A garda, who used his initiative to gain entry to a block of flats after seeing a partly open window, had committed “a significant trespass” into a one-room studio where a man and his partner were asleep, a judge has ruled.
Judge Francis Comerford, in the Circuit Civil Court, said the open window was a temptation to Garda Kevin Lawless but he had no idea who was in the flat for which gardaí had no search warrant.
He said there was a warrant to enter other apartments in the building at 10 Bessborough Parade, Rathmines, Dublin, but the initiative shown by Garda Lawless had gone too far.
Barrister John Ferry told the court that Department of Justice civil servant Gerard Forbes woke to a torch shining in his face and raised voices from the window used to gain entry.
Mr Ferry said it was two-and-a-half years after the November 2011 incident that Mr Forbes had been supplied with a warrant, albeit for other flats in the complex.
Run-around
Judge Comerford said in a reserved judgment that Mr Forbes had been given the run-around by the authorities and the fact that there had been a lack of co-operation reflected badly on the gardaí.
Peter Leonard, counsel for the Garda Commissioner and the State, told the court the force had a warrant to search a number of flats in the building (not including Mr Forbes's studio) and an arrest had been made of "a female target" in another part of the house.
Judge Comerford said he accepted that after Garda Lawless had gained entry through the window he had been given consent by Mr Forbes to continue through his studio to open the front door of the building to allow other gardaí gain access.
The judge said Garda Lawless had entered Mr Forbes’s flat before that consent had been given and on the garda’s own evidence there was a significant trespass into Mr Forbes’s dwelling place.
“I am satisfied there was consent for the entry between the time Garda Lawless shone the torch on Mr Forbes and the time he entered the flat,” Judge Comerford said.
He said the gardaí did not have sufficient regard for a private dwelling place they were seeking to use to gain access to another flat for which they had a warrant.
Judge Comerford said he did not accept evidence by Mr Forbes that a second garda had entered his room after Garda Lawless and had assaulted him by pushing him or throwing his mobile phone across the room when he attempted to call his local Garda station.
Awarding Mr Forbes €9,000 damages for a “trespass of a very transient nature,” Judge Comerford said it had nevertheless been more than a technical trespass heightened by the fact that the entry had been into a bedroom.