counsel had conceded that the power of the District Court to issue a search warrant was

a “judicial power.” It would appear to be more correct, as Geoghegan J suggests in his judgment, to say that they are powers which

must be exercised judicially. This emerges from some more recent cases concerning the issue of search warrants. In Ryan v

O’Callaghan (Unreported, High Court 22nd July 1987), Barr J held that:

“It follows, therefore, that the issue of a search warrant prior to a commencement of a prosecution is part of the process of

criminal investigation and is executive rather than judicial in nature.”

66. This statement was made, however, in a context where Bar J was being asked to hold that power to issue search warrants could

not be constitutionally be conferred on a peace commissioner. Barr J emphasised that there were important protections attached to

the exercise of the power and that the peace commissioner was an independent officer who would have to be satisfied on the

evidence that it was right and proper to issue a warrant. This decision was discussed and followed by Hamilton P (as he then was) in

Byrne v Grey, cited above. At page 40, he said:

“It is quite clear that the District Justice or peace commissioner issuing the warrant must himself be satisfied that there is

reasonable ground for suspicion. He is not entitled to rely on a mere averment by a member of the Garda Síochána that he,

the member of the Garda Síochána, has reasonable grounds for suspicion. A member of the Garda Síochána seeking the issue

of a warrant pursuant to the provisions of s. 26 of the Misuse of Drugs Acts, 1977 and 1984, must be in a position to so satisfy

either the District Justice or the peace commissioner of the relevant facts so that the District Justice or the peace

commissioner can satisfy himself in accordance with the requirements of the section. He is not entitled to rely on the

suspicion of the member of the Garda Síochána applying for the warrant”.

67. He continued:

“It is quite clear that in deciding whether or not to issue the warrant the first respondent was obliged to act judicially. As

stated by Lord Justice Atkin in Rex v. Electricity Commissioners. London Electricity Joint Committee Co. (1920) Ex parte [1924]

1 K.B. 171 at p. 205:-

‘Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having

the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the

King's Bench Division exercised in these writs.’”

68. The result is that the power to issue the warrant may be described as an executive power. However, as in this case, it is

expressed in terms of discretion: the Judge “may, if he or she is satisfied that there are reasonable grounds…” Thus, the Judge must

act judicially. It is in that sense that the dictum of Keane J (as he then was) in Simple Imports, upon which the Respondents rely,

must be read. He said:

“The District Judge is no doubt performing a purely ministerial act in issuing the warrant. He or she does not purport to

adjudicate on any lis in issuing the warrant. He or she would clearly be entitled to rely on material, such as hearsay, which

would not be admissible in legal proceedings.”

69. It would be quite wrong to treat that passage as deciding that the function was purely “ministerial” in the sense contended for in

this case. Keane J explained what he meant by it. He intended to convey that the District Judge is not deciding any “lis.” He was

taking a step in a criminal proceeding. However, both before and after the disputed passage, Keane J made it abundantly clear that a

judicial approach had to be maintained. Immediately before the quoted sentence, he had stated:

“While the syntax [of the relevant section] is rather odd, the meaning is clear: the District Judge, before issuing the warrant,

must have come to the conclusion, from the information on oath of the customs officer, not merely that he (the officer)

suspects that there are uncustomed or prohibited goods on the particular premises but that his suspicion is "reasonable".

70. On page 250, there appears the following passage:

“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.”

71. That principle has been recognised from early times by the common law. In a passage cited by Lord Hoffman in Attorney General

of Jamaica v. Williams [1998] A.C. 351, at p. 355, Lord Camden C.J. said in Entick v. Carrington [1765] 2 Wils. 275 at p. 291:-

"[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his

leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour's ground, he must

justify it by law ..."

72. Under the Constitution, this principle is expressly recognised, in Article 40.5, in the case of the dwelling of every citizen.

Protection against unjustified searches and seizures is not, however, confined to the dwelling of the citizen: it extends to every

person's private property.

73. It remains then to be decided whether Judge Anderson, sitting in fact in the Dublin Metropolitan District only, had the power to

act as a District Judge of the three other districts, numbers 12, 14 and 20, to which he had been assigned temporarily. I am not at all

convinced that this matter can be decided by reference to a theory of distinction between judicial and ministerial powers exercisable

by justices of the peace before 1922. I have several reasons for coming to this conclusion. Firstly, it is not often now remembered

that the justices of the peace, while they sat judicially at Petty Sessions as well as Quarter Sessions, had a vast number of other

purely administrative powers. Their peace-keeping functions were, in several respects, more in the nature of policing powers. The

reference to ministerial acts may have been more relevant to the exercise of powers of this type. Secondly, the powers of a justice

of the peace depended on the terms of his commission from the Crown. To quote Paley’s Law and Practice of Summary Convictions,

(Sweet & Maxwell, London, 1904), the “authority of justices of the peace appointed by commission from the Crown is limited to the

respective counties therein specified.” The authority of a District Judge is quite different and depends on the Courts of Justice Acts. I

do not consider that section 22 of the Courts of Justice Act, 1924, dealing as it did with “pleading, practice and procedure

generally,” can be invoked to cover such a fundamental matter as jurisdiction.

74. In my opinion, the entire structure of the District Court is premised on the concept of the district. The Acts provide for the

division of the State into Districts. (section 32(2) of the Act of 1961). Judges are assigned either permanently or temporary to

districts. (section 32(3) of the same Act and the Sixth Schedule as amended.). Jurisdiction in civil and criminal matters and in respect

of licensing is exercised by reference to the district. (section 79 of the Act of 1924).

75. It appears from Order 34 of the District Court Rules that, special provision is made a number statutory powers for the issue of

search warrants, always based on a link with a district. What is the consequence of the absence of such a rule in respect of either

section 55 of the Act of 1994 or section 14 of the Act of 1996? It is not necessary, for the purposes of this case to decide points

which do not directly arise. It may be permissible, for example, to allow for a District Judge to issue warrants permitting searches

outside his area. Where a prosecution has been commenced within a particular district, it may offend no principle to allow a related

search to be executed in another district. The point is, however, that the Judge would, at least, be sitting within his own district.

76. The crux of the present case is that Judge Anderson was not sitting in three of the District Court Districts in respect of which he

issued warrants. I believe that offends against the basic principle that the District Court exercise jurisdiction by reference to districts.

The extreme result of combining the power of the President of the Court to assign a District Judge to several districts at the same

time is that the entire jurisdiction of the District Court might be exercised from Dublin. In my view, that is an unacceptable result. I

believe that Judge Anderson would have had to sit in each of the respective districts and the fact that he did not do so rendered the

warrants (except for one relating to Dublin Metropolitan District) invalid.

77. I would, therefore, allow the appeal insofar as the learned President refused to quash the warrants issued pursuant to section 14

of the Act of 1996 and substitute an order quashing them, with the exception of the warrant in respect of Dublin Metropolitan

District.

78. This conclusion would, I think automatically, determine the remaining issue determined by the learned President. He ruled that the

documents and other items which he had held to have been seised pursuant to the five warrants pursuant to section 55 of the Act of

1994, which he had quashed should be handed over to the Criminal Assets Bureau, “the body in whose favour the Section 14

warrants were issued.” It is unnecessary to consider whether this decision was correct. If both sets of warrants were invalid, the

documents seised thereunder should be returned to the true owners, thought it may be desirable to hear counsel on the form such an

order should take.