Conviction quashed as search warrant issued without jurisdiction rendered seized evidence inadmissible under constitutional exclusionary rules.

COURT OF CRIMINAL APPEAL

105/07

Macken, J.

Murphy, J.

de Valera, J.

BETWEEN:

THE DIRECTOR OF PUBLIC PROSECUTIONS

-AND-

MARTIN JOYCE

APPLICANT

Judgment of the Court delivered by Macken, J on the 21st day of April 2008

The applicant was convicted of the offence of keeping prohibited goods contrary to Sections 102(3)(c) and (4) of the Finance Act

1999 as amended by the Finance Act 2001, on the 14th August 2003. He was sentenced, on the 11th day of May 2007, to two years

imprisonment.

He appeals to this Court against his conviction on several grounds, falling naturally into four groups, now reduced to two, which can

be briefly described as follows:

1 The search warrant is invalid. The judge of the District Court who issued the warrant was not sitting, at the time of

such issue, in the District to which he had been assigned, within the meaning of the judgment in Creaven v Criminal

Assets Bureau [2004] 4 IR 434.

The respondent denies that the warrant is invalid, and argues that it is fully in line with a correct interpretation of the decision in

Creaven, supra,. The respondent submits that even if this Court finds that it is invalid, this does not have as its consequence that

the material seized pursuant to it is inadmissible, on the basis of the case law in that regard.

2 The learned trial judge erred in law in permitting the prosecution to reopen its case after completion of the evidence, in

order to prove, formally, the statutory instruments which prescribed markers, and further, although the prosecution was

permitted to reopen its case, the learned trial judge wrongly failed to acquit the applicant, notwithstanding the

prosecution’s failure to prove the Commencement Order for the relevant section(s) of the Finance Act 1999, as amended.

As to this ground, the respondent submits that the learned trial judge permitted formal proof of the relevant Statutory Instrument

concerning “prescribed markers”, and this was permissible in law. The judge’s ruling did not concern the Commencement Order, and

the Court transcript itself make this clear. The applicant made no submission in relation to the absence of proof of the

Commencement Order, and cannot now seek to do so in the course of this appeal, having regard to the decision in DPP v Cronin

[2006] 4 IR. In the alternative, it is not incumbent on the prosecution in every case formally to prove a Commencement Order in

relation to a statute under which an accused is indicted, but only in the case where the subordinate legislation creates the offence.

Commencement Orders do not, in the relevant circumstances of this case, create an offence nor its ingredients, but merely provide

the time frame for the implementation of legislation. That being so, it was not necessary to prove the Commencement Order at all,

and the judge was, in any event, entitled to take judicial notice of the existence of the statute, since it had been in force for a

period of 22 months prior to date of the hearing.

The Validity of The Warrant:

By far the more important of the two extant grounds raised on behalf of the applicant is the contention that the search warrant was

invalid for lack of jurisdiction. The significance of the warrant and its validity arise by virtue of the following. This trial concerned

charges made against the applicant in the following terms:

“Keeping prohibited goods contrary to s.102(3)(c) of the Finance Act 1999 and to s.102(4) of the Finance Act 1999 as

amended by the Finance Act 2001.”

The particulars of the charge are that the applicant, as accused, on or about the 14th day of August 2003 at Primatestown,

Ashbourne, County Meath kept prohibited goods as defined by s.94 of the Finance Act 1999, namely, one steel tank, a pallet of

“sophisticat” cat litter, a Puisi electric pump, hoses, a compressor, a Yanmar mini digger and ancillary equipment.

It was the case for the prosecution that all of these goods were prohibited goods, and, in a nutshell, were intended to or were being

used for the unlawful removal, from certain mineral oil, of prescribed markers. The significance of this is that the marker is legitimately

placed in those oil products for the purposes of allowing a beneficially low price to be charged to customers operating certain types of

machinery. When the marker is removed, the product can then be sold on the market at a substantially higher or even, “normal” price,

without the payment of the appropriate duties and with a larger profit. Information relating to the existence of the prohibited goods

at certain premises associated with the applicant was obtained by persons acting on behalf of the Commissioner for the Revenue, who

investigated the lands or premises where these products or equipment was to be found, this having been done by climbing a fence

and viewing the location in question, and some at least of the goods.

The Argument:

The applicant contends that the issue of the validity of the warrant arises because the prohibited goods in question were seized on

foot of a search warrant issued by District Judge Brophy in the circumstances above described. Counsel for the applicant argues that,

absent a valid warrant, the prohibited goods could not be seized in any circumstances by the person executing the warrant, based, it

is argued, on s.136 of the Finance Act 2001. That Section reads as follows:

“(1) An officer may, at all reasonable times, on production of the authorisation of such officer if so requested by any

person affected, enter a premises or other place (other than a dwelling) in which –

(a) the production, processing, holding, storage, keeping, importation, purchase, packaging, offering for sale, sale or

disposal of any product referred to in section 97(1) is being or is reasonably believed by the officer to be carried on,

(b) the manufacture, distribution, storage, repair, modification, importation, dealing, delivery or disposal of

mechanically propelled vehicles is being, or is reasonably believed by the officer to be carried on, or

(c) any records relating to, or reasonably believed by the officer to relate to, the products or activities referred to

in paragraphs (a) and (b) are being kept or are reasonably believed by the officer to be kept.

...

(5) without prejudice to any power conferred by subsections (1) to (4), a judge of the District Court may, if satisfied on

the sworn information of an officer that there are reasonable grounds for suspecting that –

(a) anything liable to forfeiture under the law relating to excise,

or

(a) any records relating to transactions in contravention of the laws relating to excise, are kept or concealed on or

at any premises or place, issue a search warrant.” (emphasis added)

The warrant in the present case issued pursuant to s.136(5), the argument of the applicant being that there is no power to seize

under s.136(1), a matter dealt with later in this judgment.

The facts giving rise to the invalidity claim are not really in issue. In consequence of the above matters, an application was made to a

District Judge for a search warrant to permit certain investigators or others being “authorised persons”, to go on the lands in question

and, in execution of the warrant, to remove certain items from the land or otherwise take possession of them. The warrant, dated the

14th August 2000, issued on a document entitled “The District Court for Dunshaughlin”, under the signature of Judge John Brophy,

described as “Judge of the said District Court assigned to the said District”. District Judge John Brophy was, at the relevant date, it is

agreed, permanently assigned to District Court Area No. 10. Dunshaughlin is in that District Court Area. The lands in question in

respect of which the warrant issued, at Primatestown, Dunshaughlin, County Meath, are also in the same District Court Area No. 10.

The District Judge had been sought out by the officer in question in the knowledge that he, the judge, was the appropriate judge

permanently assigned to the District Court Area in question. On the 14th August 2003, however, the District Court was not in session

in Dunshaughlin, due to the long vacation. The application was therefore made to the District Judge at his home, which happened to

be outside District Court No. 10 and Area, and in the adjoining Dublin Metropolitan District Court Area.

Counsel for the applicant, Mr Humphreys BL, submits that the warrant was issued by a judge of the District Court sitting at his home

outside the District and was therefore invalid in law, by virtue of the decision of the Supreme Court in Creaven v Criminal Assets

Bureau [2004] 4 IR 434. Put another way, the District Judge was not, on the applicant’s case, “sitting” in District Court Area No. 10

when he issued the warrant. Counsel submits that the District in which he was sitting at the time he issued the warrant was the

Dublin Metropolitan District being a district to which he was not assigned, and not the district to which he was permanently assigned.

He argues that, this being so, the decision in Creaven supra., determines the issue. He contends that there are only three

circumstances in which the warrant could have been lawfully issued, namely, by a judge assigned to the relevant District Court Area

who resides in that District, if the warrant issues from his home; in the alternative, if he resides outside the District to which he is

assigned, then he must issue the warrant from a District Court in the District Court Area to which he has been assigned; or in the

further alternative a judge who resides in the District Court area in question, if not already assigned to it, must be assigned

temporarily to that District, and may thereupon issue the warrant in respect of premises in that area. Only in one of these

circumstances, he says, can the warrant be validly issued in accordance with the judgment in the Creaven case, supra.

The respondent contends that the applicant wrongly interprets the decision in the Creaven case, supra., and that the District Judge

was, at all relevant times “sitting” in District Court Area No. 10. The judge was exercising the jurisdiction vested in him by virtue of his

permanent appointment to that District in respect of premises within that District, and no other. He was not exercising or purporting

to exercise jurisdiction on a temporary basis, or in the capacity of a judge temporarily appointed to a number of different Districts, to

none of which he had been previously assigned. He was not purporting to exercise jurisdiction in the place of any permanently

appointed judge of any other District, including the Dublin Metropolitan District, in which his home was situate. In the circumstances,

although physically issuing the warrant from his home, which was by chance outside District Court Area No. 10, it should be

understood and accepted that he was exercising jurisdiction only “in respect of” the District to which he was permanently appointed,

carrying out permitted work in respect of premises situate in such District only, and accordingly was “sitting” in that District for the

purposes of the relevant statutes, and in accordance with the above decision.

Conclusion:

The question of the validity of warrants has been dealt with and determined to a very substantial degree by the Supreme Court in the

relatively recent case of Creaven v Criminal Assets Bureau, supra. In that case the Supreme Court was considering an appeal from a

decision of the High Court (Finnegan, P. as he then was) concerning the jurisdiction of a District Judge to issue warrants in rather

unusual circumstances which can be briefly described as follows. For the purposes of allowing searches to take place at several

premises both within and outside the Dublin Metropolitan District, the President of the District Court appointed a District Judge

(already assigned temporarily to Dublin Metropolitan District) to act as a temporary judge in those other District Court Areas in which

the various premises were situate, and the District Judge thereupon issued search warrants, in respect of all the premises in question,

wheresoever situate, from Dublin. The case concerned a mix of search warrants, some under the provisions of s.55 of the Criminal

Justice Act 1994 sought pursuant to a request from the government of a foreign country to which the section applied. For the

purposes of this judgment it is not proposed to deal with the warrants issued under that section. In addition, however, there were

warrants issued under s.14 of the Criminal Assets Bureau Act 1996 under s.14 of which a District Judge could “issue search warrants

in respect of a place at which he or she had reasonable grounds for suspecting certain evidence could be found”. In the High Court

the learned President found that judicial acts could only be carried out while the District Judge in question was “physically within the

(relevant) area”, but that the warrants in question were “ministerial acts which could be exercised by a District Judge even if a

District Judge was not physically present in the District to which he or she was assigned”.

On appeal to the Supreme Court Fennelly, J. found that the District Judge who had issued the warrants was not “sitting” in any of the

relevant District Court Areas except the Dublin Metropolitan District. He further accepted the identification by the President of the

High Court of the issues affecting the jurisdiction of the District Court to issue warrants as being:

“Had the third respondent 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 districts (except

in the case of the warrant issued in the Dublin Metropolitan Districts”. (emphasis added)

In exercising the jurisdiction which the District Judge had exercised, he found that this could only have been achieved by the

combination of the exercise by the President of the District Court of the power to assign District Judges to more than one District

simultaneously, and the claim that the District Judge in question was not required, at least for the purpose of the power to issue

search warrants, to sit in the Districts to which he had been assigned. In that regard, Fennelly, J. stated:

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

multiple assignment of the third respondent, as from the fact that he purported to sit in the districts other than within the

districts in respect of which he purported to make orders.” (emphasis added)

On the second of the above issues, namely, whether a District Judge may exercise powers in relation to a District while sitting

elsewhere, Fennelly, J. noted that it had been agreed that this was the most difficult question which arose. Having considered the

correct interpretation of Sections 77, 78 and 79 of the Courts of Justice Act 1924, as amended, he held that the case was concerned

not so much with the devolution of power which existed in justices of the peace before 1922, but with a power to issue search

warrants newly created in 1994 and 1996 respectively. That power, he found, must be exercised within the Rules of the District

Court, or otherwise within the applicable provisions of the Courts of Justice Act 1924. The latter Act gave effect, he explained, to a

consistent policy for the exercise of the powers of District Judges by reference to districts to which they are assigned, and from

which it is implicit that “a District Judge cannot exercise his judicial power while sitting outside his district”. He concluded:

“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 … . Judges are assigned either permanently or temporarily to districts … .

Jurisdiction in civil and criminal matters and in respect of licensing is exercised by reference to the district … .

It appears from Order 34 of the District Court Rules 1997 that special provision is made in a number of 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 … 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 in his own district.

The crux of the present case is that the third respondent was not sitting in three of the 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 District 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 the third respondent 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.”

In this appeal, the respondent argues, with some logic, that the true interpretation of the above case of Creaven supra., must be

that provided the warrant is issued “in respect of” a District to which the District Judge has been assigned permanently, and provided

that in sitting as he did at his home in another District, he was not exercising the jurisdiction of any judge within that (latter) District,

the search warrant should be considered to have been issued and executed validly. The Court is of the view however that the matter

is determined clearly, and to the contrary import, by the Supreme Court in the above case, by which this Court is bound. It is true

that in his judgment Fennelly, J. indicated that there may be circumstances in which a judge “sitting within his own district” could

without offending any legal principle, issue a warrant to be executed in another District. There is, however, no suggestion in the

judgment that a District Judge assigned to a District is entitled to sit in another District (notwithstanding that this is, coincidentally,

where his home is) to issue a warrant in respect of premises in the District to which he is, as in the present case, permanently

assigned.

This Court notes that there were significant changes made to the law relating to the powers of a judge of the District Court, including

by implication those relating to the issuing of warrants, in Section 180 of the Criminal Justice Act 2006, but of course that legislation

was passed well after the issuing of the warrant in the present case, in August 2003, and is not retrospective, even if, without

expressing any concluded view on the matter, those changes in the legislation might have resolved the difficulties which arose in the

present case.

It is also the case that prior to the passing of the Courts of Justice Act 1924, and having regard to the interim position arising under

the Courts of Justice Act 1923, a justice of the peace under the Petty Sessions (Ireland) Act 1851 would have had certain powers

extending beyond the immediate county to which the justice of the peace had been appointed. Section 7 of the Act of 1851 provides

as follows:

“1 A justice for any county may act as such in all matters arising within such county, although he may at the time happen

to be at an adjoining county provided he shall also be a justice for such adjoining county.

2 A justice for any county may in like manner act as such in all matters arising within such county, although he may at

the time happen to be in any city town or place, being a county of itself situated within or adjoining to such first

mentioned county, whether he shall be a justice of such city town or place or not; but nothing herein shall extend to

empower any justice for any county not being also justice for any city town or place as aforesaid, or any person acting

under him, to act or intermeddle in any matters arising within any such city town or place.”

If that jurisdiction had been maintained, it might have permitted the District Judge in the present case to issue the warrant which he

did, since the judge was sitting in a county adjacent to the one to which he was permanently appointed and was not intermeddling in

any matter arising within that adjoining county. However as in the case of the warrants in the case of Creaven v Criminal Assets

Bureau supra., the warrant in the present case was issued pursuant to post 1922 or even 1924 legislation, in the present case under

the provisions of s.136(5) of the Finance Act 1999 and the issue concerns the power of the District Judge to issue search warrants

newly created in that year, which must, according to the above decision, 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 1924. The Court bears in mind

also the comments of Fennelly, J. in the case of Creaven supra., that the role of the Justice of the Peace under the pre-1922

legislation was in a number of respects wider than that of a District Judge under legislation covering that position.

The real issue in the present case concerns the power of a District Judge in exceptional circumstances - in the present case during

vacation sittings - to issue warrants from his home when this is not situate in the same District Court Area to which he has been

assigned, whether permanently or temporarily. That position is not covered expressly in the Creaven v Criminal Assets Bureau case

supra. It is impossible to conclude however, bearing the terms of that judgment in mind, that the position is otherwise than as

follows, namely that unless a District Judge is “sitting” in the sense of being physically present in the District Court Area to which he

has been assigned, he did not, at the time of the events in question, have power to issue search warrants, including those otherwise

permitted to be issued by him pursuant to the provisions of s.136(5) of the Finance Act 1999 as amended.

In consequence, this Court finds that the warrant was issued invalidly, in the sense that the District Judge had no jurisdiction to issue

it. That being so, it was issued without authority and the property seized should, in accordance with the decision in Creaven, supra.,

ordinarily be returned.

The Consequences of the finding of invalidity of the warrant:

Counsel for the respondent contends however, that if even the warrant is found by this Court to have been issued invalidly,

nevertheless the trial judge’s admission of the materials seized pursuant to it should be upheld, having regard to the circumstances of

the case and the jurisprudence in that regard. This is based on the following argument: the application for the warrant was made in

good faith, to the judge considered to be the appropriate judge, in respect of premises over which he would normally have all

appropriate power to issue a warrant, prior to the later decision in Creaven, supra., and it was executed without any infringement of

the applicant’s constitutional rights. It was executed at commercial premises, which were not at the time owned by the applicant,

and to which in any event no constitutional inviolability attaches. It is further argued on behalf of the respondent that the materials

could have been seized even without a warrant, because of the combination of the powers found in s.136(1) and s.141 of the Act of

2001. Moreover, the return of the documents in the Creaven decision was logical because that was a judicial review proceeding, and

the position in a criminal trial is different, because even if the warrant was invalid, that did not render the materials seized

automatically excluded or inadmissible.

Mr. Humphreys submits that, having regard to the judgment of the Supreme Court in the Creaven case, supra., and in particular its

finding that the materials should be returned to the applicant in that case, the same position should obtain here. He says the law

established in that case is declaratory of the true position at all times, both before and after that case. He submits, again invoking

case law, that there was a violation of the constitutional right of the applicant, which extend, according to that case law beyond the

inviolability of the dwelling house, and that the legal consequences are not altered by the fact that the wrongdoing may have been

carried out in good faith. He argues that there are no extraordinary excusing circumstances which would have permitted the trial

judge to admit the materials. In the circumstances there should be not only a return of the materials, but the Court should further

quash the conviction and direct that there should be no retrial.

Conclusion

In the course of the voir dire before the trial judge on the validity of the warrant, and before this Court, counsel for the respondent

argued that the procuring of the search warrant was not necessary, because there was a right in an authorized person to enter the

premises, pursuant to s.136(1) of the Finance Act 2001 as well as a right to seize certain goods pursuant to s.141 of the said Act.

The Court is not convinced however that it follows from the limited powers to enter premises, set out in the provisions of s.136(1),

set out above, and the equally limited power in s.141 to seize certain goods or materials (“Any goods or vehicles that are liable to

forfeiture under the law relating to excise may be seized by an officer”) can assist the respondent. The warrant to seize pursuant to

Section 136(5) appears to this Court to be a free standing warrant, required in circumstances where the conditions in that Section

are fulfilled. If it were at all times permissible to seize the materials because they all inevitably come within s.141, there would be no

need for s.136(5). Rather, it seems to the Court that the provisions of s.141 might well not concern all of the materials which were

seized pursuant to the warrant, and there was no evidence that it did, and that it was essential for the purposes of establishing the

offence at trial, to have all of the materials actually seized pursuant to the warrant. In the circumstances, the Court does not accept

that the respondent can rely on the combination of the Sections he invokes to support the contention that the goods or materials

could at all times have been lawfully seized without the backing of the impugned warrant.

Secondly, as to counsel’s argument on behalf of the respondent that there was no breach of any constitutional right to property

vested in the applicant, because the property at which the materials were seized was not, or was no longer the property of the

applicant, and the case law establishes that the right may be invoked only by the owner of the property affected, the more recent

case law appears to suggest that the breach of rights is now wider than that covering only the dwelling house of a citizen. There was

very strong jurisprudence, including the decision of the Supreme Court, The People (Attorney General) v O’Brien [1965] IR 142, and

cases following thereon, that where evidence had been procured deliberately in breach of the constitutional right of an accused in

respect of his dwelling house, it did not necessarily render the evidence inadmissible. The wording used in the more recent case of

DPP v Kenny, [1990] 2 IR 110, more fully discussed below, appears to this Court to support a wider protection.

Thirdly, as to the argument made on behalf of the respondent that even if it were to be held by this Court that the constitutional

rights of the applicant had been breached in the course of securing or obtaining the materials in question, that does not end the

matter, this Court agrees that this is so. Mr Humphreys submitted that the Court should follow the decision in the case of DPP v

Kenny, supra., and find that the evidence was inadmissible, because no extraordinary excusing circumstances exist which can be

invoked. There, in a majority judgment of the Supreme Court, on a reference pursuant to s.29 of the Courts of Justice Act 1924, and

by which decision this Court is bound, it was held:

1. That evidence obtained as a result of a deliberate and conscious violation of constitutional rights of a citizen must be

excluded unless the court in its discretion was satisfied that there were extraordinary excusing circumstances which

justified the admission of the evidence or that the act constituting the breach of the constitutional right was committed

unintentionally or accidentally.

2. That in deciding whether the violation of constitutional rights was carried out consciously and deliberately the test was

whether the act complained of was conscious or deliberate and it was immaterial whether or not the actor knew that

what he was doing was in breach of the constitutional rights of the accused.

The facts in the present case appear to this Court to fall within the ambit of these principles.

A more recent decision of the Court of Criminal Appeal may also be apposite in the present case, namely the decision in DPP v Balfe

[1998] 4 IR 50. In that case, the facts of which are not of any great relevance, the Court in a judgment delivered by Murphy, J.

stated:

“… where a judge of the District Court acting within his jurisdiction agrees to issue a search warrant, a mistake, however

gross, in the recording of his order will not necessarily render the warrant invalid for all purposes though it might justify

persons to whom it was addressed, or intended to be addressed, declining to cooperate with it. Where, however, the

search warrant is made without authority, then it has no value in law, however innocent the mistake in granting the same

or however apparently plausible the document issued.” (emphasis added)

This Court has found that the warrant which issued, issued without authority, in the sense that there was no jurisdiction at all to

issue it, and the Court attaches considerable importance to this particular status, having regard to the above judgment. While not

stated expressly in the judgment that the consequences of the phrase “made without authority”, it is considered that, in light of the

distinction drawn, the most likely intention of the court was that material seized in the absence of any authority could not be lawfully

admitted.

Having regard to the decisions in the case of DPP v Kenny, and in DPP v Balfe, supra., the Court is not satisfied that it can accept the

argument presented on behalf of the respondent.

The Court finds, bearing in mind the foregoing, that the warrant was issued invalidly, having been made without authority, and

therefore cannot be relied upon. Nor can the materials seized pursuant to the same be considered to have been properly admitted.

The application for leave to appeal against conviction is to be treated as the hearing of the appeal, and must succeed. The

conviction will therefore be quashed on the above ground. It is unnecessary in the circumstances to treat the second of the grounds

relied upon.

The Court is not disposed to make any order or issue any direction, as requested by Mr Humphreys on behalf of the applicant, as to a

possible retrial. The Court is satisfied that such a direction or order is not appropriate.