While dismissing a man's appeal against a 10-year sentence for drug offences, the Court of Criminal Appeal yesterday sent a strong signal that gardaí must strictly adhere to the relevant legislation when seeking search warrants in drug cases.
Mr Justice Hardiman, presiding over the three-judge court, said it was not the case that gardaí were free to choose whether to apply to a district judge, a peace commissioner or a Garda chief superintendent for a search warrant.
The warrant should be sought from the judge or peace commissioner in the first instance, unless there were urgent and practical reasons for not doing so. It was not a matter of indifference which of those three issued the warrant.
There was a constitutional importance involved in adhering to proper procedures when searching private dwellings and it was clear that the power of a Garda officer to issue a warrant was an emergency provision, he added.
He made the remarks when the court was dismissing an appeal by a Co Carlow man against his conviction and 10-year sentence for having some €50,000 worth of cannabis resin and 500 ecstasy tablets.
Peter Byrne, a father of four, of Seven Springs, Carlow, was arrested following a Garda surveillance operation in Galway on February 20th, 2001. He was apprehended at a house at Lurgan Park, Renmore, Galway, which was said to be the home of a major drugs dealer.
In his appeal against conviction, Byrne relied on one ground: that the warrant obtained for the search of the house at Lurgan Park was invalid in that it was obtained from a Garda chief superintendent in circumstances where no efforts were made to first secure a warrant from either a district judge or a peace commissioner. After considering submissions on behalf of Byrne and the DPP, who opposed the appeal, Mr Justice Hardiman, sitting with Mr Justice O'Donovan and Mr Justice Herbert, said the court was satisfied Byrne had raised a substantial, if technical ground.
However, the court had power, on hearing an appeal, to affirm a conviction - where it was satisfied no miscarriage of justice had occurred - notwithstanding its opinion that a point raised in the appeal might be decided in favour of the appellant. In circumstances where it was satisfied that no miscarriage of justice had occurred and that there was adequate evidence on which the jury had convicted Byrne, the court said it would not grant the appeal. It was also satisfied there were no exceptional circumstances to justify reducing the sentence.
Mr Justice Hardiman said Section 26 of the Misuse of Drugs Act provided for a search warrant to be sought from a district judge or peace commissioner. Section 8.2 of the Criminal Justice (Drug Trafficking) Act, 1996, provided a search warrant could be issued under Section 26 by a Garda officer not below the rank of superintendent where there were urgent circumstances making it impractical to apply to a district judge or peace commissioner.
In this case, the warrant was issued by a Garda superintendent.
A surveillance operation was under way in Galway on February 20th, 2001. At 12.35 p.m., gardaí rang the superintendent. It was clear this was to put him on call to be available to hear an application for an urgent search warrant. The superintendent issued the warrant some 20 minutes later.
This was done without, on the evidence, any inquiry being made as to the availability of a district judge or peace commissioner.
While the DPP had said it might have been impractical then to get either of those persons, a grave legal issue arose as to whether that excuse would prevail in circumstances of a long surveillance operation and a prior phone call to the superintendent, Mr Justice Hardiman warned.
